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The opinion of the court was delivered by West, J.: The plaintiff sued Hicks for a balance due on a promissory note and filed an affidavit for attachment. The return of the sheriff stated that thirty-four head of cattle, the property of Hicks, were levied upon. Elmore, the interpleader, gave a bond which recited that “an order of attachment has been issued in said action, and the property of said B. H. Hicks has been attached, and is now bound therefor, which property the sheriff of said county now returns to the said B. H. Hicks, defendant in said action,” and which bound the obligors “that said property or its appraised value in money shall be forthcoming to answer the judgment of said court in said action.” The bond was given on October 19, 1912, and on November 18 Elmore asked leave to intervene, alleging that he was the owner of twenty-three head of the cattle attached. His inter-plea was verified, and the plaintiff answered by the verified allegation that Elmore was estopped from claiming the property by reason of having given a forthcoming bond for its return by the sheriff as the property of Hicks, which was returned to him by virtue of the bond. To this answer a verified reply was filed by way of denial, but admitting the giving of a bond that the attached property might not be moved from the place where it was found, and alleging that at the time of the levy the interpleader notified the sheriff of his ownership. The court made findings of facts from which it appears that in September, 1912, Elmore and Hicks entered into an agreement by which the latter was to buy cattle for the former. Elmore provided what he called a cattle account and replenished the same from time to time with his checks and with the money received for cattle purchased by Hicks with the cattle fund. In buying cattle the checks were written and signed by Hicks but on the lower left-hand corner of each were written the number of cattle and the letters J. E. E. Of the thirty-four cattle seven belonged to a third party and were afterwards sold by the mortgagee, and four belonged to still another party and were delivered to him, but the twenty-three head of cattle involved were the property of Elmore, and Hicks had no title thereto whatever. An agent of the plaintiff went with the sheriff to the Hicks place and levied upon the thirty-four head of cattle after having met Hicks who informed them that he had no cattle of his own and that those on his place belonged to Elmore. Before the levy was made Elmore himself went to the Hicks place and there informed the sheriff and the plaintiff’s agent that twenty-three head of the cattle about to be levied upon belonged to him. The sheriff refused to levy without an indemnifying bond which was promised by the agent and afterwards given. . The sheriff then levied upon all of the cattle and informed Elmore that he would remove them from the Hicks place unless a forthcoming bond should be given by Elmore. The latter then stated that he would give a bond to prevent the removal of his own cattle. He, to gether with the sheriff and the agent, then went to Elmore’s bank in the evening, after it was getting dark, where the sheriff prepared a bond which Elmore signed without reading it and which covered all the cattle attached. There was no dispute whatever as to the ownership of the cattle in question or the remainder making up the thirty-four head. The trial court decided that Elmore was not estopped from claiming the twenty-three head of cattle found to be his. The plaintiff, appeals and insists that by the settled law of this state the interpleader is estopped. We will notice each of the decisions relied upon to sustain the plaintiff’s position. In Nye v. Weiss, 7 Kan. App. 627, 53 Pac. 152, a redelivery bond in replevin was involved, and it was held that the defendant was estopped to deny his possession of the property at the beginning of the action. In Haxtun v. Sizer, 23 Kan. 310, the property was attached as belonging to the defendant. A bond was given by a third party, reciting that it had been so attached and that as the sheriff had delivered it to the obligor it should,be forthcoming to answer the judgment of the court in the action, or in default thereof its appraised value would be paid to the plaintiffs. After the property had been returned to the obligor judgment was obtained against the defendant in the action. Five months after making the bond the maker filed an interplea, claiming the property attached, and asked that the attachment be discharged as to such property. To this the plaintiff answered, setting up the bond, the delivery of the property, and alleging that the maker of such bond converted the property and failed to comply with the undertaking. A demurrer to this answer was sustained, and this was held to be erroneous, the syllabus reciting that “by the admission, promise, and conduct of D. & Co. they are estopped from denying that the property belongs to S.” The opinion cites and follows Sponenbarger v. Lemert, 23 Kan. 55, involving a redelivery bond in a case before a j ustice of the peace, in which it was said the makers substantially admitting that the property belonged to French estopped them from afterwards denying that it belonged to him. “Parties can not be allowed to gain advantages (the possession of the property levied on) by making admissions, and then to deny the truth of such admissions, to the injury of others who relied upon their truth, and who had a right to rely thereon.” (p. 62.) In Wolf v. Hahn, 28 Kan. 588, the attachment was levied upon property in possession of Hahn, who went to Wells and induced him to execute a bond for the forthcoming of the property or its appraised value to answer the judgment. The constable returned the property to Hahn, who kept it till after the judgment had been rendered, and then delivered it to the constable, by whom it was sold. After the sale Hahn sued the constable to recover the value of the property, and it was held that he was estopped, although he had not signed the bond himself, as the property was in his possession at the time of the levy, and he procured the bond to be executed and thereby reacquired possession. Hahn was not a defendant in the original action, but the levy was made upon the property in his possession. In Case, Bishop & Co. v. D. M. Steele & Co., 34 Kan. 90, 8 Pac. 242, Steele & Co. sued Doty Brothers & Co. and attached certain barbed wire which was then in possession of Case, Bishop & Co., having been mortgaged to them by the Doty firm. Less than one month later Case, Bishop & Co. executed a forthcoming bond, conditioned that they should hold the property and return the same or the appraised value thereof if the court should so order, and comply with the orders and judgments of the court in relation thereto. In pursuance of this bond the wire was redelivered to the obligor, who afterwards filed an interplea, claiming the property under the chattel mortgage. The plaintiff answered, setting up a general denial, alleging that the mortgage was fraudulent, and estoppel by reason of the bond. Afterwards judgment was rendered for the plaintiff in the original action. After that a trial was had upon the interplea, resulting in a holding by the trial court that Case, Bishop & Co. were estopped by reason of having given the bond. This ruling was affirmed, although it was urged that D. M. Steele & Co. were not induced to change their condition in any way and that the sheriff was informed of the claim of the mortgagees before the levy was made. The court said that when Case, Bishop & Co. gave the bond they virtually admitted thereby that the property belonged to the defendants and was subject to the levy, and virtually abandoned all claims under their chattel mortgage, “otherwise, they should not have given the bond, but should at once have filed their interplea, or commenced an action of replevin for the property, or commenced an action in the nature of trover for damages.” (p. 94.) Referring to the fact that the sheriff and the plaintiffs had been informed that the obligors claimed the property under their chattel mortgage, the court remarked (p.. 95) that the plaintiffs, however, claimed that the mortgage was void, 'and that this was tacitly admitted by giving the bond for the return of the property, and added: “Bonds are not made to be violated with impunity. Bonds should mean something; and when parties execute them, they should intend to fulfill them. If they bind themselves to return the property or its appraised value, they should do so. They should not be allowed to get the possession of the property by agreeing to return it or its appraised value when they never intend to return either. Parties should act in good faith; but if they do not, then the laws should be such as to compel them to do so.” (p. 96.) In the case of Peterson v. Woollen, 48 Kan. 770, 30 Pac. 128, it was held that one who had signed a redelivery bond as surety was estopped from claiming the property as against the officers and the attaching creditor, although such surety had been induced to sign the bond by misrepresentation of the attaching officers as to the legal effect of signing it. It seems that Case, Bishop & Co. sued Peterson and attached certain property as belonging to him, and his wife joined with him in executing a redelivery bond. It was alleged that the officers told the wife that if she would sign the bond she could keep the property, but otherwise it would be taken away from her; that if she signed she would save her property, and that signing of the bond would not affect her rights therein or prevent her from claiming the same. This was regarded as mere opinion, and it. was said that she knew the circumstances and knew, if such was the fact, that the property attached belonged to her; that she had no right to rely on the opinion of the officers or any persons whose interest was adverse to her own, and such reliance would not aid her in avoiding the estoppel created by signing the bond. In 1877 provision was made by statute for an inter-plea by any person claiming property attached. (Laws 1877, ch. 137, § 1.) The present civil code (§45) gives the right to any person claiming property attached as the property of another. So, unless the interpleader was barred by his own estoppel, he had a statutory right to proceed as he did. Section 200 of the civil code provides that the sheriff shall deliver the property to the person in whose possession it was found, upon his executing in the presence of the sheriff an undertaking conditioned that the property, or its appraised value in money, shall be forthcoming in answer to the judgment of the court in the action. The theory of the plaintiff appears to be that as the bond recited that the property of Hicks had been attached and was bound by the order of attachment, Elmore thereby estopped himself from claiming otherwise and that the bond obligated him to see that the property attached, or its appraised value, should be forthcoming to satisfy the j Udgment. The defendant argues that unless Elmore in some way induced the sheriff or plaintiff to rely on the re cital, neither could have been harmed by his subsequent claim of ownership. The plausibility of this argument is increased by the facts that the sheriff and the plaintiff’s agent had full knowledge in advance, from Hicks and Elmore both, that the cattle now under consideration belonged to Elmore; that an indemnifying bond was required, and after the forthcoming bond was given the sheriff remarked to Elmore that he would have to fight it out with the plaintiff’s agent. In Manufacturing Co. v. Bean, 20 Mo. App. 111, under statutes very similar to sections 45 and 200 of our civil code, it was held that one who gave a forthcoming bond as trustee for attached property, and before the cause came on for trial obtained leave to interplead as trustee for his beneficiary, was not estopped so to do. The bond there also recited that the property had been attached as that of the defendant. It was said that had he made no claim to the property he would have been estopped from claiming it as his own, but having given written notice, verified by his affidavit, of his claim to the property seized by the sheriff, which notice was certified to in the return, he would not be estopped; that by interpleading in the action he did not attempt to dispose of the property contrary to any judgment that might be rendered, but asked the court to render judgment in favor of his right to the property. “Had such judgment been rendered it would hardly have been contended that the interpleader would have failed to comply with the obligations of the bond. . . . The judgment of the court was to be in accordance with the rights of all the parties in interest. By his interplea the interpleader placed the property subject to the order of the court, which was a compliance with, and not a violation of, the terms of the bond.” (p. 119.) To a similar effect is the decision in Mansur v. Hill, 22 Mo. App. 372. In Huels v. Boettger, 40 Mo. App. 310, it was held that when the owner of property levied upon by writ of attachment against a third person, was in possession at the time of the levy and verbally notified the attaching officer of his title, neither his giving a forthcoming bond and surrendering the property on the order of the court nor his failure to claim the same in writing will estop him from claiming it after such surrender. In Petring v. Chrisler, 90 Mo. 649, 3 S. W. 405, it was decided that in the absence of a showing that the attachment creditor was deceived or in some way induced to alter his position to his own injury or prejudice with reference to the property of his debtor in consequence of giving the delivery bond by the interpleader the latter will not be estopped from asserting title to the property. In Bleven v. Freer, 10 Cal. 172, the owner of property attached as that of another gave an accountable receipt for its delivery to the officer, reciting that it had been levied upon as the property of the debtor, and it was held that if he had made known his claim to the officer before giving the receipt he would not have been estopped from afterwards asserting it. (See, also, Tuttle v. Wheaton, 57 Iowa, 304, 10 N. W. 748.) It will be observed that in the Haxtun case there was an allegation that the claimants converted the property to their own use and failed to comply with the bond, and the estoppel was based upon the “admission, promise and conduct.” In the Hahn case the claimant kept the property until after the judgment, and then delivered it to the constable, who sold it, and it was not until after all this had been done that the claimant sued to recover the full value of the property. In the Peterson case the defendant’s wife, who claimed the property attached, sought to relieve herself from the estoppel caused by signing the bond by throwing the responsibility upon the sheriff who gave her certain legal advice Which turned out to be unsound. Indeed she claimed that she was induced to sign by fraudulent misrepresentation of the officers who took it, and this appears to have been the vital issue' tried and de termined. It is proper to observe also that the bond in this ease was not strictly a statutory one. It did not need to contain the recital as to the defendant’s ownership. Indeed the statute (Civ. Code, § 200) seems to contemplate and provide only for a bond given by one in whose possession the property is found — -in this case, Hicks. In the Case, Bishop & Co. decision — the one most strongly relied on — it was stated that when the chattel mortgage was executed the mortgagors were insolvent. The mortgage covered their entire stock of hardware which was all the property they owned subject to the payment of debts. While the mortgagees asserted their claim before the levy was made, the plaintiffs regarded the mortgage as void, and the court deemed the execution of the bond a tacit admission of such invalidity. And in concluding the reasons why they should be deemed estopped it was said: “Parties should act in good faith; but if they do not, then the laws should be such as to compel them to do so.” (34 Kan. 96.) This indicates that the real basis for the estoppel was not mechanical but moral — not technical but substantial. The general rule was stated in Dent v. Smith, 76 Kan. 381, 92 Pac. 307: “Before the acts of one person can be successfully invoked as an estoppel by another, such other must have relied upon and been prejudiced by the acts of which he complains.” (Syl. ¶ 1.) A more recent decision went upon the rule that estoppel must involve a lack of good faith or fair treatment. (Commission Co. v. Tate, 91 Kan. 538, 138 Pac. 602.) There an execution was issued in favor of the company and against certain parties and levied on cattle in their possession. The defendants claimed the cattle, and after the levy induced the sheriff to surrender possession to them by giving a bond reciting that they owned them and binding themselves that the property or a sufficient sum of money to answer the judgment should be forthcoming “in case it shall be found that plaintiff is entitled to hold the property . . . or any portion or part of it” (p. 539), which bond was by the sheriff returned with the execution. The obligors filed a motion in the action claiming the property. The plaintiff objected to trying the matter by motion and sued for the amount specified in the execution. The claimants answered asserting title, and recovered. It was said while the instrument was not a forthcoming bond, the purpose was to substitute it for the property until the plaintiff’s right to hold the cattle could be adjudicated, and that while the method pursued to assert title was not orthodox this did not render .the owners liable to pay the defendants’ debt, and “there is nothing in the conduct of the defendants on which to found estoppel, which must rest upon a basis of-equity and good conscience.” (p. 541.) It is impossible to read the record before us without coming to the conclusion that the plaintiff by its agent directed the sheriff to levy upon these cattle after the fullest assertion of title by Elmore, supported by the declaration of Hicks. When the sheriff had been assured of a bond to hold him harmless he proceeded. In his return he recited the claim of Elmore and the fact that he had given a bond. In other words, without any deceit or any inducement except the desire to collect the debt the plaintiff company with .its eyes open took its chances in levying upon Elmore’s property to pay Hicks’ debt, and now insists that the mere recital in the bond estops him from showing the very title he asserted before the levy was made. There is no claim that he misled the plaintiff or caused it to change its position in any respect to its injury. By no possible course of reasoning could any justice or equity be found in such a claim, and no decision has been cited which compels thus rewarding the plaintiff merely because a certain recital was “nominated in the bond.” The judgment is affirmed.	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The opinion of the court was delivered by Porter, J.: In his action plaintiff sued for damages arising from the failure of the telegraph company promptly to deliver a telegram. The jury returned a verdict in his favor for $600, and made a number of special findings. The court sustained a motion for judgment on the findings in favor of the defendant,, and the plaintiff has appealed. The plaintiff was living in Tucson, Ariz. Sometime-previous to May 28, 1910, he had purchased, through a firm of brokers in Kansas City, ten thousand bushels of corn for July delivery. The original purchase price was. sixty-four and five-eighths cents. It was a marginal deal in accordance with the quotations, rules and regulations of the Chicago Board of Trade. From the time the corn was first purchased the prices fluctuated considerably, and the plaintiff at various times had sent money to his Kansas City brokers to keep his deal properly margined. On May 27 they delivered to the defendant at Kansas City a telegram, to be transmitted to him at Tucson, reading as follows: “July corn fifty seven and three eighths. Remit three hundred. Answer quick.” The message was delivered to him May 28 at twelve-thirty P. M., along with another telegram from his brokers, dated May 28, reading as follows: “Sold ten July corn fifty-six and seven-eighths.” Upon receipt of the telegrams plaintiff wrote the brokers the following letter: “Tucson, Ariz. May 28,1910. “Houston, Fible & Company, “Dear Sirs : “Your telegrams of the 27” and 28” received at 12:30 P. M. today. Sorry I failed to get the one you sent yesterday calling for $300.00 margin, which I would have sent by return wire for I- believe there will be a time in next month when July corn will sell much higher than it is now. When I got the morning paper and seen July corn closed yesterday at 58% I wired you $150.00 at 9 A. M. our time but I suppose you failed to get it in time. If there is any loss by me being closed out of this deal the Western Union people are responsible for it for they had my address and there was no excuse for delay in delivery.’ Please send me a draft for my balance account. I remain your respectfully, Oliver Maddux, 1124 S. 4 Avenue, Tucson, Ariz.” Plaintiff testified that he got the Chicago market reports every morning through a newspaper published at El Paso, which gave the market of the day before. The jury find that subsequent to May 28, 1910, the plaintiff made no attempt to reinstate the deal, which he was informed his brokers had closed out. The findings also show that the next opening of the market was on Tuesday morning, May 31, Sunday and Decoration day having intervened, and that the opening quotation of July corn on that morning was fifty-six and one-eighth cents. The jury further find that if the plaintiff had directed his brokers to reinstate his deal, arranging for the necessary margin of $300, prior to the opening of the market on May 31, his brokers would' have repurchased the corn for his account. This finding is based upon the correspondence between the parties, which showed their willingness to reinstate the transaction if the plaintiff had so desired. It is conceded that the defendant was negligent in its failure to deliver the telegram promptly; but it conclusively appears from the findings that plaintiff suffered no loss by reason of the negligence. If July corn had advanced in price before plaintiff had time to repurchase, he might have shown a loss occasioned by the failure to receive the telegram in time; but instead of having advanced, July corn was lower the next market day than it was when the telegram was sent. Let us suppose that by the defendant’s failure to promptly deliver a telegram plaintiff had been prevented from closing a contract for the purchase of 10,000 bushels of actual corn which he desired to feed to stock, and that corn in the meantime advanced in price, so that in order to obtain the necessary corn he had been obliged to pay three cents a.bushel more than if the contract had been completed. It is clear that his damages in such a.case would be the difference between the contract price and the price he would have to pay to procure the corn. If, however, in the supposed case, corn instead of advancing had receded in price and the plaintiff could have gone upon the market the next day and purchased the same amount at a lower price than his proposed contract called for, he could not show that he was damaged at all by the failure to complete his contract. In any event he could recover only such damages as were the natural and necessary result of defendant’s negligence, after he had exercised reasonable care to minimize his loss as far as possible. A party is never permitted to recover damages which by reasonable care he could have avoided. (37 Cyc. 1756, 1757.) In the recent case of Holly v. City of Neodesha, 88 Kan. 102, 127 Pac. 616, the plaintiff sued to recover damages for the wrongful shutting off of water which was necessary for him to have in order successfully to carry on his business as a florist. In the course of the opinion it was said: - “Under the circumstances it was the legal duty of the plaintiff to secure water from the city at once, and the measure of his damages would have been the amount he would have been obliged to pay in so doing, and the amount of damages, if any, provable to the time water could have been again turned on. (K. P. Rly. Co. v. Mihlman, 17 Kan. 224, 234; Town Co. v. Leonard, 46 Kan. 354, 358, 26 Pac. 717; Frick Co. v. Falk, 50 Kan. 644, 32 Pac. 360.)” (p. 113.) An extreme case which illustrates the rule is Loker v. Damon, 34 Mass. (17 Pick.) 284. That was an action in trespass for removing a few rods of fence. The plaintiff knew the fence was down but neglected to repair it. The measure of damages was held to be the cost of repairing the fence and not the injury to the following year’s crop caused by cattle passing through the opening. In cases of contract as well as of tort the rule is that it is the duty of an injured party to do whatever he reasonably can to lessen the injury. (Chamberlin v. Morgan, 68 Pa. St. 168.) The same rule has often been applied in cases involving the conversion of bonds and stocks. In Baker v. Drake, 53 N. Y. 211, 13 Am. Rep. 507, the defendant, a broker, was carrying stock for the plaintiff on a margin. In an action for damages for the unauthorized sale of the stock the plaintiff recovered in the lower court the highest price between the time of conversion and the time of trial. The judgment was reversed by the court of appeals in an able opinion by Judge Rapallo, reviewing all the cases. In the opinion it was said: “The customer is entitled to recover such damages as would naturally be sustained in restoring himself to the position of which he has been deprived. He certainly has.no right to be placed in a better position than he would be in if the wrong had not been done.” (p. 217.) From the letter written by the plaintiff to his brokers it is apparent that the plaintiff was under the mistaken impression that he could, without attempting to repurchase or reinstate his deal, look to the telegraph company to carry it for him, and in the event July corn advanced in the market, recover from the defendant the difference in price. In Devlin v. Pike, 5 Daly (N. Y.), 85, Daly, Ch. J., stating the rule in such cases, said: “If the property converted or to be delivered consists of merchandise which is ordinarily bought and sold in the markgt for the purpose of traffic, the plaintiff is entitled to recover the highest market price which that kind of merchandise may have reached between the time of the breach or conversion and a reasonable time within which to replace it, or to bring the action; that what is a reasonable time depends upon the circumstances of the particular case, and where the facts are undisputed is a question of law.” (p. 95.) In Wright v. Bank of the Metropolis, 110 N. Y. 237, 18 N. E. 79, 6 Am. St. Rep. 356, it was declared to be the duty of the injured party to repurchase the property in a reasonable time, and that when the facts are undisputed and different inferences can not reasonably be drawn from the same facts, what is a reasonable time becomes a question of law. Referring to a supposed difference between the case of one engaged in a stock speculation and the case of an absolute owner of stock wrongfully sold by the pledgee, it was said in the opinion: “But in both cases the qualification attaches that the loss shall only be such as a proper degree of prudence on the part of the complainant would not have averted, and a proper degree of prudence on the part of the complainant consists in repurchasing the stock after notice of its sale, and within a reasonable time. If the stock then sells for less than the defendant sold it for, of course the complainant has not been injured, for the difference in the two prices inures to his benefit. If it sells for more, that difference the defendant should pay.”' (p, 247.) In the opinion it is also said: “But to presume, in favor of an investor, that he would have held his stock during all of a period of possible depression, and would have realized upon it when it reached the highest figure, is to indulge in a presumption which, it is safe to say, would not be based on fact once in a hundred times.” (p. 248.) To the same effect is Gruman v. Smith, 81 N. Y. 25; Colt v. Owens et al., 90 N. Y. 368, where it was held to be the duty of the plaintiff to repurchase the stock within a reasonable time. The evidence shows and the jury found that if plaintiff’s deal had been carried on he could have exercised the option to close it at the market quotation any time during July, and that on July 30 July com opened on the Chicago Board of Trade at sixty-three cents. Upon the theory that if his purchase had not been closed out he would have carried it until the last day of July and realized the difference between the price at which he was closed out and the highest price reached during the month of July, the jury awarded him as damages the difference between the two quotations. Manifestly the theory upon which the jury proceeded is purely speculative and one which experience has shown had more chances against than in its favor. However, the plaintiff could not remain supine and inactive; the duty rested upon him to make reasonable exertions to help himself and thereby reduce his loss, and at the same time lessen the responsibility of the party at fault. The measure of his damages, if he sustained any, was necessarily the difference between the price at which his corn was sold out and the price at which he could have repurchased within a reasonable time thereafter, which was Tuesday, May 31, the first day the market was open, at which time his com could have been re-bought at a lower figure than the price at which it was sold. The demonstrated fact shown by the evidence and findings is that the net result of the neglect to deliver the telegram promptly is that the plaintiff received on May 28 fifty-six and seven-eighths cents for com which was worth three days later only fifty-six and one-eighth cents. Since it is apparent that he sustained no damages by the negligence of the defendant, the trial court rightly gave judgment against him. The judgment is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: This was an action by the appellee, The First Methodist Episcopal Church of Strong City, against the appellant, Jacob North, to recover damages for the breach of a written contract in which North agreed to buy an old church building and three lots for the price of $1000. The appellee had arranged to erect a new church building, and it was provided that possession of the old building should be reserved until the new one was completed. Shortly after the making of the contract the appellee began preparations to vacate the old church building and to erect a new one, and also procured an abstract of title to-the lots and executed instruments transferring and conveying the property which it had contracted to sell, but when these were, tendered to appellant he refused to accept them or to carry out the contract which he had made. When informed by appellee that it would not release him from the obligations of the contract, and that it was depending on the money derived from this source to go on with the new building, he replied that he did not care what they did with the property, and that he would not take it. The appellee then endeavored to resell the property, and finally obtained an offer of $250 for the building and $70 for the lots, and this offer was reported to appellant, who remarked that that was all the property was worth, but again refused to have anything to do with the property. Appellee then sold the property for $320 and sued appellant to recover $680, the difference between the contract price and the price which was received from the third party and which was alleged to be the value of the property at the time of the sale. Considerable testimony was offered as to the value of the property, some witnesses placing it as high as $1000 and others saying that the value of the building was $350 and the lots $40 each. The jury awarded damages in favor of appellee for $300. The contention that there was, in effect, an abandonment of the contract and an acquiescence in the refusal of appellant to carry out the contract is not sustained either by the averments in appellee’s petition or by the testimony. In its petition appellee set out the facts in the transaction, that a contract was made by the parties and broken by appellant, and consequently a loss ensued ; that to minimize the damages as much as possible a sale of the property was made to another, but not until notice of the proposed sale had been given to appellant ; and further, that the price received at the sale was the market value of the property at the time. While the appellee had other remedies, it had the right to maintain an action against appellant for the damages occasioned by the breach of the executory contract. The facts stated in the petition warranted a recovery of damages on this theory, and an election of the remedy on which it would rely was not essential. (Henry v. McKittrick, 42 Kan. 485, 22 Pac. 576; Huey v. Starr, 79 Kan. 781, 101 Pac. 1075.) Complaint is made of the instruction relating to the measure of damages. The court, in effect, advised the jury that if they found there was a breach of the contract in which appellee had not acquiesced, the appellee was entitled to recover the difference between the contract price and the price for which the property was resold, subject to the condition that when there was a refusal of the appellant to perform his contract -it became the duty of appellee to minimize the damages as much as possible; that it might then resell the property for the highest price obtainable, and if it sold for a less sum the amount of recovery would be proportionately diminished. If diligence was used and the highest possible price obtained the difference between that price and the contract price would be the measure of recovery, but if it did not make such a sale then its damages would be the difference between the contract price and the fair market value of the property. When a vendee refuses to perform an executory contract of sale the vendor is entitled to the fruits of his bargain and to any damages he may suffer by reason of the nonperformance of the contract. When the title to the property has not been transferred nor possession changed and no part of the purchase price paid the measure of damages ordinarily applied is the difference between the contract price and the salable or market value at the time of the breach. (Allen v. Mohn, 86 Mich. 328, 49 N. W. 52, 24 Am. St. Rep. 126; Prichard v. Midhall, 127 Iowa, 545, 103 N. W. 774; Kelley v. West, 36 Minn. 520, 32 N. W. 620; Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S. W. 120; Dickson v. Turner, 149 Ill. App. 394; Weatherbe v. Whitney, 30 Nova Scotia, 447; 2 Sutherland on Damages, 3d ed., § 570; 3 Joyce on Damages, § 1758.) It has also been held that in case of nonperformance the vendor is at liberty to resell the property, and if he does it publicly within a reasonable time and exercises due diligence in making the sale he may recover the difference between the contract price and the price at which it was sold in addition to the costs and expenses of the resale, and in such a case the price for which the property has been resold is prima facie evidence of its market value. (2 Warvelle on Vendors, 2d ed., § 936; 3 Joyce on Damages, § 1765; 2 Sutherland on Damages, 3d ed., § 570; Wood’s Mayne on Damages, 1st Am. ed., § 243.) Ordinarily the price received at a resale properly made will be deemed to be the market value of the property, but if at such a sale more than the market value is received the vendee is entitled to a credit for the excess on the recovery, and if as much or more than the contract price is received then only nominal damages are recoverable. In this case the price obtained at the resale is not material to the determination of the case, as it appears from the verdict that the property did not bring its salable value. Although diligence appears to have been used by the appellee in the resale, and although notice was given the appellant before the sale was effected, the jury manifestly decided that appellee did not secure the highest price obtainable for it. If appellee had done so the award would have been $680, the difference between the contract price and the reselling price, but as only $300 was awarded the jury evidently concluded that the property could have been sold for a greater price. The trial court told the jury that if appellee did not obtain the highest possible price its damages would be the difference between the contract price and the fair market value,'and hence the rule for which appellant is contending was the one which governed the jury in the determination of the case. There is nothing substantial in the claim that the case was tried on the wrong theory, nor do we find any prejudicial error in the other rulings of which complaint is made. The judgment is affirmed.	[ -16, 126, -16, -116, 26, 96, 98, 26, 89, -96, -92, 87, -23, -38, 21, 79, -90, 109, -48, 105, 70, -77, 6, 32, -48, -13, -13, -51, -80, -20, -11, -41, 76, 37, -54, -75, -26, -53, 73, -108, -114, -95, 41, 109, -33, 74, 52, 59, 70, 6, 21, -98, -9, 44, 60, -62, 105, 40, -51, 41, 81, -7, -116, -115, 77, 15, -112, 100, -100, 3, -22, 108, -112, 49, 0, -8, 113, -90, 6, 116, 69, -21, 9, 32, 98, 0, -27, -1, 120, -103, 14, 30, 45, -90, -112, 88, 106, 65, -66, -99, -11, 16, 5, 126, -26, 28, 25, 108, 5, -53, -42, -95, -49, 56, -102, 3, -57, 51, -80, 100, -49, -94, 92, -9, 59, -109, -97, -39 ]
The opinion of the court was delivered by Mason, J.: Mary Alice Spencer was injured by a fall caused by slipping upon ice on the sidewalk. She sued the city and recovered a judgment, from which it appeals. The defendant maintains that upon the record the city was not negligent, and the plaintiff was. There was evidence tending to show these facts: Mrs. Spencer left her home to go to that of a neighbor. She walked to a corner, turned at right angles and followed another side of the same block. She proceeded carefully, walking for about twenty-five feet on the terrace beside the walk. This brought her to a tree, to avoid which she stepped to the sidewalk, her injury following almost immediately. For some months water had been suffered to collect and remain at the street corner. The sidewalk was below the level of the surface of the ground, but. not below the established grade. There was a slight depression in the ice, where the plaintiff fell. The jury found that the city had not done all that could reasonably and prudently be done to drain the water from the vicinity of the sidewalk. We think the evidence justified a finding that the proximate cause of the plaintiff’s injury was the negligence of the city in failing to provide such drainage as would prevent the water standing in the street so as to overflow the sidewalk. It is argued that the plaintiff is precluded from recovery by her own negligence, inasmuch as the condition of the sidewalk was apparent, and she could have avoided the place at which her injury occurred by crossing the street instead of turning the comer, or by going the other way and making use of an alley. The fact that the condition of the walk was apparent did not charge her with negligence in using it, provided she did so with care proportional to the situation, and this was a question for the jury. (Garnett v. Smith, 72 Kan. 664, 88 Pac. 615.) Testimony was given in behalf of the defendant to the effect that planks had been placed across the street at the comer, by means of which the plaintiff might have reached a brick sidewalk leading to the house to which she was going. The precise condition of the crossing, however, was not conclusively established. There was evidence that the street was covered with ice, and that a number of boys were skating there. It can not be said as a matter of law that ordinary prudence required the plaintiff to choose one route rather than the other. (Telephone Co. v. Vandervort, 71 Kan. 101, 79 Pac. 1068; Note, 17 L. R. A., n. s., 201; 28 Cyc. 1428.) Cases referred to in a note to the Kansas case just cited indicate that, the law in that respect has been interpreted .here more favorably to the pedestrian than in some jurisdictions.. (Note, 6 Ann. Cas. 32.) The judgment is affirmed.	[ -15, 122, -44, -82, 27, 96, -70, -38, 65, -111, -75, 123, -81, -121, 13, 97, -105, -1, -47, 43, -47, -93, 23, -117, -14, -45, 115, 77, -77, 124, 116, 69, 76, 49, -54, -43, 102, -53, 93, 82, -122, -105, 10, -51, -71, 2, 52, 107, 34, 70, 113, -113, -45, 42, 24, -57, -88, 41, 91, 61, -14, -16, -120, 5, -1, 22, -77, 102, -98, -93, -34, 8, -104, 53, 0, -24, 114, -90, -106, 116, 5, -101, -116, 98, 102, 33, 13, -17, -7, -104, 46, 94, -83, -90, -111, 56, 65, 33, -75, -103, 101, 64, 38, 120, -2, -44, 93, 108, 73, -125, -76, -79, -49, -68, -76, -91, -49, -125, 50, 117, -114, -96, 92, -27, 112, -101, -113, -98 ]
The opinion of the court was delivered by Mason, J.: Upon full consideration of the petition for a rehearing filed by the appellant the court adheres, to the decision already made. Attention is called, however, to two incorrect statements made in the original opinion. It was there said that there was evidence' that the lawyer who drew Mrs. Fairbank’s will had not previously been acquainted with her. This Should have been written, “had not previously been well acquainted with her.” His testimony was that he had known her “casually for some several years before her death, not more than a passing acquaintance until the matter of this will came up.” The correction is made in order that the statement may be accurate, but the-matter is not regarded as of any considerable importance; the trial court did not find that the lawyer was guilty of any. misconduct, nor is such finding to be implied from the setting aside of the will. In the original opinion it was also stated that there was evidence that Rudolph Fairbank had lived with his mother for the last few years of her life. There was testimony that during the period referred to he was at her home much of the time, that he “did the work,” “did the business of the family,” “carried the purse and handled the business”; that he was there a large part of the time; that he kept the lawn mowed and did the work outside. But the fair inference from the whole record seems to be that he did not actually make his home with her. .The trial court found that he lived with her, and this finding is complained of. It is evident from what has already been said that the matter was not vital. The petition for a rehearing is denied.	[ -80, -20, -51, -17, 42, 96, -86, -104, 112, -127, 35, 115, -21, -37, 68, 105, 57, 79, 81, 107, -41, -73, 23, 1, -46, -13, 122, -43, -80, -34, -9, 31, 76, 32, 10, -35, 102, -54, -59, 82, -114, 5, -120, -27, -39, 112, 48, 61, 84, 76, 117, -34, -93, 40, 29, -58, 40, 44, -17, 57, 80, -80, -114, 15, 79, 3, -78, 54, -100, -89, 88, 44, -104, 53, 0, -8, 115, -74, -106, 84, 39, -71, 9, 102, 98, 49, -27, -17, -72, -104, 87, -98, 45, -89, -111, 88, -63, 101, -73, -65, 113, 112, 46, 124, -18, 21, 29, -28, 9, -113, -42, -79, 25, 124, -100, 10, -26, -127, 16, 113, -55, 40, 76, -62, 115, -101, -114, -78 ]
Per Curiam: This case involves the same questions as one which has just been decided, and is affirmed for the same reasons. (Henry v. Railway Co., ante, p. 1017.)	[ -80, 112, -36, 93, 74, -31, 34, -70, 73, -23, -25, -109, -83, -112, 20, -11, -89, 123, 115, -21, -42, -73, 114, -48, 82, -14, -5, -51, 59, 110, 103, 126, 76, 48, -86, -43, 102, -56, -51, 86, -58, 13, 56, 109, -45, 104, 52, 112, 84, 15, 49, -42, -63, -86, 26, -41, 9, 62, -53, -17, -47, 89, -116, 5, 125, 6, -77, 36, -99, -60, -56, 14, 88, 21, 17, -24, 114, -90, 7, -44, 43, -71, 0, 66, -30, -125, 69, -25, -104, -104, 36, -38, -113, -90, -78, 28, -21, 99, -97, 93, 100, 80, 6, -2, -24, 69, 31, 60, 7, -113, -74, -125, -105, 110, -102, 74, -22, 113, 50, 85, -128, 58, 94, -57, 23, 19, -114, -10 ]
Per Curiam: In 1904 the appellants owned a 180-acre tract of land in Wilson county and leased the same to the Fredonia Gas Company to be developed for oil and gas. One-eighth of the oil produced was to go to the appellants as royalty and $100 per year was to be paid for each gas well while used, with gas for domestic purposes of the landowner. Shortly after the making of the lease in question the appellee sunk a well on the premises, in which a large volume of gas was found. Gas was first marketed from the well in 1910-and thereafter the $100 per year for the well was paid. This action was brought for failure to develop the land, a trial was had and evidence was produced. Under these conditions it was impossible for the appellants, there being no further development of the land, to prove the actual amount of damages they had suffered. The nature of the case is such that it is impossible to tell what a well will develop until it is sunk, and yet experts in oil territory are able to furnish reasonably accurate estimates of what a certain territory will produce, estimating from producing wells in the locality. This the appellants did in this case. The appellee demurred to their evidence and the court sustained the demurrer. There was evidence tending to show that the one well was not sufficient development to protect the land from the gas being drawn from it by wells on adjacent lands. There was also evidence that an officer of the appellee had promised some months after the making of the lease to put down more wells. 'Wffiile this is not a part of the contract, it is of value as the evidence of one engaged in the business as to whether the land could be developed for gas profitably. And besides the evidence of other witnesses introduced, all the circumstances tend to show that not only the appellants but the appellee and others acquainted with the situation regard the right of appellee on the land as valuable and the failure to develop a damage to appellants. In the case of Wheeland v. Gas Co., 82 Kan. 862, 108 Pac. 187, which was between the same parties, plaintiffs and defendant, as this action, and the controversy was over the same lease of land, the object of the plaintiffs therein was to set aside the lease for the alleged reason that the defendant had failed to properly develop the tract leased and to protect it from being drained by wells on adjacent tracts. In opposition thereto, the defendant urged that the lease was valuable and that if the defendant had failed to develop or protect the leased tract, the remedy of the plaintiff was in damages and not by forfeiture of the lease. On that theory it secured a judgment partially in its favor. In the case of Howerton v. Gas Co., 82 Kan. 367, 108 Pac. 813, it was said: “Adhering to the decision on a former hearing (Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 47) that the contract contemplated that other wells should be drilled with reasonable diligence to utilize this lease, it is further held, that the burden of proof is upon the plaintiff to show that a remedy in damages is not an adequate remedy for the failure of the lessee to proceed to drill other wells to protect the land from drainage and to obtain gas therefrom.” (Syl. ¶ 1.) The plaintiff in this action followed the procedure indicated by these decisions and offered the only evidence possible to establish a claim for damages, to wit: the opinions of experts. To say that the evidence in this case did not furnish a reasonable basis for estimating damages is to override the reasoning of all these cases. All the business of leasing lands for development is based upon the opinions of men engaged in the business as to the value of the tracts leased for that purpose and it is competent evidence; although it is impossible thereby in a particular case to show the exact amount of damage which has been suffered, it is sufficient to enable a jury to estimate the damages and to find accordingly. The judgment is reversed and the case is remanded with instructions to overrule the demurrer and proceed with the trial.	[ 112, 110, -47, 12, -102, 96, 104, -102, 73, -93, 117, 87, -19, -38, 12, 57, -89, 121, 116, 106, -57, -77, 19, 67, -112, -77, -39, -35, -79, 77, -12, 85, 76, 32, -54, -43, -58, 0, 69, 92, -114, -116, -119, 110, -39, -128, 48, 43, 82, 79, 17, -121, -13, 44, 21, 71, 41, 46, -1, 45, 81, -16, -70, -107, 45, 4, 32, 70, -104, -25, -56, 10, -112, -72, 9, -24, 59, 38, -60, 116, 15, -71, -116, -94, 103, 35, 52, -17, -24, 24, 7, -34, -115, -89, -64, 24, -29, 107, -73, 31, 84, 70, 71, 126, -18, -107, 95, 125, 23, -113, -42, -95, 15, -32, -102, 17, -17, -93, -76, 113, -51, -94, 92, 71, 114, 27, -113, -40 ]
The opinion of the court was delivered by Benson, J.: This action is to recover the amount of a promissory note made by the lessor and lessees of farming lands; for an accounting of proceeds of the crops raised upon the land and delivered to the defendants for sale; and for the application of one-half the proceeds upon the plaintiffs’ claim under an agreement between all the parties. The cause was referred and judgment was entered upon the referee’s report for the plaintiff. The facts found by the referee, in substance, are these: F. M. Clark leased land near Kansas City to Otto Kurtze and Elizabeth Kurtze for one-half the crop, and agreed to advance $5 weekly for supplies and seed, to enable the tenant to plant and harvest the crop. To provide for these advances Clark made an arrangement with the defendants that they should make them, which they did from time to time, amounting on August 15, 1910, to $700. On that day the Kurtzes gave a chattel mortgage to the defendants on their one-half of the crop to secure this $700, and $175, an amount estimated for future advancements. ■ On September 19 Clark and Kurtze and wife obtained a loan from the plaintiffs of $1000, for which they gave their promissory note, secured by a mortgage on crops on the land and an assignment of Clark’s interest in the crops. On the same day Clark, the Kurtzes and Weston & Company entered into a contract in which it was recited that Kurtze and wife had theretofore agreed to deliver to Weston & Company their one-half of the crop; that Kurtze and wife and Clark had borrowed $1000 of the plaintiffs, secured by a mortgage on the Kurtzes’ half interest, and an assignment by Clark of her half interest in the crop. The contract also provided that the crop-should be delivered by Kurtze to Weston & Company for sale by them at current prices in the usual course of business, one-half of the net proceeds to be applied to pay the indebtedness due to Weston & Company, on their mortgage, the other one-half to be paid to the plaintiffs on the $1000 note. It was further agreed that statements of sales should be made to William Needles, who was to receive and divide the surplus between the lessor and lessees. The principal contention is over the question whether certain payments made by the defendants to the Kurtzes after the date of the contract of September 19 should be deducted from the amount of sales in arriving at the net proceeds. Part of these pay ments were for threshing and amounted to less than the $175 estimated and included in the mortgage. Other items were for payments of money to Kurtze for labor and hauling in delivering the crops to the defendants in the city. It is insisted that these items should be deducted from the $1179.70 found by the referee to be the net proceeds. In other words, it is contended that these items should have been deducted from the amount of sales, in addition to the expenses of making sales, for drayage, commissions and the like, which were allowed by the referee in arriving at the amount of $1179.70. The contract of September 19 appears to have been the final agreement of the parties, and it nowhere appears that Kurtze was to be paid for hauling in the crops, or that the plaintiffs were to be subjected to any diminution from their one-half for any such expenses. The term “net proceeds” must be applied according to the circumstances presented, and it seems obvious that only the ordinary expenses of converting the crops into money after they had been delivered to the defendants should be deducted from the amount of sales. The truth appears to be that it was supposed that the crops would yield an amount sufficient to pay both creditors. In this they were disappointed, and neither recovered payment in full. One of the defendants testified: “At the time this contract was executed I believed this property was sufficient to pay all indebtedness to the Westons and to the Staleys on the representation of the acreage. I relied on the representation on the acreage and believed what Clark and Kurtze told me. I supposed we would make enough out of this crop to get all that was due us and pay the Staleys and then have something left and we ratified the contract knowing what was in it. I was out at the farm I expect three times in the early part of August.” After each sale of products the defendants rendered an account in the ordinary form in transactions of this nature, giving dates, names of purchasers, quantities, amounts received, and deductions therefrom for commissions, loading charges, freight charges, and dray-age, as already stated, which expenses were allowed. These statements appear to have been made after the payments for hauling had been made. Thus it appears that the defendants, when the transactions were current, placed the same construction upon the term “net proceeds” that the referee and the district court gave it. The finding that the money paid to Kurtze for hauling in the crops should not be deducted from the amount of sales in arriving at the net proceeds must be sustained. If it should not be so held as a matter of law from the terms of the contract, a question of fact was presented upon which the finding, of the referee, approved by the district court, can not be disturbed. Assignments of error upon questions of practice remain to be considered. It is insisted that a demurrer to the petition should have been sustained because the plaintiff’s remedy was upon the note against the makers. It is not perceived how the existence of that remedy prevented them from resorting directly to the fund specially set apart for payment of the note. It is said, however, that the plaintiffs had no right to recover upon , the contract of September 19, because they were not parties to it. That a person may recover upon an agreement or promise made to another for his- benefit upon a sufficient consideration has been settled by many decisions. (Griffith v. Stacker, 91 Kan. 47, 51, 136 Pac. 937.) Complaint is made of the order of reference, but it does not appear that the defendants objected when the order was made, nor before or during the trial, although appearing and participating therein. An objection made when the'report was filed was too late. The case involved an accounting of sales of crops of different kinds at various times, supposed at the time to be worth $5000. The court believed a reference to be proper, and by their acquiescence it must be presumed that the parties were of the same opinion. On cross-examination of a witness for the plaintiffs the question was asked, What amount was due on the plaintiffs’ note? Payment had not-been pleaded, nor any issue raised as to the amount due. Although the evidence might have been admitted without apparent prejudice, there was'no error in excluding it. One of the defendants was asked why he had made no payments to Staley. The defendants had stated their reason in their pleading, and the facts of the transaction were related in the evidence. It is not perceived how any possible prejudice could result from excluding an answer to this very general question, which would involve substantially a rehearsal of the defense. The defendants also allege error in excluding their offer to show the items of the advances making up the amount of $700 included in their mortgage. There was no error in this ruling because the amount had been agreed to and settled, and there is no claim that it is not correct. No error is found in the proceedings and the judgment is affirmed.	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The opinion of the court was delivered by West, J.: The plaintiff purchased of the defendant certain real estate which was leased to one Bennett until February of the following year. By the terms of this lease Bennett was to pay, in addition to a certain portion of the crop, $100 on the first of the following December, without interest until due. For this sum he had given his note to the defendant. The lease was assigned to the defendant and the note was delivered to him. In the settlement between the plaintiff and the tenant Bennett the latter was charged with the full amount of the note, which was by the plaintiff marked “Paid in full.” Afterwards Bennett was informed that the note had not been turned over to the plaintiff as his property, but had been delivered to him for the purpose of presenting it to Bennett, and the latter sued the plaintiff for the amount thereof and recovered, the defendant herein being a witness for Bennett in that action. The plaintiff brought this action against the defendant, alleging that the note was turned over to the plaintiff as his property, and that the defendant conspired with Bennett and by false testimony caused the plaintiff the loss of such note, to his damage of $101. The jury found for the defendant and the plaintiff appeals. The controversy hinges on the question as to what disposition was actually made of the note in the trade in which the lease was assigned to the plaintiff. The latter insists that the note went to him as a part of the consideration, and that the assignment of the lease itself operated to make him the owner of the note, while the defendant contends that in the transaction between him and the plaintiff it was expressly agreed that the note was not to be turned over to the plaintiff, but that it was to be presented to Bennett, who had suffered a partial crop failure on the land; that it was agreed that the plaintiff might present the note to Bennett, as the plaintiff desired to retain him as a tenant and gain his friendship. There was testimony sufficient to justify the jury in finding either way on this controverted point. The verdict was in favor of the defendant and was approved by the trial court, and is thus beyond our control. The plaintiff argues that the court should have charged the jury that the lease carried with it the ownership of the note, and that they should have been instructed that the written contract could not be varied by parol evidence. There was-a written contract for the sale of the land, but the only provision touching the lease was as follows: “It is further agreed that said first party is to pay to second party $1200, and turn over lease of said farm for the year 1911.” There is nothing in the lease or in the contract to indicate that a note had been given for the $100, and it is difficult to see how the claimed arrangement touching such note could be deemed to contradict the terms of the written contract between the parties, which simply called for turning over the lease. This provision was literally complied with by turning over the lease. Whether such provision was intended to include the note could only be determined from a knowledge of facts properly shown by parol. Such evidence would not contradict the contract, but clear up a facial ambiguity, and this is permissible. (17 Cyc. 638; Kline v. Bank of Tescott, 50 Kan. 91, 31 Pac. 688; Grocer Co. v. Lackman, 75 Kan. 34, 88 Pac. 527; Wagon Co. v. Wilson, 79 Kan. 633, 101 Pac. 4; Van Arsdale v. Foster, 79 Kan. 669, 100 Pac. 480; Heskett v. Elevator Co., 81 Kan. 356, 105 Pac. 432.) The plaintiff alleged and prayed for damages in the sum of $101, and hence the action is appealable. The judgment is affirmed.	[ 50, 120, -108, 29, -102, 96, 42, -104, 105, -93, 38, 91, -23, -45, 20, 33, -25, 111, 84, 104, 71, -77, 6, 67, -46, -13, -13, 69, -71, -19, -27, 87, 76, 52, -62, -43, -26, -62, -63, 86, 78, 5, -117, -32, -39, 66, 48, 27, 16, 77, 81, -113, -13, 45, 48, 71, 111, 41, 105, 49, -16, -8, -117, 15, 75, 6, -110, 37, -36, 79, -38, 44, -112, 49, 1, -24, 115, -74, -122, 116, 109, -101, 8, 34, 102, 16, 77, 107, -6, -115, 47, -1, 13, -90, -48, 88, 11, 0, -66, -99, 116, 84, -89, 118, -4, 29, 29, 108, 3, -49, -106, -93, 15, 126, -98, 75, -49, 3, 17, 97, -51, -96, 92, 101, 122, -101, -113, -43 ]
The opinion of the court was delivered by Porter, J.: The original opinion in this case (ante, p. 73, 139 Pac. 1022) contains a slight inaccuracy in a statement of the facts, and this is seized upon by counsel for appellant in a petition for rehearing in-which it is insisted that the court failed to read the abstract. In the original opinion it was stated that: “Mrs. Levisen elected to take under the will, and for more than ten years the Hansens lived with her on the place and took care of her. This was a substantial compliance with the condition in view of the fact that there was evidence from which the court might have found, if special findings had been made, that after the death of Andrew Hansen, Stina Hansen was willing to continue to provide, care for and support Mrs. Levisen during the remainder of Mrs. Levisen’s life, and was only prevented from complying with the agreement by the refusal of Mrs. Levisen to live with her or to allow her to remain on the farm. Mrs. Levisen lived less than three months after the death of Andrew Hansen.” (p. 76.) The only inaccuracy in the statement consists of the words “on the place.” The Hansens, it appears, lived there only seven years. Three years of the ten they leased the farm and lived somewhere else in the neighborhood,-and Mrs. Levisen lived with them. However, it was and is absolutely of no consequence whether the Hansens lived “on the place” or not. The provision of the will which we were considering reads as follows: “To Andrew Hansen, my son-in-law, who for some time past has been taking care of myself and wife, I give, will and bequeath after the death of myself and Anna Marai Levisen, my wife, all our property herein described, after all lawful debts and bequests are paid, provided he shall take as he has heretofore taken, good, kind and loving care of ús, provided us with all necessaries of every kind and nature during the remainder of our lives.” They were not required to live on the farm during any portion of the time, and could have complied with the condition and resided away from it all of the time. There is a further contention in the petition for rehearing that the statement in the opinion that “there, was evidence from which the court might have found, if special findings had been made, that the wife of Andrew Hansen was willing to continue to provide and care for Mrs. Levisen,” is incorrect, and that special findings of fact were made. The appellant is wrong in this contention. No findings were made by the trial court of any of the facts upon which the judgment turned. On the contrary, the judgment was a generad one in favor of Stina Hansen. It is true that the court made certain findings and conclusions of law, but not a single fact was found or attempted to be stated by the court as a basis upon which the judgment was predicated. The only facts stated were that due and legal service of summons had been made upon certain defendants who were not concerned in this appeal; that a guardian ad litem had been appointed for a minor; that another person had been made a party upon his own application. The only finding with respect to the appellant is that she ought not to have any relief under her petition, and this is a conclusion of law-which we held and still hold to be a sound one. The opinion was correct in stating that if special findings had been made of the facts there was sufficient evidence from which the court might have found that Stina Hansen was willing to continue to provide for Mrs. Levisen and was only prevented from doing so by the refusal of Mrs. Levisen to live with her or to allow her to remain on the farm. In the petition for a rehearing it is insisted that the court misapplied the law and misapprehended or overlooked certain important facts which the appellant thinks should govern the case, and the questions presented by the original brief are reargued at length. In construing the will counsel for appellant would look to the first clause alone, and because the language in that .clause, taken by itself, bequeaths all the property to the testator’s wife, they insist that the subsequent clause (quoted supra) is repugnant and can have no effect. The court followed the rule of construction which has been uniformly adopted in this state so as to give effect to every part of the will, provided an effect can be given to it which appears to be consistent with the general purpose and intent of the testator as gathered from the entire instrument. (Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Williams v. McKinney, 34 Kan. 514, 9 Pac. 265; Hurst v. Weaver, 75 Kan. 758, 762, 90 Pac. 297; Holt v. Wilson, 82 Kan. 268, 108 Pac. 87; Blair v. Blair, 82 Kan. 464, 108 Pac. 827; Rooney v. Hurlbut, 79 Kan. 231, 98 Pac. 765, and many other cases which might be cited.) The rule applicable to just such a case was well stated in Williams v. McKinney, supra, where it was said: “The words used in the first part of this provision, taken by themselves, and without qualification or limitation, would certainly give to the widow an estate in fee simple; but we are not to determine.'the legal effect of the will from any detached portion thereof, nor from any single phrase which it may contain. All parts of it should be considered and construed together, and if possible it should be construed in such a way as to arrive at the intention of the testator. The leading consideration in determining its effect is, what disposition did the testator intend to make of his property; and this intention is to be learned from an examination of the entire context of the instrument. It has been said that ‘the construction of a will depends upon the intention of the testator, to be ascertained from a full view of everything contained within the four corners of the instrument.’ ” (p. 518.) In Blair v. Blair, supra, it was said: “In construing a will the meaning of the words used will be expanded or restricted so as best to express the purpose and intent of the testator.” (Syl. ¶ 1.) In the original opinion it was said: “Applying the same rules of construction to the present case, we have no difficulty in construing the will as did the trial court; and we hold that the testator’s intention was to devise to his wife a life estate with remainder to Andrew Hansen, provided Andrew Hansen complied with certain conditions named in the will. Otherwise we must give no force or effect whatever to the clause in which the testator declares the intention that, provided his son-in-law shall take kind and loving care of the testator and his wife, and furnish them with necessaries of every kind and nature during the remainder of their , lives, then all the property described in the will should become his property. The circumstances under which the will was executed convince us that this was his intention, and that his wife fully concurred therein and was satisfied with the provision.” {Ante, p. 76.) Counsel now complain that the court refused to decide whether the condition upon which Andrew Hansen was to take the property was a condition precedent or subsequent; they insist that by the express language of the will it was a condition precedent, and that this court erred in holding that a substantial compliance with such a condition is sufficient. They invoke the doctrine that strict compliance is always required where there are conditions precedent. We are asked if we are “willing to adopt the rule and say in the face of the decisions of all the states that where there are conditions precedent to be performed, title will'pass without full performance of such precedent condition.” And counsel say: “Why not pass squarely upon the proposition? If the court desires to go upon record as saying that a will which devises property for the care and support of the devisor and his wife does not create a condition precedent and the devisee may refuse to carry out the terms of the will and still hold title to the property, it has the power to do so.” It is hardly necessary for us to go upon record for the purpose of determining what would be the result where a devisee refuses to carry out the terms of the will and to perform the condition upon which he was to take the title of the property, since we have no such case as that before us. As said in the opinion, there was a substantial compliance with the condition. There are a number of elementary propositions which we did not think it necessary to state in the former opinion but which are controlling. It is well settled that there are no technical words to distinguish between conditions precedent and conditions subsequent; whether they are one or the other depends upon the intent of the person creating the condition. There are no “precise technical words necessary to the creation of a condition precedent or subsequent, either in a will or in a deed; but the same words may be construed to operate either as the one or the other, according to the evident sense in which they are used, as indicated by the instrument. Upon this principle all the cases profess to have been decided.” (Creswell v. Lawson, [Md.] 7 Gill & J. 227, 240.) “It is equally well settled that if the thing to be done does not necessarily precede the vesting of the estate in the grantee, but may accompany or follow it, and may as well be done after as before the vesting of the estate, the condition is subsequent.” (In re Stickney’s Will, 85 Md. 79, 102, 36 Atl. 654, 60 Am. St. Rep. 308, 312; Martin v. Ballou, 13 Barb. 119, 133; 1 Jones, The Law of Real Property and Conveyancing, § 619; Finlay et al. v. King’s Lessee, 3 Pet. 346.) A case directly in point is Bryant’s Adm’r v. Dungan, 92 Ky. 627, 18 S. W. 636, 36 Am. St. Rep. 618. The testator devised one hundred acres of land to his wife. A subsequent will contained this provision: “ T will and devise the above one hundred acres of land willed to my wife, Sarah, to go to my grandson, E. L. Dungan, at the death of his grandma, Sarah Bryant, upon the condition that he stays with her and supports her and cares for her until her death, then he is to have her part of said farm and homestead; otherwise to be void if he shall fail to perform my will.”’ (p. 628.) In the opinion the court said : “The language quoted clearly conyeys to the appellee an immediate title to the one hundred acres of land, which, taken in connection with the life estate devised to his grandmother, is a vested remainder. And the subsequent expression: ‘To go to my grandson, E. L. Dungan, at the death of his grandmother, Sarah Bryant, then he is to have her part of said farm and homestead,’ evidently relate to the time that the appellee was to enjoy the estate. . . . From what has been said, it is evident the appellee took a vested remainder; and the conditions imposed were conditions subsequent; and it follows that the noncompliance with those conditions did not divest him of his estate, unless the noncompliance was the result of his fault, which was not the case here, because he was ready and willing to comply, and proffered to comply, but his grandmother refused.” (p. 629.) Numerous decisions hold that the failure to perform a condition as to the support of some designated person will not be considered a breach where performance is prevented by the voluntary act of the person for whose benefit the condition was imposed, on the ground that in such a case such person has power to waive performance. (See cases cited in Note, 27 L. R. A., n. s., 688, under title, “Conditions Subsequent.”) We think it is doubtful if any of the authorities cited by counsel really sustain their contention. Most of them are easily distinguishable by the language of the will or by the facts and circumstances. Some of the cases relied upon hold squarely against the appellant. Counsel say that “in order to determine (whether the condition imposed upon Andrew Hansen was a condition precedent) we must look to the decisions of this and other courts.” They then quote from Burdis v. Burdis, 96 Va. 81, 30 S. E. 462, 70 Am. St. Rep. 825, as follows: “If the language of the particular clause, or of the whole will, shows that the act on which the estate depends must be performed before the estate can vest, the condition is precedent, and unless it be performed, the devisee can take nothing.” (p. 84.) The language quoted is a mere statement of a general rule which no one will dispute. The remainder of the paragraph from which it is taken states the converse rule as follows: “If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it, and this can be collected from the whole will, the condition is subsequent. (Finlay v. King, 3 Pet. 346; Martin v. Ballou, 13 Barb. 119; and 4 Kent’s Com. 124.)” (p. 84.) Burdis v. Burdis, supra, is a well-considered case often cited by other courts and by annotators, but everything decided in it is against the contention of appellant in the case at bar. The provision in the will involved in that case was held by the court to be a condition subsequent. The testator devised to his wife certain real estate during her natural life with the understanding that his son Albert was to support and take care of her and at her death the land should return to his son as compensation therefor. The court distinguishes between conditions precedent and subsequent, and adopts the identical rules for distinguishing between such conditions that we have attempted to follow in the present case. The reasons which the court gives for holding that particular condition to be a subsequent one apply so aptly to the provisions under con sideration that we quote more liberally from the opinion than counsel for the appellant have seen fit to do. In the opinion the court said: “But if the language referred to be in legal effect a condition of the devise to the son, there is nothing in the will that makes the support and care of the wife of the testator by their son Albert necessarily precede the vesting in him of the estate in remainder, but much to indicate the contrary. The obligation relied upon as a condition precedent was not a single act, to be done or omitted at once, but a continuing condition, which might run through a long series of years, and require the performance of many acts. “The support and care of the wife was a continuing duty as long as she might live. If she had survived the testator she would have only been forty-five years old at the time of his death, and would have had, according to all human calculation, many years still of expectation of life. There is nothing in the will to indicate that the testator intended the devise to the son to remain in ‘a state of contingency’ during the many years that he might have the support and care of his mother, and it would be unreasonable to believe, without an express direction or plain implication in the will to that effect, that he so intended.” (p. 84.) The opinion cites Birmingham v. Lesam, 77 Maine, 494, where the testator devised to his wife all his real estate for her life, the remainder to John Mehan at her death, provided he maintained and provided for her decently from the proceeds of the farm or otherwise. The supreme court of Maine held that John took the estate upon a condition subsequent, but having failed to perform the condition he lost it. A case upon which counsel place much reliance is Brennan v. Brennan, 185 Mass. 560, 71 N. E. 80, 102 Am. St. Rep. 363. There the testatrix devised all her. real property to one of her nephews, provided he took care of her and looked after her while she lived. The nephew had no knowledge of the provisions of the will until after the death of the testatrix. It was said in the opinion: “The condition would seem to be a condition precedent rather than subsequent. It related to something to be done during the lifetime of the testatrix . . . and there is nothing to show that it was performed by the tenant (nephew).” (p. 561.) The condition was required to be performed before the estate could vest at all. The beneficiary was obliged to take care of the testatrix during her life. The whole estate remained necessarily in the testatrix until her death. It could only vest at her death. The condition had not been performed and could not be commenced to be performed, and, as suggested by the editor of a note to the case (102 Am. St. Rep. 368), “In such a case the holding of the condition to be subsequent would be to dispense with it altogether. It must therefore be considered to be a condition precedent, as must all other conditions which can by no possibility be performed until after the time arrives at which it is claimed the estate vests.” If in the case at bar the testator and his wife had both died before any services had been performed by Andrew Hansen, the case of Brennan v. Brennan would have some application. The services to be performed by Andrew Hansen did not necessarily precede the vesting of any estate or right under the will; on the contrary, it is more reasonable to say that they were intended to accompany or follow it. The will expressly declares that he had already for some time past' taken care of the testator and his wife, and then gives him all the property, provided he continues to do so until their death. No title could vest until the death of the testator. When that occurred the condition as to taking care of him had been fully performed, and the condition that the wife should be cared for had commenced, so that there is no reason whatever, as there was in the Brennan case, for saying that the act necessarily preceded the vesting. It was not in terms required to be performed before the vesting; it could, in the nature of things, as well follow along with as to precede the vesting. Moreover, at the death of the testator the title vested somewhere; it did not, like Mahomet’s coffin, hang suspended between the earth and heaven. Since, therefore, the question at bottom is one of. intention on the part of the testator, and since any doubt which might exist must be solved by considering the conditions and circumstances in which the will was executed, and especially where these appear on the face of the writing, as in the present case, it is, in our opinion, more consistent with the intention of the testator, as well as with the overwhelming weight of authority on this question, to hold that the condition here was subsequent. The case of Den ex dem., Blean, v. Messenger, 33 N. J. Law, 499, is not, we think, very much in point. In the second clause of that will the property was given to the devisee provided he remained with the testator and his wife “during our lives, and the life of the survivor of us.” In the third clause the testator made a gift over to his wife of this property in case Henry Clew, the devisee, should not survive his wife. He did not survive her, and of course there was ground for holding the condition precedent and that no estate vested because the condition was not performed. In Stark and others v. Conde, 100 Wis. 633, 76 N. W. 600, the condition had to be performed before the legatee became thirty years of age, and he was past that age at the testator’s death. It is another case where the thing to be done was one single thing. In Tilley v. King, 109 N. Car. 461, 13 S. E. 936, the devise was made to his grandson to compensate him for his services if “he stays with us until after our death and takes care of us.” He voluntarily left the wife of the testator about seven or eight years before her death. The following cases cited involve contracts and furnish no assistance in construing the will in the present case. In some of them certain language was held to constitute a condition precedent: Davis v. Gray, 83 U. S. (16 Wall.) 203; Mesick v. Sunderland, 6 Cal. 297; Brennan v. Mesick, 10 Cal. 95; Tennessee & Cossa R. R. Co. v. East Ala. R’y Co., 73 Ala. 426. What we here decide is not believed to be in any sense in conflict with Mollenkamp v. Farr, 70 Kan. 786, 79 Pac. 646. The will there was construed to mean that “the father had no thought of discriminating against any of his children; that he wished his sons to acquire title to the farm, to the exclusion of their sisters, only upon making them due compensation, to be determined by the method indicated,” and that “this constituted the requirement a condition precedent.” (p. 790.) In our view of the case, it was and is a matter of slight importance whether the provision of the will under which the Hansens claim be regarded as a precedent or subsequent condition. Counsel say in their petition for rehearing: “We know of no court that has ever held that title will pass unless the conditions have been fully complied with, and the courts uniformly hold that it makes no difference what prevents the performance of the condition.” The rule is stated by counsel too broadly. If their contentions are sound Andrew Hansen might have faithfully complied with the condition by taking care of the widow for twenty years after the death of the testator, and then because of her refusal to allow him to take care of her for the remaining three months of her life his right to the devise would have been, defeated. In 70 Am. St. Rep. 829-837, there is a comprehensive note upon “conditions precedent and subsequent” and the impossibility of their performance. The editor .of the note says with respect to conditions precedent, that if a party who is entitled to the benefit of a condition, upon the performance of which his re sponsibility is to arise, dispenses with, or by any act of his own prevents the performance, the opposite party is excused from proving a strict compliance with the condition. He further says it always, excuses the performance of a condition precedent if the contract was hindered by the other party. In Lynch v. Melton, 150 N. Car. 595, 64 S. E. 497, the will devised a remainder to the niece of testatrix “provided she lives with her uncle, the husband of testatrix, until she becomes free by age or marriage, otherwise to go as the law directs.” The niece was compelled to leave the uncle’s home by his insanity and a breaking up of the home, but it was held that the condition was not defeated by this inability on the ground that the performance was rendered impossible by the happening of an event subsequently which the testatrix never contemplated. Lynch v. Melton, supra, is reported in 27 L. R. A., n. s., 684, with a Note, 684-689, upon the effect of the breach of conditions precedent and subsequent. The editor cites a number of cases in ■support of the doctrine that, even in the case of a condition precedent, where an exact compliance has become impossible, “a substantial compliance with the testator’s intention is equivalent to a full performance” (p. 687), citing Seeley v. Hincks et al., Executors, 65 Conn. 1, 31 Atl. 533, and Burns v. Clark, 37 Barb. 496. The disinclination of modern courts, especially those in America, to apply the strict rules of the ■common law in cases of this kind is referred to by the •editor, at page 686, in the following language: “It may be doubted as to whether the American •courts are not inclined to apply the doctrine of the civil law . . . rather than that of the common law, even in the case of devises of real property; but they usually avoid the necessity of expressly repudiating the old rule by construing the condition as subsequent, rather ■than precedent. A similar result is sometimes reached by holding a condition precedent to have been sufficiently performed where exact compliance is impossible.” (Italics ours.) The editor also cites Page &c. v. Frazer’s Executors, &c., 14 Bush. 205, where a devise to testator’s sister was conditioned upon her becoming reconciled to other members of the family within a year after the death of her husband, and it was held that an offer to perform, and the rejection or defeat of the offer by the persons with whom the reconciliation was desired, would be equivalent to a performance of the condition; also Irvine v. Irvine, 12 Ky. Law Rep. 827, 15 S. W. 511. There the devise was upon the condition of maintaining the widow of the testator on his farm, and it was held that substantial performance by maintaining the widow elsewhere would be sufficient, if exact performance had become impractical or fairly unreasonable. Also Harris v. Wright, 118 N. Car. 422, 24 S. E. 751, where the devise was on condition that the devisee remain on a plantation with the testator’s widow until her death, and it was held that, although a full performance of the condition had been rendered impossible by reason of the devisee’s being wrongfully ejected from the plantation, he was nevertheless entitled to the property devised. It is true that the chief consideration for leaving ■the property to Andrew Hansen was probably to provide for the care and support of the testator and his wife, both bedridden, aged people, but we think some part of the consideration was the desire that his own daughter, Stina Hansen, the wife of Andrew Hansen, should have the benefit of whatever property was left after the performance of the condition. Counsel ask what right Andrew Hansen had to occupy this farm and take the benefits of it during all these years. The answer is found in a clause of the will following the provision under consideration, which reads: “All expenses incurred in the carrying out of this last provision to be paid out of the property herein named.” As intimated in the former opinion, it seems to us wholly unreasonable that the testator intended that the kind and loving care of himself and wife was to be performed wholly by Andrew Hansen. Giving due consideration to the circumstances and situation of the testator as disclosed by the language of the will itself, we are forced to the conclusion' that he fully understood that probably the greater part of the personal services would be performed, as doubtless they were, by his daughter, Stina Hansen; and that it was never in his contemplation that her interest in the property as the wife of Andrew Hansen was to be defeated by her husband’s inability to perform all the services personally because of his death subsequently a few weeks prior to the death of the testator’s wife. Counsel urge that on account of the “turn” the case has taken in this court they ought to have a rehearing, but every question decided was fully argued on the former hearing; and while the court below made a general finding, we assume that the judgment was based upon the law as declared herein. A rehearing is denied and the former judgment is adhered to.	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The opinion of the court was delivered by Benson, J.: This action is to determine whether the plaintiff’s salary as a professor in the University of Kansas shall be audited and paid after, the payment of his salary as fish and game warden for the same period. For thirty-five years Professor Dyche has been a member of the faculty of the University. During that time he has been professor of zoology, professor of comparative anatomy, curator of birds, mammals and fishes, and professor of systematic zoology and taxidermy, and now holds the position of professor of systematic zoology and taxidermy and curator of birds, mammals and fishes. The legislature of 1909 inadvertently failed to make an appropriation for the fish and game department and the management of the state hatchery. Governor Stubbs, conceiving the idea of associating the management of this hatchery with the University, took up the proposition with the board of regents, requesting them to take an interest in this hatchery and in the fish and game department as part of the university extension work. This was done, and the board passed a resolution on November 30, 1909, as follows: “On account of the lack of appropriations for the fish and game wardenship and of its great importance to the state, and further because of the desire and duty of the University to do everything in its power for the commonwealth whose name it bears, the regents of the University of Kansas hereby offer the services of Professor Lewis Lindsay Dyche as fish and game warden for so much of his time as may be necessary to place the fish hatchery and the entire work connected with the position on a thoroughly scientific and economic basis, believing that it may be made of. great economic importance to Kansas.” The governor then appointed Professor Dyche fish and game warden, and his appointment was confirmed. Down to the time he took this position he had been receiving $2500 a year. The board of regents in consideration of the connection of the game department with the university extension work raised his salary to $3000 per year. During this time he received no other pay. On July 1, 1913, the board of administration entered upon its duties, but no change was made in the status of plaintiff. He continued to discharge the duties of fish and game warden and also of his professorship until the 5th of November, 1913, during which time he drew no pay. On the 5th of November, 1913, the board of administration concluded that for the present fiscal biennium it would better serve the convenience of the board if Professor Dyche drew the salary of fish and game warden at the rate of two thousand dollars a year, and that his salary as professor should be reduced from three thousand dollars to one thousand dollars per year, and that he should discharge the duties of both. To that end the following resolution was adopted: “Passed by the Board of Administration, November 5, 1913. “Be it resolved by the board of administration that Professor L. L. Dyche, the State Fish and Game Warden, be employed as Professor of Systematic Zoology and Curator of Mammals, Birds and Fishes, in the University of Kansas; and that in consideration of his delivering such lectures as he may be called upon to deliver by the department of zoology, and furnishing such laboratory material as may be necessary for the use of said department, and keeping up and looking after the museum of said institution, that he be allowed a salary in addition to his salary as Fish and Game Warden, to be paid by the state, of $1000 for the fiscal year beginning July 1, 1913, and ending July 1, 1914.” The governor and auditor knew of this arrangement and knew that the plaintiff was to receive his com-' pensation out of two different appropriations. The governor approved and the plaintiff acquiesced in this arrangement and filed with the auditor of state two vouchers, the first one for salary for July, August, September and October, as professor at the University, at the rate of $1000 per year, and the other for salary as fish and game warden for July, August, September and October, at $166.66% a month, a total of $666.66. The defendant audited the voucher for salary as fish and game warden, but refused to audit the claim for salary as professor. The plaintiff complains of this refusal and prays for a writ of mandamus to compel the audit. The áuditor in his answer alleges that the duties of the fish and game warden a.re independent of, and incompatible with, the duties of a professor in the University, and that it was the legislative intention that Professor Dyche should devote all his time to the duties of the office. He also alleges a public policy and custom against the payment of two salaries to one person, and refers to various statutes in which particular officers are precluded from receiving other compensation than that named. Instances are cited where members of the legislature holding another office have drawn but one salary. The auditor also alleges that the plaintiff did not perform any service as professor during the time for which he claimed pay. It will be observed that the governor and the governing boards of the University acted in harmony in relation to the services of Professor Dyche in the office of fish and game warden, and in the University, treating his service as warden as a part of university extension work. The subject was referred to in the biennial message of the governor in January, 1911, and in a special message to the legislature in the same month. The failure of the legislature to make an appropriation for the salary of fish and game warden for the year 1909 was referred to and Professor Dyche’s services were highly commended. In, the special message the governor said: “Under an arrangement made with the State University, Mr. Lewis Lindsay Dyche, professor of zoology and curator of birds, mammals and fishes of that institution, was made fish and game warden, and has not received any salary from the fish and game department. Professor Dyche, after much consideration of this subject, consented to accept the appointment of fish and game warden, under the express condition that the department should be entirely removed from political control and placed upon a scientific business basis. . . . The fish and game department can be developed into an industry which will produce many millions of dollars’’ worth of food every year for the people of Kansas if it is removed entirely from politics and put on a scientific basis.” In the legislative session of that year the laws on the general subject of fish and game were revised (Laws-1911, ch. 198), fixing the salary of the warden at $2000, and providing that “The fish and game warden shall be under the supervision of the regents of the University of Kansas.” (§1.) This clause is significant of a purpose to give effect to the recommendations of the governor. At the same session the legislature appropriated so much as might be, found necessary out of the fish and game Warden’s fund to extend and improve the. state hatchery and also made appropriations for the warden’s salary. (Laws 1911, ch. 6.) Preliminary to this legislation in 1911, committees of the legislature considered plans for large extensions in the hatchery, presented by the warden. (First Biennial Report, Fish and Game Warden, p. 9.) Appropriations were made at the legislative session of 1913 for general maintenance of the University, including, among other things, salaries and extension for the fiscal years ending June 30,1914, and 1915. Appropriations of $25,000 for each of the years were also made “For state work (separate) including scientific surveys, salaries and maintenance of water, food arid drug laboratories for the State Board of Health, sanitary engineering for State Board of Health, industrial research, fish and game, entomology, weights, measures, weather reports ■ and other service work.” (Laws 1913, ch. 5, § 2.) These various acts and proceedings show legislative recognition of the extension of the University work, as contemplated by the action of the governor and University authorities to the subject of fish and game, and of the services of Professor Dyche, which being matters of official record as well as current history, were well known to the legislature. While the appropriation act of 1913, just referred to, does not give express direction for the payment of the plaintiff’s salary as professor, the general authority is given by the power conferred upon the board to approve vouchers, and upon the auditor to draw warrants for that purpose. The various acts referred to by counsel which in express terms forbid other compensation than the salaries prescribed are interpreted by the auditor as declaratory of a public policy against payment of more than one salary to the same person for the same time. An appropriation for the salary of the secretary of the State Board of Health, provided he receive no other salary from the state, is one of the acts referred to. On the other hand, the attorney-general argues that these express prohibitions, by implication, recognize a general rule to the contrary. He also refers to other statutes permitting one person to hold two offices, allowing compensation for both, giving as an example the act making the county attorney ex officio divorce proctor, and allowing compensation for services in that office in addition ta his regular salary as county attorney. Turning from these enactments, which afford but little aid to our present inquiry, it is found that the common law does not prevent one person from holding two offices, provided that the duties of neither one are incompatible with the duties of the other. (Throop on Public Offices, 30; Abry v. Gray, 58 Kan. 148, 48 Pac. 577.) The auditor does not say, however, that it is against the law or public policy to hold two offices, but contends that it is against public policy for one man to draw the salaries of two offices. In the absence of constitutional or statutory restrictions, the incumbent of two offices which he may rightfully hold is entitled to the compensation provided by law for each. (Mechem’s Public Offices and Officers, § 859; 29 Cyc. 1424; United States v. Saunders, 120 U. S. 126; Cornell v. Irvine, 56 Neb. 657, 77 N. W. 114; State, ex rel. Chatterton, v. Grant, 12 Wyo. 1, 73 Pac. 470, 2 Ann. Cas. 382, and Note.) This principle is not disputed, but the auditor distinguishes this case by the fact that a professor in the University is not a public officer. While that is true, his compensation is fixed by public authority and is made payable out of public funds, and the principle is applicable. (United States v. Saunders, supra.) Offices are incompatible when the performance of the duties of one in some way interferes with the performance of the duties of the other. This is something more than a physical impossibility to discharge the duties of both offices at the same time. It is an inconsistency in the functions of the two offices. It is difficult to give a definition which will have universal application. The distinction is best determined by an examination of the cases which have been held to fall on one side or the other of the line of cleavage. Many of these cases are collated in a note in 2 Ann. Cas. 380. In the Abry case this -court held that the offices of clerk of the district court and city clerk were not incompatible so that by accepting one the other would be vacated. In Cornell v. Irvine, supra, it was held that the duties of a commissioner of the supreme court of Nebraska were riot incompatible with the duties of a lecturer at the State University, and that the commissioner who had received his salary in full was also entitled to the compensation allowed him as a lecturer. That case is quite similar to this one, and the opinion is very valuable, reviewing several other decisions. No incompatibility is discovered between the duties of fish and game warden and professor of-systematic zoology and taxidermy and curator of birds, mammals and fishes. Indeed, Professor Dyche’s long study, research and experience in the subjects included'in his professorship were considered by the chancellor and regents of the University and the governor as fitting him especially for the highly important duties of fish and game warden and the problems to be solved in the extension of the state hatchery. Instead of being inconsistent or incompatible, duties performed and experience gained in one station would enable the incumbent the more intelligently and effectually to do the duties of the other. We believe that the legislature agreed with the executive and the University board in this view. To the objection that no services were rendered to the University during the months of July, August, September and October, the period for which the voucher was presented, it should be observed that the greater part of this time was in the vacation interval of the scholastic year. The dates of Professor Dyche’s lectures must necessarily be prescribed by the University authorities, and the circumstance that he did not lecture in September or October is not regarded as important. The presumption is that he will during the year perform all the services his employment requires, as the chancellor and board shall direct. The question whether it is within the official duty of the auditor to inquire whether, or in what manner, the services were performed was discussed, but it is not necessary to decide it. / It is concluded that there is no rule of public policy that will prevent the state from receiving the plaintiff’s services as fish and game warden, and also as a professor in the University, and paying his compensation from the direct appropriation made for his salary as warden, and from the amount provided by the board of administration for his salary as professor. The motion for judgment will be sustained and the peremptory writ allowed as prayed for.	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The opinion of the court was delivered by Smith, J.: This action was brought by appellant to enjoin the assessment and collection of a special-assessment tax against it on its right of way for the grading of Muncie boulevard, in the city of Kansas City, Kan. Appellant contends, first, that the assessment is illegal because its land is not benefited by the grading of the boulevard and is a portion of its right of way fenced off from the boulevard and used exclusively for running trains. That the right of way is unplatted land is not questioned, and by the provisions of section 1010 of the General Statutes of 1909 the special assessment was properly made on the land adjoining the improvement to the distance of 300 feet from the boulevard. This is the rule of liability prescribed by the law; but the statute does not prescribe the extent or amount of the liability. There is no contention but that the entire right of way assessed lies within 300 feet of the boulevard, but a part of the right of way is not immediately adjoining the boulevard. The right of way, however, consists- of one entire tract, and is therefore assessable for the improvement. See Railroad Co. v. Abilene, 78 Kan. 820, 98 Pac. 224, where it was said: “The fundamental fact upon which the validity of special assessments rests is an increment of benefit to the property taxed resulting from the improvement.” (Syl. ¶ 2.) By the provisions of section 1010, supra, it is clearly implied that property within 300 feet of the improvement is especially benefited, and there was no attempt on the part of appellant to show that its land was not benefited, except only that the land was its railroad right of way, was used only for running its trains, and was fenced off entirely from the boulevard. This might tend to prove that the land was not benefited so long as it is kept for and only as a right of way for the running of trains, but fails to show that it would not be benefited in case of change of condition. The first section of the syllabus in A. T. & S. F. Rld. Co. v. Peterson, 5 Kan. App. 103, 48 Pac. 877, reads: “Lands owned by a railroad company, and used for its depot, warehouse, roundhouse and shops, situated within a city of the second class, are liable to assessments for local improvements as other lands are.” The fact that appellant’s land was not at the time used for the purpose indicated in the above quotation does not refute the implied assumption in the statute that the improvement resulted in an increment of value to the land. No question of foot rule as to the amount of the assessment is involved in this case. The assessment was made upon the appraised value of the land per acre. Again, it is contended that this assessment is illegal for the reason that the evidence shows that the appraisers made a mistake in the acreage of appellant’s land, and consequently fixed the appraised value at more than twice the amount they intended to appraise it. On the other hand, it is contended, if there was such a mistake, to entitle the appellant to any remedy it must pay the portion of the assessment which was legal before it is entitled to maintain the action, citing City of Laiorence v. Killam, 11 Kan. 499. That case, like this, was an injunction proceeding relating to the collection of taxes. It is distinguished, however, from this case by the first sentence of the first section of the syllabus, which reads: “Equity will not interfere to .restrain by injunction the collection of taxes when the property is subject to taxation, the tax legal, and the valuation not excessive, simply because of irregularities in the tax proceedings.” In this case the ground for the injunction is that the valuation was excessive. The answer to the claim of appellee, that appellant should have paid the correct amount of the assessment before proceeding to enjoin the whole assessment, is that appellant contended .that none of its land, or at most only a part thereof, was assessable, and also that the entire acreage of its land was much less than the amount assessed. It had the right to have each of these •questions determined. The effect of the decision is adverse to appellant upon each of its contentions. Injunction is an equitable remedy and is appropriate in this case. As said in Holmes v. Holt, 90 Kan. 774, 186 Pac. 246: “When a court of equity acquires jurisdiction of an action brought to determine whether certain conveyances are, in fact, mortgages, although purporting to be deeds, it will retain jurisdiction for the purpose of adjudicating all differences between the parties growing out of the transaction.” (Syl. ¶ 1.) (See, also, 22 Cyc. 790.) As to the acreage of appellant’s land, it produced one Merrich, who testified that he was a civil engineer for "the appellant for twenty-five years; that within that time he had made surveys of appellant’s land in the location known as Muncie boulevard, east of Eighteenth street; that he was familiar with the land owned by it, and especially its right of way between Twelfth and Eighteenth streets; that he had made survey of appellant’s right of way, within the last week or ten days, between Twelfth and Eighteenth streets; also, that the tract constituting the appellant’s right of way contained 3.04 acres. The appellees made proof of” the enactment of the necessary ordinances, appointment of appraisers, and other preliminary proceedings, as to which there is no •controversy. The appraisers’ report of the appellant’s land was introduced in evidence, and is as follows: “Land No. 3. Beginning at the intersection of the east line of Twelfth street produced with the north line of the right-of-way of the Union Pacific R. R.; thence south to the south line of said right-of-way; thence westerly along said right-of-way to the east line of the West i/2 of the S. W. % of Sec. 16, T. 11, R. 25 ; thence north to the north line of said right-of-way; thence easterly along said right-of-way to beginning. Value $27,900. $1915.65.” [In pencil, “6.2a.”] T. J. Magee, one of the appraisers, testified that he estimated by the acre in appraising the land while on the ground, and the acreage was figured. afterward. Being shown the figures “6.2a” on the report, said he could not say whether that was the acreage they figured on, and did not know who put the pencil notation on the report. George McGrew, another of the appraisers, thinks the figures on the report aré Mr. Caldwell’s; thinks Caldwell figured the acreage; that is his best recollection, the land was valued (appraised) at $4500 to $5000 per acre — not as high as $9000 per acre. Mr. Caldwell, the other appraiser, did not testify. No one testified that there is 6.2 acres in appellant’s tract of land, or that it was so' estimated by the appraisers. Yet the fact that 6.2 times $4500 is $27,900, the value placed at the bottom of the report, indicates that the figures “6.2a” was considered as the acreage. It does not, however, tend to prove that it is the true acreage of appellant’s tract. There is then no evidence, unless it be the notation on the report, conflicting with that of the surveyor, and his evidence should be taken as true. It seems evident that a mistake was made by the appraisers and that equity demands a correction thereof. The judgment is modified as follows: The assessment is to be computed on 3.04 acres, instead of 6.2 acres, at the same rate and appraised value per acre as before, . and so modified in amount is affirmed.	[ -10, -6, -108, -34, -6, -64, 42, -104, 97, -16, -92, 91, -115, 10, -128, 53, -90, 61, 81, 42, 68, -93, 71, -93, -106, -13, -13, -51, -79, 88, 102, 70, 76, 49, 74, -107, 102, -53, 93, 26, -114, -84, -120, 77, -39, 96, 52, 107, 22, 79, 49, -37, -5, 40, 24, -63, 40, 44, 123, -88, -47, -8, -102, -43, 126, 4, 49, 38, -68, 7, -56, 8, -104, 21, 8, -40, 119, -90, -105, -10, 45, -39, 8, -26, 98, 17, 53, -17, -6, -40, 14, -46, -115, -25, -122, 24, 75, 37, -106, -35, 77, 84, -57, -2, -25, 21, 27, 120, 1, -117, -78, -79, -49, 112, -126, 67, -33, -125, 48, 97, -62, -126, 94, 103, 18, 27, -113, -104 ]
The opinion of the court was delivered by Benson, J.: This is an action in mandamus to compel a justice of the peace to grant a change of venue in an action of forcible entry and detainer. The case is presented here upon the alternative writ, the answer and affidavits. While there is some conflict in the affidavits it appears from statements of counsel that the defendant appeared on an adjourned day just before the hour set for trial and laid upon the justice’s table an affidavit for a change of venue and confession of judgment for costs, and then left the room, making no further appearance in the action. The justice made the usual notation of filing. At the proper time the case was called, the plaintiff appeared, witnesses were examined and judgment was rendered in favor of the plaintiff. No formal motion, oral or written, was made for a change of venue. Two reasons are given for refusing to change the venue; first, that a proper application was not made, and second, that the papers were presented too late. The statute regulating practice before justices of the peace contains the following provision: “If, ón the return of process, or at any time before trial shall have been commenced, either party shall file with the justice of the peace before whom any cause is instituted or is pending for trial, an affidavit, stating, . . . second, that he verily believes that he cannot have a fair and impartial trial before such justice, on account of the bias or prejudice of the said justice against the affiant; . . . —the trial of the case shall be changed to some other justice of the peace, as provided in the next section.” (Jus. Civ. Code, § 75.) Another section requires the payment of costs already accrued or a confession of judgment therefor. In another article of the same act relating to actions for forcible entry and detainer it is provided: “If the suit be not continued, place of trial changed, or neither party demand a jury upon the return-day of the summons, the justice shall try the cause.” (Jus. Civ. Code, § 166.) ' The defendant contends that the last provision relating specially to proceedings in forcible entry and detainer requires a change of venue only when applied for on the return day, and that the general provision allowing such a change at any time before the trial does not govern in such proceedings. Whether this view is correct or not, a question was presented for judicial consideration and decision, and the error,' if any, can be corrected only on appeal. The contention of the defendant that a motion or application other than presenting the paper was necessary can not. be sustained. The presentation of the proper affidavit and confession was a sufficient application. It could not be presumed that the papers were filed in vain, or for any other purpose than to secure a change of venue. The justice, who is the clerk of his own court, receiving such papers can not doubt the object of presenting them. No other formality is required by the statute. It does not follow, however, that mandamus is the proper remedy. It. was decided in Barnhart & Brother v. Davis, 30 Kan. 520, 2 Pac. 633, that although an application for change of venue is sufficient and should be granted the court still has jurisdiction and its judgment is simply erroneous and not void. In Ellis v. Whitaker, 62 Kan. 582, 64 Pac. 62, it was held that a refusal by a justice of the peace to grant a change of venue upon a proper application was erroneous, but that mandamus would not be allowed fco compel the change after a judgment rendered in the action had been satisfied by a forced sale of property. It was said in the opinion: “The justice, however, did not lose jurisdiction over the case. His ruling in denial of the application was error, assuming that such application was properly made, but his judgment thereafter rendered was not a nullity. It was voidable only.” (p. 583.) In Hamilton v. Smart, 78 Kan. 218, 95 Pac. 836, an application for a writ of mandamus to compel a district judge to grant a change of venue was denied. It was said in the opinion: “The extraordinary remedy of mandamus can not be employed when an effective remedy may be had in a proceeding in error.” (p. 218.) The cases cited rule the present controversy. The plaintiff had an adequate remedy by appeal. In a case in Nebraska where motions for a continuance. and for a change of venue were made before a justice of the peace and overruled, it was decided that mandamus would not lie. (State, ex rel. Proctor, v. Cotton, 33 Neb. 560, 50 N. W. 688.) The same principle is stated in 26 Cyc. 203. A peremptory writ will not be allowed.	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The opinion of the court was delivered by Porter, J.: The action in the district court was upon a petition to obtain a new trial of a previous action, on the ground of newly discovered evidence. The court granted a new trial, and it is claimed that this was error. Means, who is the appellant, was plaintiff in the main action, and Carpenter and others were the defendants. One of the principal issues tried in the original action was whether Mary Yike had conveyed cer tain real estate to L. A. Carpenter on or about June 21, 1898. Carpenter claimed that she had and that the deed was lost and had never been recorded. The death of Mary Yike having occurred prior to the trial, Carpenter was not a competent witness to testify to conversations and transactions had with her in her lifetime, but offered evidence tending to show the execution of a general warranty deed from her conveying the real estate to him, and also the testimony of a number of witnesses to the effect that she had at various times admitted that she was not the owner and that her brother, L. A. Carpenter, was the owner. In the trial of that action the jury found in favor of the plaintiff and against Carpenter and the other defendants, evidently discrediting the testimony as to the admissions made by Mrs. Yike. After the verdict and judgment, when it was too late to file a motion for a new trial, the defendants discovered the existence of an affidavit executed by Mrs. Yike on the 24th day of December, 1906, and filed in the United States Bureau of Pensions at Washington, D. C., for the purpose of obtaining a widow’s pension, in which affidavit,- testifying in relation to her property, she stated that it had been sold for taxes, and that her brother, “Lyman A. Carpenter, redeemed it, and on her and her husband’s agreement to give him a quitclaim deed to it, he permits her to hold it during her lifetime, and at her death it becomes absolutely his. The taxes are paid by her but in his name by said agreement.” On the question of diligence, it was shown that the motion for a new trial in the original action was overruled on the 13th day of April, 1912, and that the existence of -the affidavit in the pension matter was not discovered by the defendants in that action until a letter was received by their counsel. The letter is dated April 17, 1912. Upon the evidence the trial court found that due diligence had been exercised, and this may be regarded as settled. The principal contention of the appellant is that it was error to grant a new trial, because the newly dis covered evidence is purely cumulative, and they rely upon the case of Brown v. Wheeler, 62 Kan. 676, 64 Pac. 594. The newly discovered evidence there consisted of a letter containing an admission in writing. The trial court had overruled the motion for a new trial on the ground that the evidence was merely cumulative to similar oral admissions proved upon the trial to have been made by the writer of the letter, and this ruling was affirmed. It was said that the fact that the letter was in writing while the admissions shown on the trial were oral would not take it out of the rule against cumulative evidence. The cases are not alike. While the affidavit is in writing, it is something more than a mere letter. It was used as testimony in a proceeding in the same manner as a deposition might have been-used. The statements in it as to the ownership of the real estate were of a somewhat higher class of evidence than evidence of oral admissions made in ordinary conversations, such as those testified to at the trial. They are statements made about a material matter, and the same rule should apply as if after the trial the parties had discovered a deposition in which a party had made statements under oath as to facts which were material in the action where a motion for a new trial was pending. In the Wheeler case the trial court refused a new trial. Here the court granted it, and it always -requires a greater showing of error to reverse an order granting a new trial than one refusing it. We think the case comes within the doctrine of Dent v. Simpson, 81 Kan. 217, 221, 105 Pac. 542, a survey case where the main issue was the location of the original stone marking the government corner. At the trial witnesses disagreed as to the government comer. No witness testified where the stone was. After the trial a witness was discovered who knew where the original stone was located, and he went and found it at the place where he had himself covered it up when working as road overseer years before. This was held not to be cumulative. It is argued in the brief of the appellant that the affidavit acknowledges the execution of a quitclaim- deed which was made upon an agreement not'relied upon by the appellees, and that this is not an admission of the existence of a warranty deed upon which the appellees claim title. ■ Attention is also called to the fact that on the trial of the main action there was evidence of a quitclaim deed from Mrs. Yike and her husband to L. A. Carpenter covering all of the property at that time owned by Mrs. Yike; and it is contended that the statements in the affidavit do not support the contention of the appellees. It is not our purpose here to pass upon the weight of the testimony or to even suggest that the statements in the affidavit clear up the controversy to the extent that the discovery of the original stone in Dent v. Simpson did. What we hold is that there was no error in granting the new trial,' and the judgment is affirmed.	[ -48, 106, -40, -113, -118, -32, 42, -104, 98, -123, 36, 83, -17, 86, 4, 45, 115, 61, 81, 42, -58, -77, 23, -87, -46, -13, -29, -43, -79, -52, -12, -49, 76, 32, 74, -107, 102, -118, -59, 88, -114, -108, 10, -57, -37, 120, 50, -17, 84, 79, 117, -6, -13, 40, 29, -58, 10, 47, 106, -87, 80, -71, -93, -115, 91, 6, -79, 38, -100, -57, -24, 14, -104, -79, 0, -24, 115, -74, 22, 116, 99, -117, 12, 38, 98, 49, -19, -17, -88, -104, 46, 54, -65, 39, -106, 88, 27, 76, -68, -99, 117, 80, 38, 116, -2, 21, 25, 108, 9, -113, -42, -79, 15, 62, -103, 3, -53, -123, 52, 112, -52, 96, 92, 66, 17, -109, -114, -70 ]
The opinion, of the court was delivered by BURCH, J.: The action in the district court was one to recover a commission for obtaining a loan which the proposed borrower declined to accept. Little was president of the Wichita Loan and Trust Company. Liggett owned vacant lots in Wichita upon which he desired to erect a three-story fire-proof business building, to be constructed and equipped according to modem design and method. Preliminary estimates indicated that a building such as he had in mind could be erected for $55,000. His resources were such that if the building cost more he could not undertake its construction, and at those figures he would need a loan of $40,000. The situation was discussed with Little, who took an application to his company for the loan. It was orally agreed, however, that if the cost of the building, when definitely ascertained, should exceed the preliminary estimate no loan should be made, and if none were made no commission should be paid. ' At that time formal plans and specifications had not been prepared. When this was done and bids for the construction of the building were solicited the bids ranged from $65,000 to $79,000. In the meantime the loan and trust company presented the application to a New Hampshire banking company, which agreed to make the loan. Liggett declined to take the loan, and Little, as assignor of the loan and trust company, sued for a commission. He was defeated by proof of the oral agreement, and appeals. The application for the loan was made on a blank form provided by the loan and trust company. Under the caption, “Application por City Loan,” appeared the following: “I, the undersigned, John S. Liggett, of Wichita, (Post Office), County of Sedgwick, State of Kans. do hereby appoint W. L. & T. Co. my agent to procure a loan for me of Forty Thousand Dollars, for term of Five years, at 5% per cent, per annum, 1000 com. 150.00 cash, 300.00 one year, 550.00 two years, interest to be paid semi-annually, principal and-interest payable at such place as the lender may direct, and secured by First Mortgage of approved form on real estate hereinafter described.” Following this matter appeared the usual series of questions and answers covering many subjects supposedly pertinent -to applications for loans on city property. The printed form of application which was used contemplated an agreement to accept the loan applied for and an agreement to pay for services in procuring it in case it should not be accepted, but because the proper blanks were not filled those engagements were eliminated. The plaintiff argues that the written application constituted a contract which so clearly and definitely expressed all the results of the negotiations of the parties that it could not be explained or supplemented by parol evidence. The court interprets the instrument as an application to be presented to investors as the basis for negotiating a loan. It is uncertain and ambiguous. Thus the provision, “1000 com. 150:00 cash, 300.00 one year, 550.00 two years,” might well relate to the terms of the loan, in the midst of which it is found, and not to the terms of the agency. The instrument is also incomplete. There is no express promise to accept a loan if one were obtained or to pay for services in obtaining a loan, although the paper contained matter drawing the attention of the parties to those subjects. While the law might attach, such obligations to the application, the instrument itself does not declare them. The result is that extrinsic evidence was proper to show with certainty the full and true intention of the parties. The parol evidence produced did not contradict anything that was written. Authority to negotiate a loan, the amount of commission and the terms of payment were not disputed, but they were supplemented by conditions which were agreed to contemporaneously with the things set down in the' application, and which were not proper to be inserted in the application, considering the use to be made of it. Thus far the application has been regarded as taking effect at the time it was signed, and the opinion of the court delivered by Mr. Justice Brewer in the early case of Babcock v. Deford, 14 Kan. 408, is decisive of the controversy. The doctrine of this case has been approved and applied in many subsequent decisions. The distinction between such cases and cases like Thisler v. Mackey, 65 Kan. 464, 70 Pac. 334, in which the defense was that the express and unconditional promise to pay contained in a promissory note was conditional, is obvious. The evidence and special findings of the jury are open to another interpretation, however, equally conclusive against the plaintiff. The defendant testified, in substance,, that when the subject of a loan was discussed with the plaintiff he had nothing but a preliminary estimate of the cost of the contemplated building; that this estimate was not made by an architect, but was simply a lump guess and was unsatisfactory; that he intended to have building plans made; that he could then tell whether or not he could build for so much money as he could afford; that he did not care to go to any expense so far as a loan was concerned until he could see whether he was going to build; that all this was talked over with the plaintiff, and that, yielding to the solicitation of the plaintiff, he signed the application on that basis. From this testimony the jury made the following findings: “Was the application for the Forty Thousand ($40,000.00) Dollar loan conditioned that the same would build the contemplated building on the lots in question? Ans. Yes. “Did the defendant employ the Wichita Loan & Trust Company to procure the loan for him of $40,-000.00 at 51/2% interest on the real estate owned by defendant? Ans. Yes — provided that building could be constructed for $55,000.00. “Did the defendant agree to pay the Wichita Loan & Trust Company $1000.00 commission for procuring a loan for him of $40,000.00 bearing 5%% interest at 5 years? Ans. Yes — provided building contemplated was constructed.” Since the application and the agency which it created were conditioned upon the definite ascertainment of the cost of the building, the decision in the case of Strowpe v. Hewitt, 90 Kan. 200, 133 Pac. 562, applies: “A contract can not be varied .until there is a contract, and there is none until it takes effect. Evidence that a writing purporting to be an agreement is not to take effect until the happening of some event or the ascertainment of some fact may be received, not to contradict the writing, but to show when it took effect, or that it never took effect.” (p. 203.) This ends the case. The controlling facts were those found specially by the jury, and the findings are unaffected by any of the assignments of error other than that the parol evidence on which they were based was not admissible. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Porter, J.: The action in the district court was brought by the city to enjoin the defendants from obstructing a public street and to quiet its title to the use of the land for the purposes of a highway. The court granted the relief prayed for and the defendants have appealed. Many of the errors complained of are highly technical, and some of the questions are raised here for the first time. One of the principal contentions argued is that the court should have sustained an objection to any testimony on the ground that the petition fails to state a cause of action. It is insisted that inj unction was not the proper remedy because the sole issue involved was the legality of the road. The defendants were attempting to erect a building in a traveled street, and injunction has repeatedly been held a proper remedy to prevent the obstruction of a street. The city rests under statutory obligations to keep its streets unobstructed. (1 Elliott on Roads and Streets, 3d ed., § 451; 3 McQuillen, Municipal Corporations, § 1371; Council Grove Township v. Bowman, 76 Kan. 563, 92 Pac. 550; Smith et al. v. McDowell, 148 Ill. 51, 35 N. E. 141, 22 L. R. A. 393; 4 Pomeroy’s Equity Jurisprudence, 3d ed., § 1351.) It is objected that the petition does not show that the city had jurisdiction over the road. It alleges that the road was laid out in the first place by the county, and that it has been within the limits of the city for more than eighteen months prior to the beginning of the action. This was sufficient to ;show that the city has jurisdiction over the street. (Hitchcock v. City of Oberlin, 46 Kan. 90, 26 Pac. 466.) No motion or demurrer was leveled against the petition; the defendants filed an answer alleging that the action of the plaintiff with respect to the street was a continuing nuisance, and asked affirmative relief against the city. The petition was certainly good as against an objection to the introduction of testimony. (Barker v. Moodie, post,' p. 566.) The claim that defendants were entitled to a jury trial is raised here for the first time. There was no request by the defendants for a jury during the trial; and besides, the action was purely an equitable one for an injunction, and the defendants were not entitled to a jury as a matter of right. The street or road in question runs in a northwesterly direction from Quindaro boulevard, in Kansas City, across lands owned by the defendants, where it connects with a road running north to the city waterworks. For a number of years the main pipe lines leading from the city waterworks to the city have been kept and maintained in this road. The road was .taken into the city about two years before the action was brought. Where the road crosses the land of the plaintiffs it is for a part of the distance substantially what was known as the “Tertling road” prior to 1886. Since 1889 it has been known as the “cinder road.” In July, 1912, the plaintiffs, who had purchased the land in 1900, applied to the city authorities for permission to erect a building on their land, and were proceeding to erect the foundation of the building* in the public street when the city brought the action. It is complained that the court committed error in admitting in evidence certain road records of Wyandotte county, the claim being that the records were insufficient and showed affirmatively that the proceedings relating to the road were illegal and void, and therefore the county commissioners had acted without j urisdiction. The records were offered for the purpose of showing that in 1886 a petition was presented and proceedings taken by the county board to review and relocate that portion of the road in question. It is conceded that the records are, defective in some respects, and the county clerk testified that he was unable to find in his files the original papers relating to the road. They seem to have disappeared. The record, however, was competent and relevant for the purpose of showing an attempt by the county, in 1886, to relocate this road through the land now owned by the defendants. The land then belonged to Martin Stewart, who was called as a witness at the trial. He testified that he formerly owned the Burke land; that he was interested in the proposed road on account of it crossing a portion of his land; that he signed the petition and was present with the viewers when they viewed the road; that the road which they viewed crossed his land where the so-called “cinder road” now is; that he made a claim for damages and was allowed $50, and accepted it; that the road was afterwards worked by Mr. Gruendel, the road overseer. He also said that after the road was relocated he fenced his land on the south side of it, and the evidence shows that when the Burkes purchased the land in 1900 the fence was there on the south side. Mr. Gruendel testified that he remembered the review of the road in 1886, that he was road overseer for sixteen years, beginning sometime in the “eighties,” and that he worked what is called the “cinder road” every year, that he graded it and put the cinders on it. Several other witnesses testified substantially to the same effect. The objection to the admission of the records relating to the road was properly overruled. They were sufficient to show color of title and the nature and extent of the claim under the proceedings for establishing the road, conceding that they were defective. The law is well settled that where there has been an attempt by the authorities to establish a highway but the proceedings are defective and invalid, nevertheless a highway may be shown if the public has acted upon the claim under the defective proceedings and has used the land as a public highway for the requisite period. (1 Elliott on Roads and Streets, 3d ed., § 192.) In this case it was shown that the public had used the road as a highway under color of title from 1886 until 1912. It is true there is some contention that the evidence shows that the defendants had not acquiesced in the use of the road by the public from 1900, when they went into posses sion under their deed, and that the requisite period of time had not elapsed to entitle the public to claim a highway by prescription. But conceding this to be true, the city claims that a road has been established by dedication. There can be no doubt that dedication may be shown by acts of estoppel on the part of the owner. (Cemetery Association v. Meninger, 14 Kan. 312, 316; Raymond v. Wichita, 70 Kan. 523, 533, 79 Pac. 323.) It is said that all that is necessary to the validity of a dedication is the intent of the owner to appropriate it to public use and acceptance by the public; and that any act or acts clearly manifesting an intent to dedicate is sufficient. “Dedications have been established in every conceivable way by which the intent of the dedicator could be evinced.” (13 Cyc. 453.) While there' must be an intent on the part of the owner to dedicate his property to public use, courts are not concerned with any secret intention in the mind of. the owner, but only with the intention manifested by his acts.. (Raymond v. Wichita, supra.) In the case last cited it was held that the change of a highway “from a country road to a city street did not affect the rights which the public gained in the way of user, nor in any manner make the acquiescence in such use by the claimant less effective as an estoppel against him.” (Syl. ¶ 1.) The acts of Martin Stewart in signing the petition for the road, in making a claim for damages and accepting the allowance made by the board; the fact that he fenced his land on one side of the road and for years thereafter acquiesced in the improvement of the road by the road overseer, were sufficient to estop him forever from asserting that the road was not a public highway. While he owned the land he could not have maintained an action to enjoin the public from the use of the road, because his acts would have estopped him. His appearance with the viewers, his signing of the petition and his conduct generally with respect to the road cured any defect of notice or want of jurisdiction of the county commissioners. (Ogden v. Stokes, 25 Kan. 517; Comm’rs of Woodson Co. v. Heed, 33 Kan. 34, 5 Pac. 453; Stephens v. Comm’rs of Leavenworth Co., 36 Kan. 664, 14 Pac. 175; The State v. Hedeen, 47 Kan. 402, 28 Pac. 203.)' “Where defective proceedings are resorted to for the purpose of laying out a highway, and the land owner accepts the damage as awarded, he is estopped from contesting the validity of the highway, and the act may be regarded as a dedication, and if the owner of land intended and assented that the public should use it, and the public do so, that is a dedication. The owner may estop himself from demanding compensation prior to- the taking of his property, and also estop himself from prosecuting an action to prevent the taking of his property for public uses, in several ways; thus, if he expressly consents, or with full knowledge of the taking, and makes no objection, and permits a public corporation to enter upon his land and expend money thereon, and carry into operation the purposes for which it was takén; .or by voluntarily accepting money allowed as damáges by the tribunal appointed for the assessment of such damages, the actual receipt of the money by the owner of the land ratifies the proceedings and amounts to a dedication of his property to such public uses.” (2 Herman on Estoppel and Res Judicata, § H49.) There was evidence, therefore, to show a dedication by the owner of the land in 1886, and an acceptance and user by the public for fourteen years before the defendants purchased. “Except when user is relied on to raise a presumption of dedication the duration of the user is wholly immaterial.” (13 Cyc. 465; Raymond v. Wichita, supra.) The user alone is not sufficient to found a presumption that there has been a dedication, unless it has been sufficient in time to amount to prescription ; but fourteen years user by the public, from 1886 to 1900, coupled with the acts and conduct of the landowner, was certainly sufficient to show a dedication. (Cemetery Association v. Meninger, 14 Kan. 312, 316.) The records respecting the road showed that Martin Stewart claimed and was allowed $50 damages for land at another point in the road in a different section. He testified that he was paid that amount for damages to the Burke land. However, his other acts were sufficient to show a dedication if he had never been paid any damages. The judgment is a general one in favor of the city, and since the evidence was sufficient to show a, dedication, the defendants are not in a position to take advantage of any defects or irregularities in the proceedings by which the county sought to establish the road. A permanent injunction against the defendants from obstructing the street might have given the city all the remedy it needed, but there certáinly was no harm in quieting the title of the city to the use and possession of the street for the purposes of a highway. There is a conflict in the authorities as to whether ejectment will lie to secure the possession of streets dedicated to the use of the public. Many courts hold that ejectment is a proper remedy for a city; that a municipal corporation has moré than an easement in its simplest form, the mere right to pass over the land of another; and, in fact, the right of the city may be said to extend beyond that. It has the right of exclusive possession, the right to grade and otherwise improve the street. It acquires such an interest in the land as is necessary for the enjoyment of the use by the public. (1 Elliott on Roads and Streets, 3d ed., §§ 321, 322.) The relief prayed for and granted in this case was therefore appropriate to the facts, and the judgment of the court in granting a permanent injunction and quieting the title of the city as against the defendants must be affirmed.	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The opinion of the court was delivered by West, J.: The defendant, the administrator of the estate of William Ellis, deceased, appeals from a decision adjudging the plaintiff competent to inherit from the decedent. The questions of paternity and of general and notorious recognition are involved. (Gen. Stat. 1909, § 2956.) The plaintiff, Notley E. Record, son of Mary Record, was bom in Pendleton county, Kentucky, January 12, 1873. William Ellis, born and raised in the same neighborhood, was a single man about thirty years of age at this time and engaged to marry Miss Lydia B. Pribble who lived in the neighborhood. On February 26, 1873, Mary Record, a single, woman living in the neighborhood, made complaint charging the decedent with being the father of her child. A warrant was issued, and returned on March 20, not executed. Soon after its issuance Ellis went to Indianapolis where in March he was married to Miss Pribble. They lived there until the following year, when they moved to a farm in Morgan county, Indiana, and re mained there until 1884, when they moved to Clark county, Kansas, near the Meade county line, in which vicinity Ellis and his wife lived together until his death in 1911, two sons, Frank and Carl, having been- born to them. During these years Ellis made a number of visits to the old neighborhood in Kentucky, at which times he made statements and admissions which fully settle in favor of the plaintiff the question of paternity and which amounted to a recognition. It does not appear, however, that, with one exception, any one ever heard William Ellis acknowledge the paternity in Indiana, where he lived for ten years, or in Kansas, where he lived for twenty-seven years, and his wife and sons up to the time of his death claimed to have had no knowledge or information concerning the matter, although the wife, a cousin of Mary Record, had gone with him on a visit to the old neighborhood in 1883, and again in 1906, and the eldest son had visited in Kentucky with friends and relatives in 1904. One witness, who was visiting the decedent in Kansas, testified that Ellis requested him to say nothing to the children here about his life back there, but the intended significance of this remark is a mere matter of inference. Keeping the secret thus well in the neighborhood where he spent much of his married life and raised his children, the question remains whether the recognition shown elsewhere fills the requirement of the statute. In addition to various statements concerning his relations with Mary Record, and concerning the failure of the constable to execute the warrant, an old farmer and school teacher testified that in 1875, in Indiana', when working with Ellis, the latter would frequently say in a reminiscent way, and sometimes in a jesting way, “I wonder how my boy, or how my Kentucky stock, is coming on back in Kentucky. My Kentucky stock, or my boy.” Sometimes he would use the name Not or Notley, and refer to him as “my boy.” He also testified that he heard Mrs. Ellis frequently ask something about her husband’s Kentucky stock. This was denied by Mrs. Ellis. That when he would accuse Ellis of lying about having such a boy he would say, “I am not.” Another witness testified that in 1878, in the old neighborhood, on meeting Ellis, he said, “How is my boy?” and on being asked What boy? he replied, “My boy, Not.” Another, that on Christmas, 1883, at a wed ding, while the' witness and decedent’s father-in-law and others were sitting together, Ellis asked the witness: “How is my boy getting along? Is he big enough to do some work? I want to take him west with-me to raise corn.” The same witness, a brother of Mary Record, testified that in 1909 Ellis came into his booth at a fair at Falmouth, Ky., and asked where the plaintiff was, and requested witness to give him his address, saying: “It is funny I can’t find that boy; he is roaming around in the west the same as I am.” One witness deposed that before Ellis left he told witness’s father that the child was his, and what he was working for was to get away and get shut of it; that on his return visits the witness frequently talked to Ellis about the matter, and he often inquired about the boy; that he heard a conversation between Ellis and the father of witness in which he said he would give the boy something when the time came, but his wife objected to it. Another, that he saw. Ellis on a return visit, probably in 1893, rode with him two or two ánd a half miles, asked him if he had seen his boy since he had come in. He said no, but he would like to see him. He said: “Well, I would like to see that boy; I would like to take him home with me, if he would go. I have got hold of a good deal of land down there in Kansas which some day will be valuable, and I could give Not a start if he would go home with me.” Another testified that he saw the foot-race when the constable went to arrest Ellis; that in talking about the matter on a return visit Ellis said it was his boy; that when the boy was about twelve or thirteen years old, while witness and Ellis .and others were at a certain store, the boy came in for his mail. Some one remarked that that was his boy, and Ellis said, “I reckon it is.” Notley Record testified that he never saw Ellis but once in his life, and that was when he was about sixteen ; that he had known of his being in the neighborhood at other times, but if he saw him he did not know him; that in the instance mentioned he just happened to meet him at the cross-roads store. The storekeeper winked at Ellis and • “I knowed I was trapped then. I had always shunned him,” and Ellis there gave him a cigar. What is meant by the requirement that the recognition must be general and notorious? The supreme court of Iowa, whose statute is identical with ours, has ruled that “general” means “extensive, though not universal”; and “notorious” is synonymous with “open.” (Van-Horn v. Van Horn, 107 Iowa, 247, 77 N. W. 846.) As defined by Webster “general” means “common to many, or the greatest number, widely spread; prevalent; extensive though not universal,” and “notorious,” “generally known and talked of by the public; universally believed to be true; manifest to the world.” In Watson v Richardson, 110 Iowa, 673, 80 N. W. 407, it was said: “Both of these words are used in the statute with the design of emphasizing the thought that the understanding of the father’s recognition should be as extensive as the immediate community of his residence, and within the common knowledge of the public.” (p. 691.) In other instances the approved definitions were: “Extensive, common to many, or the majority, but not universal.” “Not concealed, open, generally or commonly known or spoken of.” (McCorkendale v. McCorkendale, 111 Iowa, 314, 316, 82 N. W. 754; McNeill v. McNeill, 166 Iowa, 680, 703, 148 N. W. 643.) The recognition required is not that of heirship but sonship. (Alston v. Alston, 114 Iowa, 29, 86 N. W. 55.) It need not be in a state which permits bastards to inherit. (Van Horn v. Van Horn, supra.) In a recent decision it was held that it is not necessary that it (the recognition) should have been universal or made known to all or a majority of the community, but it was sufficient where the proof showed that the father frankly admitted the relationship when there was occasion for him to speak, and made no attempt to conceal the same, though it also appeared that there were many of his friends, relatives and acquaintances who had no knowledge thereof. (Tout v. Woodin, 157 Iowa, 518, 137 N. W. 1001.) In that case there was testimony that the putative father visited the mother while still in bed, held the child in his arms, and brought or sent supplies for its use. It was said that his statements were not made in confidence, but openly and without apparent reserve, and on so many different occasions that the recognition must be held general and notorious, although a number of acquaintances more or less intimate with him testified that they had never heard him admit the paternity of the child. But there were some twenty distinct acts and statements of recognition. The rule therein announced was quoted with approval in Hays v. Claypool, 164 Iowa, 297, 300, 145 N. W. 874, but it was held in the latter case that it was necessary to show that the father acknowledged his parentage openly in his intercourse with his neighbors, associates and friends, whenever reference to the subject was made, without attempting to conceal it, and that ■ the father, having lived fifty-seven years after the plaintiff’s birth, no visit, communication or token of remembrance having passed between them, and as only four persons could be produced to whom declarations of parentage were ever made, the right to inherit was not established. Counsel for the plaintiff call attention to a number of Iowa cases holding the proof sufficient, and we have examined them all. These are Van Horn v. Van Horn, Alston v. Alston, Tout v. Woodin, already referred to, and Morgan v. Strand, 133 Iowa, 299, 110 N. W. 596, and Robertson v. Campbell et al., 168 Iowa, 47, 147 N. W. 301. In each of these cases save one the evidence of recognition was stronger than that, found in the record before us. The exception is the Morgan cáse, and there the evidence showed statements to several persons, and once or twice publicly in the presence of thrashing crews, a settlement with the mother in a bastardly proceeding by the payment to her of a hundred dollars, and other facts which led the court to observe that there was little doubt of a general and notorious recognition that he had a child “back in Illinois,” and that his acknowledgment of having such a child was generally understood in the neighborhood. In each of the other cases thus invoked there was testimony showing some personal recognition of'the child by the father in addition to statements of acknowledgment to others. Markey v. Markey, 108 Iowa, 373, 79 N. W. 258, is to the effect that it is not sufficient to show that plaintiff was reared at the home of the deceased in Ireland, when not elsewhere at work, until he reached the age of nineteen or twenty, when he came to this country at the expense of the deceased, and went to his house in Illinois, where he remained for two years; that the deceased furnished him with clothing and spending money, collected his wages, and introduced him as his son to some fifteen persons, five of whom testified to such fact. It was re marked that there was no evidence of any recognition while the parties resided in Ireland, nor after they separated in Illinois, nor of any communication between them. In Watson v. Richardson, 110 Iowa, 673, 80 N. W. 407, evidence showing that a putative father recognized an illigitimate child as his own in the house of its foster parents during the first year of its life, and occasionally thereafter after removal to another state, was held insufficient, two of the justices dissenting. The McCorkendale case (111 Iowa, 314, 82 N. W. 754) is quite similar to the one under consideration as to the recognition in the state where the child was born, but the right to inherit was denied. In Estate of Jones, 166 Cal. 108, 135 Pac. 288, the statute providing for reception of an illegitimate into the father’s family “and otherwise treating it as if it were a legitimate child” (p. 116), the quoted requirement was held to be met by evidence showing that the father often visited the child, contributed continuously to its support, had a paternal affection for it and acted towards it as a father would act towards a legitimate child. In an earlier case (In re Jessup, 81 Cal. 408, 21 Pac. 976, 22 Pac. 742, 1028, 6 L. R. A. 594) it was held that “public acknowledgment” requires that the father should have held the child out to his relatives, friends, acquaintances and the world as his child. The majority opinion put stress on the danger of fraudulent claims of heirship, and pointed out that while Jessup protected the mother by providing for the child for a few years, and to a very limited number of persons spoke of him as his boy, he kept him out of the circle of his own association, did not visit him- after he was two years old, and when visited by the boy later made the stays brief, making him only one present, a five-dollar watch. “In his intercourse with his own family, he denied his relationship to the boy, and with those most intimately connected with him in his business relations, and who, by reason of such connection, acquired some knowledge of what he was doing, he never admitted or communicated that he was doing anything more than ‘putting up’ for the boy.” (p. 433.) Cyc. thus states the rule, mainly deduced apparently from the Iowa decisions: “While one may by his acts be held to have sufficiently recognized a child to legitimate it, loose acts of occasional recognition, or an oc casional apparent recognition during the first years of the child’s life at the home of its foster parents have been held insufficient.” (5 Cyc. 633.) The trial court in deciding the case observed, among other things: “These visits were of short duration, a few days at a time. William Ellis never spoke or wrote directly to plaintiff as his own son. To several witnesses, however, he openly acknowledged his parentage. ... One fact is noticeable, that out of the great number of witnesses herein, old friends, acquaintances and relatives of William Ellis, not one witness testified that William Ellis ever denied his parentage of plaintiff. . . . The community generally believed him to be the father and this sentiment he must have known, yet he said no word to clear himself of the charge; when for the sake of his wife and their children he naturally might have done so. His admissions of parentage were not many but, considering the opportunities of the witnesses to meet William Ellis and the delicacy of the subject, his conduct generally, and the fact that he really was the father of plaintiff, it must be held that he generally and notoriously recognized .plaintiff as his own son.” The plaintiff invokes the rule that we can not interfere with the result reached by the trial court upon consideration of conflicting competent evidence, twelve of the long list of witnesses having testified orally, and calls attention to McLean v. McLean, 92 Kan. 326, 140 Pac. 847, where it was held that recognition is a question of fact, and where it - was said in the* opinion, speaking of paternity and recognition: “These are questions of fact for the determination of the jury under proper instructions as to what constitutes a general and notorious recognition of the relation of father and son on the part of the father.” (p. 329.) Again: “It is only for us to determine whether there was sufficient evidence to sustain their verdict and to justify the approval thereof by the court.” (p. 331.) It has ateo been ruled that when there is some evidence fairly supporting the conclusion of the trial court the result will not be disturbed, although apparently against the weight of the evidence. (Cheney v. Hovey, 56 Kan. 637, 44 Pac. 605.) When, however, the question is presented on appeal without oral testimony, and practically as it was in the court below, the conclusion of the trial court does not relieve us of exercising our own judgment.. (Mathewson v. Campbell, 91 Kan. 625, 138 Pac. 637.) It has also been held that when all of the evidence as to the controverted points is in writing it may be examined independently of the prior adjudication of the trial court. (Bartels v. School District, 89 Kan. 283, 237, 131 Pac. 579.) Upon the question of recognition, and especially upon the affirmative of this question, almost the entire evidence was by deposition, said to constitute 328 typewritten pages. Under these circumstances the question of general and notorious recognition becomes one proper to be reviewed and determined by this court. In a geographical sense there was neither general nor open recognition in Indiana or in Kansas during the entire residence in either of those states, with the exception of the admission to one intimate friend in Indiana. While the acts and declarations of the decedent upon his visits to the old neighborhood amounted to a recognition, such recognition appears to have been restricted to a meager number of old neighbors and associates and not to have been by any means as open and widespread as his acquaintance in the vicinity. Having, a few month's after the birth of the plaintiff, married a cousin of his mother, and having resided out of the state for a generation of time, yet his wife and children claimed to be without knowledge of the plaintiff’s paternity. It is significant that the intimate business acquaintances of the decedent in Kansas had never heard of such a claim, and that William Ellis never at any time, by any communication, provision or present, expressed to the plaintiff any sort of care, solicitude or recognition. Laying aside all definitions and taking the words “general” and “notorious” in their natural signification, it is quite plain that there was no such recognition in Indiana or in Kansas, and that while the reputation of paternity was general in the old neighborhood in Kentucky its recognition was not open and notorious nor sufficiently general to meet statutory requirements. The right of such unfortunate persons to inherit at all is a matter of the humaneness of modem legislation, and while, when the facts justify, the right is to be upheld regardless of the regrettable consequences to others concerned, still when a man at the close of a long life leaves a wife and children and something for a rainy day, such family and such competency are not to be shadowed and depleted by one claiming sonship and heirship unless established with that satisfactory clearness intended by the legislature as evidenced by its language chosen to prescribe the degree of proof required. Such required showing was not made, and the judgment is reversed with directions to enter judgment for the defendants.	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The opinion of the court was delivered by Marshall, J.: In this action the plaintiffs seek to reform a contract for the purchase of real property and to recover money paid on the purchase price. Judgment was rendered in favor 'of the defendant on a demurrer to the plaintiffs’ evidence. . The plaintiffs appeal. September 29, 1909, the plaintiffs and the defendant signed a simple written contract for the purchase of real property, by which the plaintiffs were to pay the defendant $45 per acre for 200 acres of land. The first $1000 was paid as provided in the contract. Semiannual interest at six per cent was to be paid on the remainder of the purchase price. The plaintiffs went into possession of the land. Later the defendant caused a survey to be made, which revealed the fact that there were 194.52 acres in the tract sold. A new contract was drawn to correct the statement concerning the number of acres sold. By the-terms of the new contract time was made the essence of the contract, and provision was made for forfeiture in' case of nonfulfillment of the contract by the plaintiffs. The plaintiffs allege that these provisions were fraudulently inserted in the new contract. The plaintiffs defaulted in the payment of interest and in the payment of taxes on the' land. After default in the first interest payment, in December, 1910, the defendant and Philip Wensler had a conversation, in which Wensler told the defendant that he could not then pay all the interest due. The defendant requested additional security for the interest. This was refused. Wensler was then told by the defendant that if he could not “pay it all, unless you give me a mortgage on your stock and wheat crop, you will have to move.” Wensler testified that he supposed Mr. Tilke would be more than glad to receive the payments; that he would have been “willing to have remained on it and tried to have paid it out if he had let me stay”; and that they left because they were told to leave by the defendant. .Viola Wensler testified that in February, 1911, the defendant came to the farm while the men were away and told her that “we had his land and we had n’t paid him his money, and we had to get out, and I told him, yes, and he had our thousand dollars, too.” March 24, 1911, before the second installment of interest became due, the plaintiffs'vacated the premises while the defendant, Tilke was in Texas, and went upon other land rented in February by them. There was some evidence that the plaintiffs had other reasons for leaving besides being ordered off the land. On cross-examination Phillip Wensler said, “I made up my mind that it was n’t hardly worth keeping,” and “I saw at that time that I had got stung good and proper.” When the plaintiffs left the premises they left 30 acres of wheat growing thereon, which was harvested by the defendant, and from which he received 289 bushels of wheat. The plaintiffs contend that they should have returned to them a portion of the $1000 paid by them, and the proceeds of the crop of wheat left by them growing on the premises. They argue that the second contract was procured by the fraud of the defendant’s agent, that it is therefore not binding, and that their rights should be determined under the first contract. The first contract did not provide for forfeiture nor make time the essence of the contract. The defendant contends that the plaintiffs voluntarily signed the second contract, that no fraud was practiced on them, that the second contract is substantially the same as the first, and that they voluntarily abandoned the contract and left the premises. 1. Did the plaintiffs voluntarily abandon-the land and their contract for the purchase of the same ? If they did, the changes made in'the contract at the time the second contract was signed are immaterial. The evidence clearly shows that the option of complying with the contract was always with the plaintiffs; that the defendant was ready at all times to receive his payments and complete the contract; but that upon the plaintiffs’ failure to comply with their contract the defendant insisted on having possession of the premises. The plaintiffs failed to pay the interest, to pay the taxes on the land, and moved away on the request of the defendant that they pay the interest or move off. This shows a voluntary abandonment of the land and of the contract on their part. In Hillyard v. Banchor, 85 Kan. 516, 118 Pac. 67, this court . said: “It is a general rule that a purchaser of land who has made an advance payment and then failed to fulfill his contract without default on the part of the vendor can not recover the amount so paid.” (Syl. ¶4.) The contract in that case contained no express provision of forfeiture. This court there quoted from Ketchum v. Evertson, 13 Johns. (N. Y.) 358, and from Hansbrough v. Peck, 72 U. S. 497, 506, 18 L. Ed. 520, language which conclusively shows that the plaintiffs in this case can not recover under their pleadings and the evidence introduced by them. (McAlpine v. Reichenaker, 56 Kan. 100, 42 Pac. 339; Roberts v. Yaw, 62 Kan. 43, 61 Pac. 409; Nason v. Patten, 88 Kan. 472, 129 Pac. 138; Long v. Clark, 90 Kan. 535, 135 Pac. 673.) 2. The plaintiffs contend that they are entitled to an accounting and reimbursement for the wheat crop left on the land when they moved away. The defendant and the plaintiffs were not landlord and tenants; they were vendor and purchasers. In 39 Cyc. 1627, under the title “Vendor and Purchaser,” this language is found: “As to the ownership of crops subsequently grown the relation of a vendor and a purchaser in possession under a contract of sale is said to be analogous to that of landlord and tenant.” In 24 Cyc. 1071, under the title “Landlord and Tenant,” we find this: “Where a tenant before the expiration of his term surrenders to the landlord, or by breach of condition forfeits his lease, and the landlord reenters, the latter is entitled to the growing crops upon the land, and no right or title therein remains in the tenant.” In 1 Tiffany or Real Property, § 56, it is stated that a lessee has no right to the annual crops if he himself terminates the tenancy. (See, also, § 224.) There is nothing contrary to this principle in Story v. Lang, 87 Kan. 727, 731, 125 Pac. 72, cited by the plaintiffs. The plaintiffs in the present action abandoned their contract and terminated their interest in the land, and were not entitled to the crops growing on the lands when they left. This is not an action on the part of the defendant to enforce a forfeiture under the provisions of the last contract. It is an action by the plaintiffs to recover the money paid by them after they had failed to comply with the terms of their contract; be that contract either the first or second one signed. They can not recover under either. The judgment is affirmed.	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The opinion of the court was delivered by Dawson, J.: On March 1, 1913, A. B. Mollohan shipped eighty steers in three carloads from Belvidere to Peabody over the defendant’s railroad under the usual shipper’s contract on which was noted in writing the words “Wichita Privilege.” These words meant that the shipper would have the privilege of stopping the cattle in Wichita for the purpose of testing the market and of terminating their journey at that point if he decided to sell the cattle there, and if the market was unsatisfactory the shipment should continue to the final destina tion set down in the shipper’s contract. In addition to this notation on the billing, the plaintiff notified the conductor of the train in which the cattle were shipped that he desired the cattle unloaded at Wichita, and he went to Wichita on a passenger train to arrange feed and water for their reception. The cattle were not unloaded at Wichita but dispatched directly through to Peabody, arriving at a late hour on Saturday night, where plaintiff, expecting to receive them at Wichita, had made no provision to receive them or provide feecl. The cattle were negligently unloaded, being jammed in the chute and piled up and bruised. By long-distance telephone from Wichita the plaintiff managed to get his cattle taken to a nearby lot; but as there was no opportunity to have them returned to Wichita in time for market before the following Tuesday the plaintiff gave up that purpose and kept the cattle and brought this action for damages. The damages which occurred in the unloading of the cattle at Peabody were eliminated by the district court because the plaintiff had neglected to give notice to the railroad company in writing before the cattle were removed from Peabody station. Such was one of the stipulations of the shipper’s contract. The appellee complains of this, but brings no cross-appeal. Moreover, the decision of the district court on that point was correct. (Railway Co. v. Theis, 96 Kan. 494, 152 Pac. 619.) This left as the sole ground of damages the failure of the railroad company to stop the cattle at Wichita in accordance with the special arrangement for the “Wichita Privilege,” and in accordance with plaintiff’s request to the conductor of the freight train. To meet this issue, the defendant answered: “That at the time the live stock mentioned and described in plaintiff’s petition was shipped over the line of defendant’s railway, the said defendant railway had on file with the Public Utilities Commission of the State of Kansas certain rules governing live stock contracts, and also general instructions concerning the privilege of markets; said circular having also been filed with the Interstate Commerce Commission and known as I. C. C. No. 6084, same being indorsed as Santa Pe System Circular No. 2213-A. That said circular was and is a part of Santa Pe Railway tariffs, both state and interstate, and contains all the rules in force at the time the shipment involved moved, concerning the privilege of markets and rules governing same; said circular and tariffs having been duly published by the defendant and placed on file, not only with said Public Utilities Commission of the State of Kansas, with its consent and approval, but also posted in defendant’s several stations in said state. “With respect to stoppage of live stock at Wichita, the said circular reads: “ ‘WICHITA, KAN. “ ‘Where through rates are published on Live Stock to Chicago, 111., St. Louis, Mo., East St. Louis, 111., East Ft. Madison, 111., Rock Island, 111., Kansas City, Mo., St. Joseph, Mo., Omaha and South Omaha, Neb., and where Wichita, Kan. (see Note), is in a direct line of transit between initial point of shipment and the above destinations, the privilege of stopping in transit at Wichita, Kan., for the purpose of permitting shippers to avail themselves of the market at that point may be allowed, subject to the following rules: “ ‘Note. — Wichita, Kan., will be considered in direct line of transit where Hutchinson or Little River, Kan., are in direct line of transit.’ . . . “Defendant further avers that said rule and regulation above set out was in full force and effect at the time plaintiff’s shipment of cattle moved over the defendant’s line, and that the defendant had no authority to permit said live stock to have the privilege of the market at Wichita, and to have done so would have been in violation of the Public Utilities Law of the State of Kansas, making the defendant railway company subject to prosecution for penalties under the Public Utilities Act of this State.” From a judgment for plaintiff the defendant appeals, and its assignment of error is chiefly directed to questions pertaining to the-defense just recited. The tariffs filed with the public utilities commission were excluded from the evidence and the following instruction asked by the defendant was refused: “The jury is further instructed that under and by virtue of Chapter 238 of the Session Laws of Kansas for 1911, commonly known as the ‘Public Utilities Act,’ a railroad company operating in this state is required to file with the Board of Public Utilities schedules of its rates on freight, livestock, etc., with all privileges, such as unloading in transit, stop-overs, etc., and that to deviate from said schedule is discriminatory and is contrary to law. “If you shall find from the evidence, therefore, that said schedules were duly and properly filed with said Interstate Commerce Commission and said Board of Public Utilities of the State of Kansas, and that said schedules did not permit cattle shipments originating at Belvidere, Kansas, and terminating at Peabody, Kansas, to be unloaded at Wichita, Kansas, while in transit, then I instruct you that the failure of said defendant to so unload said cattle at Wichita would not be an act of negligence or violation of contract on the part of said defendant, but that said contract in that regard would not be enforcible against said defendant, and said plaintiff cannot recover anything for said failure to so unload said cattle.” The district court gave an instruction which in effect recognized the validity of the “Wichita Privilege” and its incidents'. Upon the correctness of this, the judgment depends. In recent years the whole drift of state and federal legislation has been directed to stamp out all manner of special privileges heretofore extended by railroads to favored shippers. By acts of our own legislature all such practices are forbidden under drastic penalties. Among the provisions of our statutes to prevent this vice, it is required that all tariffs pertaining to intrastate railway carriage shall be filed with the public utilities commission, and the manifest purpose of this is that all shippers shall enjoy the same rates for the same services under similar conditions; and that no special service or privilege shall be extended to one shipper which is not open to all; and to that end wherever unusual privileges are extended the details and tariff charges pertaining thereto must be filed with the public utilities commission, and all these rates, services, privileges, etc., are subject to amendment, modification, approval or disapproval of the commission. A full discussion of this subject and of the pertinent statutes will be found in Railroad Co. v. Utilities Commission, 95 Kan. 604, 148 Pac. 667, and The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544. While the rates between Belvidere and Wichita, Belvidere and Peabody, and Wichita and Peabody are not before us, we are bound to presume that the rate under which the plaintiff’s cattle were shipped to Peabody was the rate lawfully published and filed with the public utilities commission. No rate was filed with the commission covering cattle transportation between Belvidere and Peabody with the “Wichita Privilege.” The rates on file covered both state and interstate transportation, but that is of no consequence here, although this is a common and commendable practice since it tends to simplify the inherently complex subject of railroad rates and tariffs. The tariffs specified the conditions under which the “Wichita Privilege” would be accorded. By logic as well as law, shipments which did not move along the routes to the well-known markets named in the officially approved tariffs could not lawfully be given this privilege. Nor can there be any doubt that the right to stop a shipment of cattle in transit to test an intermediate market is a valuable privilege and does amount to an advantage which ordinary shippers of cattle from Belvidere to Peabody do not enjoy. It might be urged that such privilege is open to all shippers from Belvidere to Peabody. That can not be since no tariffs to that effect are on file with the utilities commission. Some federal decisions are in point. The case of Chicago and Alton Railroad Co. v. Kirby, 225 U. S. 155, 56 L. Ed. 1033, is instructive. The supreme court of Illinois had upheld a judgment in favor of a shipper who had sustained damages from the railroad’s breach of a special contract to transport a carload of high-grade horses from Springfield, 111., to New York City. The special contract stipulated that the carrier would deliver the car at Joliet, 111., in time to connect with a “horse special” over the Michigan Central and connecting lines to New York. The supreme court of the United States reversed the Illinois court, holding that since the horses had been shipped at the regularly published rates, which did not provide for special privileges nor for expedited service or transportation on a particular train, and since Kirby was not required to pay any higher rate for the promised special service, the special contract and the privilege were violative of the interstate commerce act. An analogous case was Engemoen v. Chicago, St. P. M. & O. Ry. Co., 210 Fed. 896, where a contract by an interstate carrier to transport live stock to their destination within a limited time was void, unless authorized or provided by its published tariffs. Section 7174 of the General Statutes of 1909 requires that all schedules of rates be filed with the public utilities commission. Sections 7178 and 7181 forbid any departure from the regular rates and make it unlawful for any railroad company “to grant any special privileges to any person, firm or corporation, either in the way of a preference in furnishing cars, side-track facilities, sites for elevators, mills, or warehouses or any other form of preference, privilege or discrimination.” Section 7214 provides that “all concession of rates, drawbacks and contracts for special rates shall be open to and allowed all persons, companies and corporations alike.” Section 7223 subjects the carrier to a possible fine of $5000 for each violation of the foregoing provisions of the railroad act. ■ To the foregoing has been added the public utilities act of 1911 '(Laws 1911, ch-. 238), in which the legislature descended to' great- particularity touching the necessity that all rates be published and' filed,' ■ and that the established rates for like services be observed, and all preferential or discriminatory rates, service and the like are forbidden, under appropriate penalties. This abridgement of the railroad and utilities acts closely paraphrases sections 2, 3 and 6 of the interstate commerce act. (24 U. S. Stat. at Large, ch. 104, p. 379, and amendments, 4 U. S. Comp. Stat. of 1913, p. 3812, 3 Fed. Stat. Ann. p. 813, Fed. Stat. Ann., Supplement of 1914, p. 639; 1 Drinker, The Interstate Commerce Act, p. 6; Fuller, Interstate Commerce, p. 178.) (See, also, Note on right of carrier to discriminate with respect to special or unusual service in 12 L. R. A., n. s., 506.) In view of this, it seems imperative to hold that the “Wichita Privilege” was a special privilege which had been promised the plaintiff, and as such it was illegal; and the failure to accord the promised privilege at Wichita can not be the basis of an action for damages. .This necessitates a reversal of this case, with instructions to set aside the judgment and to enter judgment for defendant. It is so ordered.	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The opinion of the court was delivered by Porter, J.: Plaintiff had two horses killed by - lightning which he alleged was communicated to them by a telephone wire negligently maintained by defendant in a public highway. He recovered judgment for the value of the horses, and defendant appeals. The plaintiff is an itinerant horse trader. On May 5, 1913, he was traveling with his family in a covered wagon from Cherryvale to the northern part of the state, and while passing through Franklin county, stopped at the side of a public road for rest and dinner. He had four horses, which he turned out to graze along the highway, having them hobbled to prevent their getting beyond control. At the west side of the public road, and next to a hedge, the defendant maintained a telephone line of one wire, which sagged to within about four feet of the ground. While plaintiff’s horses were grazing at the side of the road, a storm came up and the horses went close to the hedge for shelter. Two of them were standing under the sagging wire and were killed by a stroke of lightning. Plaintiff testified that the horses fell at the instant of the flash, and that the lightning first struck a telephone pole 150 feet from where the animals were and was conveyed to them from the telephone wire. He admitted on cross-examination that this was his conclusion from the circumstances; that immediately after the storm he discovered fresh splinters and pieces of the pole lying on the ground. One defense pleaded in the answer was that the hprses were running at large on the public highway, contrary to the herd law which it is admitted was in force in Franklin county. The principal contention is, that no negligence was shown on the part of defendant which was the proximate cause of the plaintiff’s loss. These defenses were raised by demurrers to the petition and to the evidence, and by a motion for a new trial. Wholly apart from the question whether plaintiff’s horses were running at large in violation of the statute, we think the judgment can not be permitted to stand. Manifestly, the fact that defendant is a corporation has nothing to do with the question of its liability for the injury. If the wire through which the stroke of lightning was transmitted to the horses had been a private telephone wire maintained at the roadside by a farmer, or had been part of his wire fence along the highway, his liability for plaintiff’s loss would be determined upon precisely the same legal principles. Telephone and telegraph wires carry very light voltage and can ordinarily be handled with as little danger as a fence wire. Either may furnish, as may water pipes, gas mains, etc., a conductor for lightning; but before the plaintiff can recover he must show some negligence of the defendant which was the proximate cause of his loss. The telephone wire was not in itself dangerous to any person using the highway for ordinary purposes of travel, because it was maintained at the side of the road next the hedge, and although allowed to sag close to the ground it interfered in no way with the traveled portion of the highway. But conceding that it was negligence to maintain the wire so close to the ground, still nothing is more firmly settled in the law of negligence than the principle that to be the proximate cause of an injury the accident or happening of the injury must be a probable or natural consequence of the negligent act. Stated in another way, the negligent act is not the proximate cause unless, under all the circumstances of the case, the injury or accident is one which might reasonably have been anticipated by a person of ordinary foresight and prudence. “While one is responsible for such consequences of his fault as are natural and probable, and might therefore be foreseen by ordinary forecast, if his fault happened, to concur with something extraordinary and therefore not likely to be foreseen, he will not be answerable for the extraordinary result.” (Railway Co. v. Columbia, 65 Kan. 390, 398, 69 Pac. 338.) Where the alleged negligence of defendant merely furnishes a condition or gives rise to an occasion by which the injury is made possible, the defendant’s negligence is regarded as the remote and not the proximate cause. (Railway Co. v. Columbia, supra.) The law makes every person liable for such results of his negligence as ought reasonably to have been foreseen or anticipated by the exercise of ordinary prudence. Two comparatively recent cases illustrate the application of these principles. In Gas Co. v. Carter, 65 Kan. 565, 70 Pac. 635, gas had been negligently allowed to escape into a cellar and from some unknown cause exploded. It was held that the explosion was a probable and natural consequence of permitting large quantities of a highly explosive agency to accumulate in a confined place, and the gas company’s negligence in permitting this was held to be the proximate cause of the accident without any evidence showing how the gas became ignited. In the Dabney case (Gas Co. v. Dabney, 79 Kan. 820, 101 Pac. 488), the negligence was in permitting natural gas to escape from a well, into the open air in the nighttime. An explosion occurred, causing damage, but there was no evidence showing how the gas became ignited. It was said in the opinion that lightning might strike the well and ignite the gas, or some careless person might strike a match near it and cause an explosion, or fire might by other acci dental means be brought in connection with the gas, but in the usual and ordinary course of things none of these consequences would reasonably be expected to occur, and the negligence in. permitting the gas to escape into the open air was held not to be the proximate cause of the explosion. The principle on which the case of Eberhardt v. Telephone Co., 91 Kan, 763, 139, Pac. 416, was decided applies to the case at bar. Plaintiff' was injured by being thrown from a wagon when a team of mules ran away and the wagon struck a guy wire which projected diagonally for a distance of four feet • into a public highway but did not' extend to that portion of the highway graded and used, for travel. Independent qf. whether the telephone company was negligent in maintaining the, guy wire at the side of the road, it was held that this was not the proximate cause of. plaintiff’s injury. In the. opinion it. was said:. “The party placing the, wire four feet and fo,ur inches from the pole in the grassy embankment north of the traveled portion of the road can not be held to have foreseen that a team might become frightened twenty rods east thereof’and run upon the embankment. Had' the automobile not passed; had it'not scared the team, had'they not pulled out of the road in spite of. the driver’s efforts to keep them in it, no harm would have come from the wire, and to hold the company placing it. there liable, would be to charge-it with the duty to foresee all these most uncommon and unlooked- for conditions,” (p. 765.) • The telephone wire in the present case was no more dangerous than was the guy wire in that,, case. Had n,ot the plaintiff turned his horses out to graze on the public road at that particular time and place; had not the storm occurred then; had the horses happened to seek shelter at the opposite side of the road; had-not lightning struck when and where it did, the telephone wire Would not have harmed the animals. As it occurred the loss sustained by the plaintiff required the conjunction of conditions and circumstances of an extraordinary nature, which it is unreasonable to say a person of ordinary prudence and foresight should have anticipated. The judgment is reversed and the cause remanded with direction to enter judgment for the defendant.	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The opinion of the court was delivered by Burch, J.: The action was one for damages for malicious prosecution. The plaintiff recovered and the defendant appeals. The defendant contends that probable cause for the prosecution was established by the evidence. No special findings of fact were requested. The only index to the jury’s view of the facts is the general verdict. This verdict brings to the plaintiff’s aid every fact and every inference of fact favorable to him which the testimony sustains. The defendant’s narrative of the things relied on as constituting probable cause was not conceded to be true. ■ On the other hand, the plaintiff’s account of what happened leading up to the prosecution was quite incompatible with that of the defendant, and the explanation of the verdict is that the jury believed the plaintiff. It is said that the defense of advice of the county attorney was established. Here again it is to be assumed that the jury disbelieved the story which the defendant told the county attorney. The advice of the county attorney on a state of facts intentionally magnified or fabricated would not be a defense. Besides this, accepting the story which the defendant told the county attorney, he omitted to inform the county attorney of a number of material facts which if mentioned would have changed the course of subsequent events. There was abundant evidence to sustain the finding of malice included in the general verdict. The instructions to the jury contained the following: “I pass now to the defense in this case. There are several items set up by way of defense. The defendant Diven claims, first, that there was probable cause and has given you his version of the facts. I have undertaken to group these facts as given by the plaintiff when instructing you touching probable cause, and I think I can say no* more.” Through a typographical error the word “plaintiff” was inserted in the instruction instead of the word “defendant.” This is perfectly manifest and was perfectly manifest to the jury because the court had not grouped the facts given by the plaintiff when instructing on the subject of probable cause but had grouped the facts given by the defendant. Another criticism of the court’s instructions is unwarranted because a single expression is seized upon, dissociated from the context, which made the subject under discussion plain. The instructions of the court were full, clear, correct, and phrased in a way to enable the jury to apply them to the evidence. The evidence was abundant to support the verdict and the judgment is affirmed.	[ -96, -20, -19, -67, 56, 96, 58, -4, 65, -127, -78, -13, 109, -61, 25, 43, -78, 61, 84, 104, 84, -77, 23, -61, -10, -109, 114, -44, -75, -49, -26, -34, 77, -16, -62, -43, 102, 74, -59, 82, -118, -122, -71, 75, 65, 90, 48, 123, 118, 15, 53, -97, -13, 42, 28, -53, 105, 40, 74, -67, -15, -79, -118, 15, 73, 0, -77, 50, -114, 3, 88, 44, -112, 49, -127, -8, 99, -106, -126, -12, 77, -119, -116, 34, 102, 33, 109, -32, -24, -103, 39, 119, 14, -89, 24, 9, -55, 97, -73, -103, 116, 48, -121, -18, -27, 84, 31, 108, 11, -57, -42, -79, -49, 100, 26, 106, -17, -125, 16, 96, -51, -94, 92, -59, 88, -5, -98, -106 ]
The opinion of the court was delivered by Marshall, J.: This is an action for damages for personal injury. The plaintiff recovered judgment and the defendant appeals. The action arises out of the same accident as that described in Stocks v. Bridge Co., 94 Kan. 604, 146 Pac. 1178. 1. The facts as now presented differ a little from those presented in that case. The defendant operated a bridge across the Missouri river at Leavenworth. Near the Kansas side there was a draw span in the bridge, which opened to permit the passage of boats. At the time of the accident, a steamboat pushing a barge loaded with stone was attempting to pass through the bridge. The plaintiff with others was employed to open it. This was done by means of levers and operating keys, which turned the draw span. When the bridge was open about half-way, at an angle of forty-five degrees, the defendant’s foreman, who was stationed on the bank of the river, signaled the boat to pass through. The boat started to do so, when the foreman ordered the men to close the bridge, This they started to do. • While passing through the boat began to drift. The foreman then signaled to open the draw. This signal came too late. The boat hit one end of the draw, causing the keys and levers to revolve rapidly and to strike the plaintiff, inflicting the injury complained of. The defendant contends that the finding of negligence was not supported by pleading or proof. One of the allegations of negligence is that the bridge was not sufficiently open, when the signal was given to the boat, to permit it to pass through. The defendant argues that it is not alleged that before the boat got fully through the defendant prematurely began closing the draw span. Was it necessary that this be alleged? The allegation is that the draw-span was not sufficiently open, when the signal was given to the boat, to permit it to pass through. The evidence shows that the boat could not get through, and that the foreman ordered the men to open the draw wider to let the boat through. Why open the draw wider? There is only one answer. That is that the bridge was not sufficiently open to let the boat pass through. This evidence tends to prove the specific act of negligence alleged in the petition. The failure to allege that before the boat got fully through the draw span the defendant prematurely began closing it is immaterial.- Sufficient negligence was alleged, and the evidence tended to prove that negligence. 2. It is argued that the negligence alleged was not the proximate cause of the injury. It is necessary that the negligence alleged be proved, and that it be the proximate cause of the injury. The jury answered questions, among others, as follows: “What negligence of the defendant do you find was the cause of the injury to the plaintiff? A. Bridge was not sufficiently open. “Did the striking of the draw span by the boat cause the lever which plaintiff was working with to revolve rapidly and strike the plaintiff? A. It did and the rapid revolution of the lever was the cause of the injury to the plaintiff.” The findings of the jury answer the defendant’s argument. 3. The court instructed the jury concerning dangerous employment. Of this the defendant complains, and argues that these instructions were erroneous for the reason that they did not apply to the facts shown by the evidence. Before the accident that resulted in the injury to the plaintiff the work of opening the draw did not appear to be dangerous. It was a railroad and wagon bridge. The weight of the span was necessarily great. If any accident or mishap occurred in the opening of the span the work necessarily immediately became highly dangerous. The accident out of which this action grew demonstrated that fact. Under these circumstances it was not prejudicial error for the court to give these instructions to the jury. The judgment is affirmed.	[ -16, 122, -80, -83, 90, -24, 42, -102, 81, -39, -91, 115, -115, -45, 1, 103, -9, -3, -15, 35, -42, -93, 23, -102, -46, -9, -79, -57, -71, 122, -28, 87, 76, 48, 10, -107, -26, -54, -59, -36, -50, 21, 24, -23, -39, 88, 48, 123, 70, 71, 49, -100, -13, 42, 24, -61, -83, 44, -21, -67, -32, 56, -56, 5, 93, 16, 49, 6, -100, 71, -40, 60, -48, -79, 9, -68, 114, -94, -61, -11, 97, -117, 8, 98, 98, 33, 21, -53, -68, -88, 38, -38, -115, -89, -106, 8, 75, 33, -105, -35, 115, 16, 6, 122, -2, -116, 29, 108, 3, -117, -78, -13, -17, 46, -106, 35, -53, -107, 54, 112, -58, -88, 92, 5, 18, 27, -113, -66 ]
The opinion of the court was delivered by PORTER, J.: This is an appeal from a judgment against defendant for $100 penalty for failure to release a mortgage on real estate and for $50 attorney’s fees in the action. The real estate covered by the mortgage consists of two residence lots in the city of Coffeyville which belonged formerly to J. W. and Mary Blount, and upon which the defendant at different times made building loans. The first of these loans, which covered but one of the lots, was made in 1898 and was paid at maturity. On March 29, 1905, the defendant made another loan covering both lots, which was paid in April, 1913. Subsequently, on October 27, 1913, J. W. and Mary Blount conveyed the property to the plaintiff, who is their son. The petition alleged that ,on October 28, 1913, the plaintiff, through his attorney, sent the defendant a registered letter requesting that the mortgage made in March, 1905, be released of record, but that defendant had failed to comply with the request within thirty days. The petition prayed for the statutory penalty and attorney’s fees. The answer contained a general denial, but alleged that the mortgage referred to in the petition was given to secure a loan made upon the written application of J. W. and Mary Blount in which they agreed as part of the consideration of the loan that in case the mortgage was paid before their stock in the association matured, they would pay for filing the release of the mortgage, and that in fact the mortgage was paid before the maturity of their stock. The answer also set out a copy of a second letter received by the defendant from plaintiff’s attorney, dated November 8, 1913, which it was alleged led the defendant to understand and believe that the only mortgage plaintiff desired released was the one made in 1898, and in compliance with the request as defendant understood it a release had been at once executed and forwarded by mail to plaintiff, which he accepted without any request that defendant pay for recording the same. At the trial plaintiff admitted that when the indebtedness secured by the mortgage was pai d in April, 1913, defendant executed and delivered to his father a release, which his father handed to him October 27, 1913, when the title was conveyed to him, and that no demand was made on defendant to record a release until October 28, 1913. The letter of that date, after requesting information concerning an abstract of title to the property, concludes as follows: “I also notice that the mortgage made by you on March 12th, 1898, . . . in the sum of four hundred dollars on lot six block four . . . has not been released of record although the same has been paid. Please have the same released of record. I also notice that your mortgage under date of March 29th, 1905, given by J. W. Blount and wife Mary A. Blount in the sum of four hundred dollars covering lots five and six, block four, Gaverick’s addition to the city of Coffeyville, Kansas, has not been released of record. Please have this mortgage released of record.” On October 30 the defendant replied with a letter which, so far as it refers to the release, reads: “In reply beg to advise that these mortgages were released by this association and the original mortgage and notes were sent out at the time the loan was paid, all the mortgages referred to in your letter have been released by this association and we presume the borrower has failed to record them. Under our contract for loan the cost of recording releases is borne by the borrower but we would be glad to execute such releases as are necessary to straighten their title upon receipt of the abstract for our assistance.” On November 8,1913, plaintiff’s attorney replied as follows: “I herewith enclose the abstract to lot 6 block 4 Gaverick’s Addition to Coffeyville, together with a satisfaction of mortgage to be executed by the secretary of the company in order that this abstract may be brought down to date and the title to this property cleared of record. The mortgage that toe wish released is shown on page nine of the abstract. Please handle this matter as promptly as possible and return the abstract to me. Yours truly.” (Italics ours.) Four days later defendant returned the abstract together with a release of the mortgage specifically mentioned in the last letter of plaintiff’s attorney. Soon after the expiration of thirty days from the date of the first demand plaintiff brought this action. The statute provides that when any mortgage of real property has been paid it shall be the duty of the mortgagee or his assignee within thirty days after demand’to cause satisfaction of such mortgage “to be entered of record without charge,” and the statute further provides that any mortgagee or assignee who shall refuse or neglect to do so “shall be liable in damages to such mortgagor, or his grantee or heirs in the sum of one hundred dollars, together with a reasonable attorney’s fee” (Gen. Stat. 1909, § 5202), which may be recovered in a civil action. It appears that when the borrower received the release at or about the time the mortgage was paid in April, 1913, he accepted it with no question as to any duty resting upon defendant to record it or to advance the fee for recording it. On the contrary, he kept the release until October, when he delivered it to the plaintiff along with the deed to the property. When the action was commenced plaintiff had it in his possession and according to the evidence could have recorded it at the trifling expense of thirty cents. The statute, as well as one providing a similar penalty for neglecting to release a chattel mortgage, has been declared penal. (Thomas v. Reynolds, 29 Kan. 304; Parkhurst v. National Bank, 53 Kan. 136, 35 Pac. 1116.) Being penal, it must of course be construed strictly. (27 Cyc. 1426.) This court has recognized certain conditions or limitations upon the strict and literal enforcement of its provisions. Thus, in the Parkhurst case, supra, an instruction.was approved which charged the jury that if defendant in refusing to release any of the mortgages acted in- good faith and upon an honest belief that the same had not been paid, plaintiff could not recover the penalty. In the opinion it was said: “If the mortgagee refuses to satisfy the mortgage from mere inadvertence, inattention, or indifference, the penalty may be incurred. To be relieved from the penalty, there must be a real controversy as to payment, and an honest doubt concerning the same on the part of the mortgagee.” (p. 138.) From the pleadings and the letters written by the defendant to plaintiff’s attorney, it can hardly be said that defendant was neglecting to satisfy the record through inadvertence, inattention, or indifference, or that it was not acting in good faith in the honest belief that under its contract with the borrowers its only duty in the premises was to execute and deliver to them a sufficient release, and that the expense of recording it should be borne by them. The trial court, however, at the conclusion of the evidence discharged the jury and decided as a matter of law that no defense to the action had been established. This was error which requires reversal. Moreover, there was evidence to warrant the submission to the jury of another defense raised by the answer. If the letters written by plaintiff’s attorney are read together there is at least some ground for the inference that defendant was intentionally lulled into the belief that all plaintiff desired -was the execution of a release of the old mortgage. The statute of limitations barred an action to recover a penalty for failure to record that release, and plain tiff first obtained it and was satisfied to pay for recording it, and immediately sued to recover a penalty for failure to record the one to which the letter of November 8 makes no reference. It is urged by the plaintiff that if such a contract existed as alleged in the answer it was necessarily void for the reason that it would conflict with the express conditions of the statute which require the release to be made by the mortgagee or his assignee “without charge.” There is, however, nothing in the statute which prevents the parties from entering into a valid contract that upon satisfaction of the debt the mortgagee shall execute and deliver a release which the mortgagor shall be at the expense of recording. The evil sought to be remedied was obviously the neglect and refusal of mortgagees and their assignees to release mortgages which had been satisfied. While enacting the requirement the legislature also provided that the release should be without charge to the mortgagor, but it is not conceivable that the legislature would have passed the law and imposed the penalty for the failure alone to pay the slight charge of recording a release promptly executed and delivered. But in any view of the statute we can see no good reason why the parties may not bind themselves by an agreement such as the one relied upon here. Complaint is made of the action of the court in refusing to submit to the jury the question of the amount of attorney’s fees. Since a new trial must be ordered it may be said the complaint is well founded, and it has been held error to refuse to submit that question to the jury. (Gray v. Railway Co., 89 Kan. 325, 131 Pac. 555.) The judgment is reversed and a new trial ordered.	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Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent Jeffrey Lynn Baxter, an attorney admitted to the practice of law in Kansas. The complaint filed in case No. A6193 was heard before a panel of the Kansas Board for Discipline of Attorneys. The essential facts, as determined by the panel, and the panel's recommended discipline are not in dispute. Baxter has not filed exceptions to the amended final hearing report. Case No. A6193 The amended final hearing report stated: “2. In early 1993, Respondent was retained by Complainant, Professor William Dawes to represent him in a civil rights action against Kansas State University. Complainant paid $12,500 towards Respondent’s fee, having borrowed almost half that amount. Following mediation conducted by retired Judge Herbert Walton, the case settled. The parties agreed to split the mediator’s fee and the University agreed to pay damages and attorneys fees, although it disputed part of Respondent’s bill. When Respondent’s firm received the University’s check for the attorneys fees, the check was short approximately $6,000.00. The check was deposited in the firm account (not the trust account) and Respondent did not advise Complainant the money had arrived. From the time Respondent’s firm received the check (July 1994) until February 1995, Respondent did not explain to Complainant that the University had refused to pay $6,284.00 of the attorneys fees. In fact, Respondent did not respond to Complainant’s letter of November 1994. When Complainant wrote again in January, 1995, Respondent phoned a week later and promised to send Complainant a check. By letter dated February 9, 1995, Respondent told Complainant of his agreement to take less than he billed and asked Complainant to reduce his reimbursement, but wrote he (Respondent) would do what Complainant thought right. Complainant wrote back that he would not agree to reduce his reimbursement and on March 6, 1995, filed a complaint with the Disciplinary Administrator's office. Respondent’s firm paid Complainant in full with interest by check dated 05-07-96 drawn on the Shook, Hardy and Bacon trust account.. ... “3. In addition to not reimbursing Complainant, Respondent failed to pay the agreed upon share of the Mediator’s fee. Respondent’s Answer states that Respondent did not know about this agreement. This payment was finally made by certified check in June 1995. “4. Professor Dawes summarized his dealings with Respondent and asked the Panel to recommend permanent disbarment. He explained that he had lost confidence in Respondent and his film, and isn’t sure where to look for counsel now. “5. Respondent testified about the nature of his practice, his civic activities, and prior complaints that were resolved without discipline. He explained that in the spring of 1994 he suffered from nervous exhaustion and had to be transported by ambulance to the hospital. Shortly thereafter, he was diagnosed by his psychologist, Dr.'SwaranK. Jain, as suffering from major depression. Dr. Jain testified that Respondent suffered from stress, nervousness, anxiety, and exhaustion, that resulted in impairment and caused the problems with Complainant. During this time the check for attorneys fees arrived at the firm and Respondent states that he was unaware that the check was deposited in the firm’s account. Respondent received treatment for depression, but even after learning the money was wrongly in the firm account Respondent never told his senior partner that there was the serious problem of not being able to pay a client. At the hearing, Dr. Jain testified that Respondent’s mental health has improved and that the improvement has arrested the kind of ineffective behavior that Respondent demonstrated toward . Professor Dawes. Respondent now believes that his improved well being, improved organization through use of a Franklin Planner, and structural changes in his law firm (such as implementation of a written trust account policy), enable him to deal professionally with issues that arise in his practice. He has reduced his community committee involvement, he has resolved some personal issues, he has involved ALPS in reviewing the law firm’s procedures, and he attended a continuing' legal education program on handling client funds. "6. Mr. Schneeberger is a sole practitioner in Leavenworth and has known Respondent professionally and socially since 1977. He offers to supervise Respondent as part of the proposed plan of supervised program. Dr. Jain and Respondent .continue to meet although Respondent, is no longer in treatment. Dr. Jain explored with Respondent his inability to deal with Professor Dawes’ requests for information as well as his inability to ask his senior partner, Mr. Chapman, for help. “7. Respondent’s wife, Connie Baxter, testified about her own thriving business as a Mary Kay Director of a. 150 member team, and how it put pressure on Respondent to take more responsibility with their three children, and about Respondent’s numerous civic responsibilities. Mr. Chapman; Respondent’s senior law partner, testified that he knew Respondent as a teacher and coach in Leavenworth before Respondent entered law school. When questioned about Professor Dawes contacting him with concerns about the settlement check, Mr. Chapman explained that he asked Respondent about it and was satisfied with Respondent’s response that it would be handled. He supports the plan for supervised probation and will cooperate. He believes Respondent is capable and quite responsible since he has recovered from his nervous exhaustion: The firm now has regular meetings of both a Litigation Committee and a Strategic Planning Committee. On cross examination by Ms. Snyder, Mr. Chapman explained the firm’s accounting practices: The firm’s gross receipts are now scrutinized by an officer manager, but in 1994, each attorney reviewed the income from his own billings. In support of Respondent’s character, former Representative Graeber testified about Respondent’s representation of the bank in Leavenworth as well as his community involvement which could be harmed if he were publicly censured. Mr. Graeber also testified that Respondent is one of the most respected attorneys in the Leavenworth community, and that publication of discipline in this case would be Very devastating’ to Respondent’s practice.” The following pertinent findings and recommendations were made by the panel: “CONCLUSIONS OF LAW “Respondent’s conduct violates the Model Rules of Professional Conduct Sections 1.2 [Scope of Representation, 1996 Kan. Ct. R. Annot. 261], 1.3 [Diligence, 1996 Kan. Ct. R. Annot. 264], 1.4 [Communication, 1996 Kan. Ct. R. Annot. 270], 1.7 [Conflict of Interest: General Rule, 1996 Kan. Ct. R. Annot. 283], 1.15 [Safekeeping Property, 1996 Kan. Ct. R. Annot. 302], 5.3 [Responsibilities Regarding Nonlawyer Assistants, 1996 Kan. Ct. R. Annot. 337], and 8.4 [Misconduct, 1996 Kan. Ct. R. Annot. 350]. The Panel finds from clear and convincing evidence that Respondent violated MRPC 1.2 and 1.3 when he agreed in the settlement to forego more than $6,000.00 of his fee, without discussing the compromise with his client beforehand. Afterward he looked to his client for full fee payment. Respondent’s delay in communicating with his client about the fee, about the settlement check being received by the firm but deposited in the wrong account, constitutes a violation of MRPC 1.4. Respondent violated MRPC 1.7 by his intentional self-dealing adverse to his client (reducing his fee) without communicating with his client. “Clear and convincing evidence also supports the Panel’s finding that Respondent violated MRPC 1.15 in that he breached his fiduciary duty to safeguard the settlement check. Respondent was responsible to insure the check was deposited [in] the firm’s trust account. By the time the error was discovered, the firm had already spent the money on regular business expenses. Respondent shows a lack of diligence in representing Professor Dawes by repeatedly failing to respond to his client’s requests for information. “Furthermore, the Panel finds that Respondent’s actions violated MRPC 8.4 when he agreed [to] compromise his fee in the settlement, but thereafter sought the full fee from his client. Such behavior adversely reflects on Respondent’s fitness to practice law. “The Panel makes no finding of clear and convincing evidence that Respondent violated MRPC Sections 1.8 [Conflict of Interest: Prohibited Transactions, 1996 Kan. Ct. R. Annot. 287] or 1.16 [Declining or Terminating Representation, 1996 Kan. Ct. R. Annot. 310].” “RECOMMENDED DISPOSITION “The Disciplinary Administrator has requested the Panel find that Respondent violated MRPC 1.2, 1.3, 1.4, 1.7, 1.15, 5.3 and 8.4, and [recommend] to the Supreme Court that Respondent be disciplined pursuant to Rule 211(f) [1996 Kan. Ct. R. Annot. 215]. “In making its recommendations for discipline, the Panel has reviewed the ABA Standards for Imposing Lawyer Sanctions. The factors to be considered include the following: 1) whether the lawyer has violated a duty owed to the public, to the legal system or to the profession; 2) whether the lawyer acted intentionally, knowingly or negligently; 3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and 4) the existence of aggravating or mitigating factors. “The evidence shows that Respondent violated duties to. his client, Professor Dawes, and to the legal profession by failing to insure settlement proceeds were deposited in his firm’s trust account, enabling his firm to spend the money on remodeling so that Complainant did not receive the money due him until May 1996. Furthermore, Respondent agreed to accept less than his billed fee in the settlement, without consulting his client and then expected his client to pay the full fee. Repeatedly he neglected to communicate information about the case process essential to Professor Dawes being able to make decisions and feel competendy represented. “We must then turn to the ABA Standards on Aggravation and Mitigation to determine whether any factors present either increase or reduce the nature and extent of discipline to be imposed. “1. Aggravating factors. a. Prior disciplinary offenses. This is not a factor. b. Dishonest or selfish motive. The evidence shows that Respondent covered up the setdement payment despite repeated contact by Complainant. He did not gain exclusively. The firm account spent the funds. But he did not reveal the problems to his partner nor did he communicate with his client. c. Patter[n] of misconduct. This is not a factor. d. Multiple offenses. This becomes a factor by virtue of Respondent’s covering up. e. Bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency. This is not a factor. f. Submission of false evidence, false statements, or other deceptive practices during disciplinary process. This is not a factor. g. Refusal to acknowledge wrongful nature of conduct. Respondent verbalizes remorse in his testimony, but the Panel is concerned that he neglected and ignored, for over a year, the reimbursement due his client. h. Vulnerability of the victim. Complainant testified that he hired Respondent because of his expertise even though his law office was in another city. Now Complainant faces paying another lawyer to become familiar with the case. i. Substantial experience in the practice of law. Respondent is a 1986 law school graduate and admitted to practice and has sufficient experience to have been attentive to the duty to keep settlement funds in a trust account and promptly turn the money over to his client. j. Indifference to making restitution. Respondent reported to the Disciplinary Administrator’s investigator that he would borrow the money to pay the client (Complainant), but it was May 1996 before Complainant was paid. Further he compromised his attorneys fees in the settlement negotiations, without Complainant’s knowledge, and then expected Complainant to pay the full fee. k. Illegal conduct, including that involving the use of controlled substances. This is not a factor. 2. Mitigating factors. a. Absence of a prior disciplinary record. Respondent has no prior disciplinary record. b. Absence of a dishonest or selfish motive. This is not a factor. c. Personal or emotional problems if such misfortunes have contributed to violation of the code of professional responsibility. Respondent was diagnosed with and treated for depression which contributed to poor judgment in his practice. d. Timely good faith effort to make restitution or to rectify consequences of misconduct. This is not a factor. e. The present and past attitude of the attorney as shown by his cooperation during the hearing and his full and free acknowledgement of the transgressions. Beginning in March 1996, Respondent’s attitude and cooperation in the disciplinary process were exemplary. Respondent’s Answer to the written complaint was very candid and he accepted full responsibility for his transgressions. f. Inexperience in the practice of law. This is not a factor. g. Previous good character and reputation. Witnesses Schneeberger, Swaran, Chapman, and Graeber testified in support of Respondent. h. Physical disability. This is not a factor in this case. i. Mental disability or chemical dependency including alcoholism or drug abuse when (1) there is medical evidence that the Respondent is affected by a chemical dependence or mental disability; (2) the chemical dependence or mental disability caused the misconduct; (3) the Respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely. According to Dr. Jain, the Respondent suffered from major depression, which caused the problems with Complainant. According to Dr. Jain and Respondent, the Respondent’s condition is improved, and that improvement has arrested the kind of ineffective behavior that led to the problems with Complainant. Recurrence of the misconduct is unlikely, but the panel feels Respondent should be supervised and remain under the care of a psychiatrist for a two-year period of supervised probation. j. Delay in disciplinary proceedings. This is not a factor. k. Imposition of other penalties or sanctions. This is not a factor. l. Remorse. Respondent testified as to his remorse, but his conduct was to delay paying a settlement to his client for more than 20 months. m. Remoteness of prior offenses. This is not a factor. n. Any statement by the Complainant expressing satisfaction with restitution and requesting no discipline. This is not a factor. “After reviewing all of these factors, the Panel recommends [the] following: Respondent shall be suspended for a period of two years. This suspension shall be suspended for two years subject to supervised probation for two (2) years with the requirements that Respondent certify that he has at least $1 million in malpractice insurance coverage and that his partner, Edward Chapman, take responsibility for Respondent’s conduct in the practice of law. Further, since Respondent’s lack of judgment is purported to be due to his suffering from clinical depression, the Panel recommends that the Court require Respondent to be examined and assessed, at Respondent’s expense, by a psychiatrist who shall file reports with the office of the Disciplinaiy Administrator, on a quarterly basis. Respondent’s violation of any of the requirements of probation shall be sufficient basis to revoke probation. The Panel declines Respondent’s request that this matter be unpublished. “Costs should be assessed against Respondent in an amount to be certified by the Disciplinaiy Administrator.” We find there is clear and convincing evidence establishing the violations found and enumerated by the panel. We adopt the findings and recommendation of the panel as modified. It Is Therefore Ordered that imposition of discipline against respondent Jeffrey Lynn Baxter be suspended and he is placed on probation for a period of 2 years from tire date of this order. It Is Further Ordered: (1) During the probation period, respondent’s practice of law is to be supervised by Edward Chapman, who shall take responsibility for respondent’s conduct in the practice of law. (2) Respondent shall certify to the Disciplinary Administrator that respondent is covered by at least $1 million of legal malpractice insurance coverage with a $10,000 deductible. (3) Since respondent’s lack of judgment is purported to be due to his suffering from clinical depression, respondent is to be examined and assessed, at respondent’s expense, by a psychiatrist who shall file reports with the office of the Disciplinary Administrator on a quarterly basis. It Is Further Ordered that, in the event respondent fails to abide by the conditions set out herein, a show cause order shall issue to respondent, and this court shall take whatever disciplinary actions it deems just and proper, including disbarment, without further formal proceedings. It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to respondent. Davis, J., not participating.	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The opinion of the court was delivered by Lockett, J.: Defendant Robert L. Jackson was convicted of two counts of first-degree murder, one count of voluntary manslaughter, two counts of aggravated battery, one count of unlawful possession of a firearm, one count of criminal damage to property, and one count of criminal trespass. All but the misdemeanor sentences were imposed to run consecutively. Defendant appeals his convictions and sentences, claiming the trial court erred by (1) failing to instruct on self-defense; (2) failing to instruct on lesser included offenses; (3) instructing the jury on first- and second-degree murder; (4) denying a change of venue; (5) imposing an upward durational departure sentence; (6) imposing the sentence for aggravated battery; (7) imposing a consecutive sentence for unlawful possession of a firearm; and (8) sentencing him for level 8 aggravated batteiy. At approximately 12:45 a.m. on April 8, 1994, Robert Jackson left the home of Jamie Brown for Shanghi Lil’s, a nightclub in Topeka, Kansas. As Jackson left, Brown noticed Jackson had a gun. Tracy Freel and Heidi Childers, dancers at a nightclub called Teezers, went to Shanghi Lil’s to meet Childers’ boyfriend, Scott Wilson, who worked there as a bouncer. At Shanghi Lil’s, Childers and Freel were approached by Jackson, who tried to pick them up. Jackson also made comments of a sexual nature to Childers, Freel, and other women in the club. After an announcement that the club was closing, Jackson lingered at the bar and attempted to persuade Childers and Freel to leave with him. They declined. When Matt Fabry, a bouncer at the club, told Jackson it was time to leave the club because the club was closing, Jackson refused to leave. Fabry grabbed Jackson by the shoulder to escort him out and again told Jackson to leave. Jackson struck Fabry and knocked him to the floor. As Jon Stratton, a patron at the club, intervened to assist Fabry, Jackson took a black automatic pistol from his waistband and shot Fabry in the chest and arm. Fabry was unarmed. Jackson then shot Stratton in the right side. Dan Rutherford, the club’s disc jockey, jumped over a brass rail to assist Fabry. Jackson shot Rutherford twice in the face. Jackson backed out of the inner doors of the club, returned, and shot Rutherford two or three more times. Jackson then straddled the fallen Fabry and asked, “You want some more of this, motherfucker?” When Scott Wilson attempted to push Jackson out the door, Jackson started firing again. Man Eastman, a customer, attempted to escape out the door. Jackson turned and shot Eastman in the thigh. After Jackson shot Eastman, the club manager, John Iturralde, left his office in the back of the club carrying a .45 caliber handgun. After more shots were fired by Jackson, Iturralde took cover behind the bar. Iturralde testified that he never fired his gun. Wilson threw Childers to the floor to protect her, and she landed next to Jon Stratton. While on the floor, she felt a burning and stinging on her leg and saw a bruise forming across her right leg going over to her left leg and a tear in her knee. Brenda Strahm, an acquaintance of Jackson’s, heard a loud noise at her front door in the early morning hours of April 8, 1994. She opened the door and saw Jackson standing there. She let Jackson in and returned to her bedroom. Later she heard a gunshot. After Jackson fell asleep in Strahm’s kitchen, she took her children, left the house, went to a nearby service station, and called 911. The police found Jackson asleep in Strahm’s house, arrested him, and confiscated a 9 mm Taurus handgun found next to Jackson. The police also found an empty 9 mm Norinco handgun underneath Dan Rutherford’s body at the club. Seven cartridges fired from the Norinco were found at the club. A total of 21 shell casings were recovered. Hugh Kizer, a KBI firearms expert who testified at trial regarding the ballistics evidence, stated that at least 15 of the 21 spent cartridges found in the club were fired by a 9 mm Taurus pistol and 7 of the shell casings were fired by a Norinco handgun. The evidence was inconclusive as to whether the bullets and bullet fragments recovered after the incident were fired from the Norinco or the Taurus handgun. Dr. Eric Mitchell performed post mortem examinations on the three persons killed during the shooting. Jon Stratton died from a single bullet wound. The bullet which killed Stratton came from the Norinco. Matt Fabry sustained bullet wounds to the right arm, chest, and right side. A bullet fragment taken from Fabry’s body was fired by the Norinco handgun. Dan Rutherford sustained multiple wounds to his left hand, face, right arm, right armpit, as well as three wounds to the right side of his chest and wounds to his right hand and left arm. Analysis of bullets taken from Rutherford’s body indicated they had not been fired by the Norinco handgun and tests were inconclusive regarding the Taurus handgun. Prior to trial, Jackson pled to unlawful possession of a firearm. Jackson presented no evidence at trial and did not allege someone else shot the victims. Jackson was convicted of the first-degree murders of Matt Fabry and Dan Rutherford and voluntary manslaughter of Jon Stratton. He was also convicted of aggravated battery of Alan Eastman, aggravated battery of Heidi Childers, unlawful possession of a firearm, misdemeanor criminal damage to property, and criminal trespass. I. SELF-DEFENSE Jackson argues the district court erred by failing to instruct the jury on self-defense as to the shooting and deaths of Matt Fabry, Dan Rutherford, and Jon Stratton. It is the duty of the trial court to instruct the jury on self-defense so long as there is evidence tending to establish self-defense. State v. Hill, 242 Kan. 68, 78, 744 P.2d 1228 (1987); State v. Smith, 161 Kan. 230, 237, 167 P.2d 594 (1946). In order to rely on self-defense as a defense, a person must have a belief that the force used was necessary to defend himself and, also, show the existence of facts that support such a belief. State v. Childers, 222 Kan. 32, 48, 563 P.2d 999 (1977). Jackson’s claim that he was entitled to a self-defense instruction ignores the statutory requirements for giving a self-defense instruction. K.S.A. 21-3211 provides: “A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” However, K.S.A. 21-3214(3) states that the justification for using force in self-defense is not available to a person who: “Otherwise initially provokes the use of force against himself or another, unless: “(a) He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or “(b) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.” Here, it was uncontroverted that Jackson was the initial aggressor. The facts indicated that Jackson was told to leave the club more than once. After Fabry placed his hand on Jackson and asked Jackson to leave the club, Jackson struck and then shot the unarmed Fabry. After shooting Fabry, Jackson then shot Rutherford and Stratton as they came to assist Fabry. Fabry and Stratton were unarmed. Although there is evidence that Rutherford had a gun, there was no testimony that Rutherford fired the gun. Jackson, the initial aggressor, made no effort to withdraw, escape, or avoid the killings. Jackson’s claim that he was entitled to a self-defense instruction is without merit. In addition, Jackson argues that the district court erred in submitting instructions on the second-degree murders of Fabry and Rutherford as lesser included offenses of first-degree murder by failing to include the statement as to self-defense found in PIK Crim. 3d 56.03. He makes a similar argument as to the court’s instruction on voluntary manslaughter. Because we have deter mined that there was no evidence justifying a self-defense instruction, that determination is dispositive of these issues. II. LESSER INCLUDED OFFENSE Defendant next contends the trial court erred in failing to instruct the jury on involuntary manslaughter with respect to the killing of Jon Stratton. The defendant in a criminal prosecution has a statutory right to have the court instruct the jury on all lesser included offenses established by substantial evidence. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of a lesser degree of the offense charged, but whether there is substantial evidence tending to prove a lesser degree of the offense. If there is, then the question of such degree should be submitted to the jury. State v. Deavers, 252 Kan. 149,154-55, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993). There is some weighing of evidence in this analysis, but the weighing of evidence is not a retrial of the case. State v. Dixon, 252 Kan. 39, 43, 843 P.2d 182 (1992). K.S.A. 21-3404 provides in part: “Involuntary manslaughter is the unintentional killing of a human being committed: “(a) Recklessly; [or] “(c) during the commission of a lawful act in an unlawful manner.” Jackson relies on these two theories of involuntary manslaughter described in K.S.A. 21-3404, namely that the killing of Jon Stratton was (1) unintentional and reckless or (2) committed during the commission of a lawful act (self-defense) done in an unlawful manner. Because we have determined that there was no evidence justifying Jackson’s theory of self-defense, the second theory has no merit. As to the unintentional or reckless claim, Stratton was killed by a single gunshot. Was there evidence to support the assertion that the shooting of Jon Stratton was reckless and required the giving of an instruction on involuntary manslaughter? K.S.A. 21-3201(c) defines “reckless conduct” as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” Defendant’s assertion that the killing of Stratton was unintentional and reckless is based solely upon testimony of Scott Wilson. Wilson testified that after Jackson shot Fabry, Stratton ran by Wilson and Jackson was “still firing and shooting and everything.” Jackson theorizes that based upon Wilson’s testimony, Stratton may have been killed by a random shot and, to support his argument, points out that he was convicted of reckless conduct (aggravated battery) in the shooting of Heidi Childers. Wilson, however, never testified that Jackson shot randomly. Wilson stated Jackson had not changed his position while shooting. Wilson could not tell where or at what Jackson was shooting. Wilson’s testimony is not sufficiently substantial to have required the trial court to instruct on involuntary manslaughter in the killing of Stratton. Furthermore, Childers, who was shot while lying on the floor to protect herself, was not a participant in the incident as Stratton was. After Jackson shot Fabxy, Stratton came to Fabry’s aid by grabbing Jackson around the arms and chest. One witness testified that after Jackson shot Fabiy and Rutherford, Stratton started to run away from Jackson. Jackson then shot Stratton in the right side. Based upon these facts, there was insufficient evidence that the killing of Jon Stratton was unintentional or reckless and, therefore, an instruction on involuntary manslaughter was not required. III. FIRST- AND SECOND-DEGREE MURDER INSTRUCTION Jackson next argues that the court erred in instructing the jury on first- and second-degree murder. No party may assign as error the giving of an instruction unless he or she objects before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). The giving of an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict. State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995); State v. Crawford, 255 Kan. 47, Syl ¶ 5, 872 P.2d 293 (1994). Jackson did not object to the giving of these instructions at trial; therefore, the clearly erroneous standard applies. First, Jackson contends the trial court incorrectly stated the elements of first-degree murder by including malice as an element of the crime. The court’s instructions on each of the first-degree murder counts stated that to establish the charge, each of the following claims must be proved: “1. That the defendant intentionally killed [the victim]; and “2. That such killing was done maliciously, deliberately and with premeditation; and “3. That this act occurred on or about the 8th day of April 1994, in Shawnee County, Kansas.” The trial court failed to note that effective July 1, 1993, the Kansas Legislature amended the first-degree murder statute by removing the word “maliciously” from the definition of first-degree murder. L. 1992, ch. 298, § 3. The trial court mistakenly used PIK Grim. 2d 56.01 rather than PIK Crim. 3d 56.01, which reflected the legislative change. Jackson claims the instruction given was improper and misled the jury because it contained the element of malice which was not a statutory element of the crime of first-degree murder on April 8, 1994. After reviewing all the instructions, we note that the jury was instructed that to establish a charge, “each of the following claims” must be proved. The court instructed the jury that for the defendant to be guilty of first-degree murder, second-degree murder or voluntary manslaughter, the State had to prove intentional conduct and defined the terms “intentional” and “deliberately and with premeditation” in Instruction No. 15. The court defined the term “maliciously” as “willfully doing a wrongful act without just cause or excuse.” Under the circumstances, the court’s inclusion of the word “maliciously” in the definition of first-degree murder did not change the elements of the offense. Even though the court’s instruction did not conform to the statute applicable at the time of the murder, the error did not affect the rights of the defendant or misstate the law. Jackson next complains that the trial court instructed the jury that the elements of second-degree murder were (1) an intentional killing (2) not done upon a sudden quarrel or in the heat of passion. This instruction follows PIK Grim. 3d 56.03. Jackson argues that the instruction given was erroneous because K.S.A. 1993 Supp. 21-3402, which defined second-degree murder, contained no element precluding the existence of a sudden quarrel or heat of passion. Jackson asserts that by incorrectly instructing on second-degree murder, the jury was confused and misled to believe that the primary difference between first- and second-degree murder was not premeditation but whether the killing resulted from a sudden quarrel or heat of passion. He claims that this error could have resulted in the jury convicting him of first-degree murder even if premeditation was not proved. To support his argument, Jackson points to markings made on the court’s instructions during jury deliberations. On instruction 5, defining the first-degree murder of Fabry, there was a “T” placed next to the element for intentional killing but no mark next to the elements of malice, deliberation, or premeditation. On Instruction No. 6, defining second-degree murder for the killing of Fabry there was another “T” placed next to the element alleging an intentional killing, but an “F” beside the element alleging that the killing was not done upon a sudden quarrel or in the heat of passion. Jackson extrapolates from these markings that the jury believed that a sudden quarrel or heat of passion existed and, therefore, that a first- or second-degree murder conviction was improper. Jackson’s argument based upon these markings is highly speculative. First, the markings were made only on the instructions dealing with Count I (Fabry) and not on the instructions dealing with the murders of Rutherford and Stratton. Second, Jackson somehow claims that these markings represent conclusions made by the jury, when they may merely represent notations made during the course of deliberations. The proper inquiry is not speculation as to what these marks may have meant, but whether the court’s instructions given to the jury were clearly erroneous. The law is well settled that upon review of a challenged jury instruction, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error, although they may be in some small way erroneous. State v. Johnson, 255 Kan. 252, Syl. ¶ 4, 874 P.2d 623 (1994). The jury was instructed on first-degree murder, second-degree murder, and voluntary manslaughter as to each of the three murders. The Notes to PIK Crim. 3d 56.03 state that the element that the killing was not done in the heat of passion or upon a sudden quarrel should be added where there is evidence which requires an instruction on voluntary manslaughter. Apart from the inclusion of the element of malice in the first-degree murder instruction, the court’s instructions conformed with PIK. The instructions as given fairly stated the law on first- and second-degree murder and were not clearly erroneous. IV. CHANGE OF VENUE Jackson argues that the trial court erred in denying his motion for change of venue because pretrial publicity and the nature of the publicity so prejudiced the community it was impossible for him to receive a fair trial. K.S.A. 22-2616(1) provides: “In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.” The determination of whether to change venue is entrusted to the sound discretion of the trial court; its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The State is not required to produce evidence refuting that of the defendant. The defendant must show that such prejudice exists in the community and that it is reasonably certain he or she will not obtain a fair trial. State v. Shannon, 258 Kan. 425, Syl. ¶ 5, 905 P.2d 649 (1995). See State v. Butler, 257 Kan. 1043, Syl. ¶ 2, 897 P.2d 1007 (1995); State v. Lumbrera, 252 Kan. 54, Syl. ¶ 2, 845 P.2d 609 (1992); State v. Grissom, 251 Kan. 851, 927-29, 840 P.2d 1142 (1992). Indicative of whether the atmosphere is such that a defendant’s right to a fair trial would be jeopardized, courts have looked at such factors as the particular degree to which the publicity circulated throughout the community; the degree to which the publicity or that of a like nature circulated in other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised and the ease encountered in the selection of the jury; the familiarity with the publicity complained of and its resultant effect, if any, upon the prospective jurors or the trial jurors; the chanllenges exercised by the defendant in the selection of a jury, both peremptory and for cause; the connection of government officials with the release of the publicity; the severity of the offense charged; and the particular size of the area from which the venire is drawn. State v. Ruebke, 240 Kan. 493, 499-500, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987) (citing Annot., 33 A.L.R.3d 17, § 2[a]). Prior to trial, Jackson filed a motion for change of venue. Attached to the motion was a report prepared by professional consultants summarizing the results of a telephone survey of community awareness of the case. The survey population of registered voters included eligible jurors in Shawnee County who were not currently on jury service. Three hundred one respondents were drawn from the sample population. The sample included respondents from 18 to 96 years of age. Ninety-two percent of the respondents were white and approximately seven percent were minorities. The survey which addressed the public’s awareness of the incident and the impact of that awareness on juror bias indicated that 89.7% of the respondents recalled hearing or reading about the incident. When asked a second question containing some specifics of the case, 16.3% of those who did not recall the incident when asked the first question recalled the incident. Eighty-two percent of the respondents were able to recall and describe some specifics about the incident. The report concluded that specificity of recollection indicated that the respondents’ memories regarding the case were vivid and resistant to change. More than 60% of the respondents had already decided that Jackson was probably or definitely guilty, as compared with only 2% who believed him probably or definitely not guilty. University of Kansas Professor Lawrence Wrightsman, who assisted in designing the survey, had prepared an affidavit summarizing the results. In the affidavit, Professor Wrightsman stated: “[P]retrial publicity that is negative to the defendant continues to have an impact on the jurors, throughout the trial and during the deliberation phase. Research has shown that subjects, like jurors, will use information they receive prior to the trial to form a coherent impression of a target person, such as a defendant, and this information then influences their subsequent judgments.” Finally, the affidavit concludes: “[T]he attentiveness of the population to the local media, the high level of awareness of this case, and the strong level of anti-defendant reactions lead me to draw two conclusions. First, coverage in the local media was highly one-sided and sensationalized. Second, the quantity and quality of bias engendered by that coverage makes it extremely difficult to select an unbiased jmy from this population.” The court took the matter under advisement and ultimately denied the motion for change of venue, citing the expense of moving the trial, the fact no news stories had appeared in the press for over 6 months preceding the trial, and that most of the pretrial publicity occurred within a few days of the incident. The court noted that the survey was taken from a sample of registered voters rather than from a sample of licensed drivers. The court pointed out that Shawnee County jurors are selected from a list of licensed drivers. The court then stated that it had reviewed the media coverage of this incident and found it not to be significantly sensationalized. The court noted that of the 63% of the sample who believed the defendant to be guilty, none were asked a follow-up question regarding whether they would be able to disregard anything learned from the news if they were selected as jurors. Finally, the court determined that the jury panel should be screened by means of questionnaires and voir dire questioning. Pursuant to the order of the court, potential jurors completed questionnaires. The questionnaire asked whether the jurors had heard or seen news reports of the incident; what recollection of the incident they had; whether the jurors had discussed this case with anyone; whether the jurors knew Bobby Jackson, the victims, or their families; whether the jurors had any opinion about Jackson’s guilt or innocence; whether the jurors had ever heard anyone express an opinion about this case; whether the jurors could disregard any prior knowledge they had about the case and decide the case based upon the evidence presented at trial; whether jury service would cause the jurors any great inconvenience; and whether the jurors held any personal beliefs which would prevent them from sitting in judgment and reaching a verdict. The court and both counsel reviewed these questionnaires prior to voir dire questioning and excused a number of the potential jurors solely based upon their written answers. On the first panel, jurors indicating that they would not be able to put aside their prior knowledge about the case and decide it based solely upon the evidence at trial were excused for cause. A significant number of jurors in the second panel was also excused based solely upon the questionnaires. Again, many of these jurors indicated that they had formed an opinion about Jackson’s guilt or innocence and that they would not be able to put aside their prior knowledge of the case and decide the matter based on the evidence. Several other jurors were dismissed during voir dire questioning, one because of his inability to ignore the news stories. Jackson argues that it is significant that, of the 30 jurors who were excused for cause, 13 expressed an incorrect belief that he had been kicked out of the club and later returned with a gun and started shooting. Jackson theorizes that this incorrect information came from media reports. Jackson asserts: “This type of incorrect information is important, because according to the findings of the professionals involved in the survey, such information has an impact on the jurors and tends to stay in the juror’s [sic] minds, even through deliberation on a verdict.” We note that of the total number of jurors on the panel, 36% were excused for cause. Of the jurors excused for cause, approxi mately 80% were excused based solely upon their answers to the questionnaire. Fourteen jurors were ultimately chosen to serve on the jury or as alternates. On the.questionnaires of the 14 people chosen as jurors or alternates, one responded to the questionnaire that she followed the story in the media with interest and one stated he could not put aside prior knowledge of the case and reach a decision based upon the evidence. Jackson claims two of the jurors ultimately chosen responded to the questionnaire that they could not put aside prior knowledge. Jackson fails to provide the court with references to the record for this assertion. The record reflects there was only one juror in this category. All the jurors were rigorously questioned during voir dire and stated they could listen to the evidence at trial and reach a verdict with impartiality. After the final panel was selected, the defendant had an opportunity to renew his motion for change of venue, but chose not to do so and passed the panel for cause. This indicates during voir dire there were few problems with obtaining and empaneling an impartial jury. See generally State v. Bierman, 248 Kan. 80, 88, 805 P.2d 25 (1991); State v. Richard, 235 Kan. 355, 365, 681 P.2d 612 (1984). Although Jackson has established that there was wide media publicity regarding the shooting, this court has long held that media publicity alone never establishes prejudice per se. See State v. Grissom, 251 Kan. at 927. The burden is on the defendant to show that the publicity has reached the community to such a degree that it is impossible to get an impartial jury. 251 Kan. at 927. In Grissom, the court affirmed the trial court’s denial of a change of venue motion where over 120 articles were published in the local media, one Kansas City television station alone broadcast about 200 stories, and voir dire took 4 days. 251 Kan. at 928. Jackson claims that the news coverage here was more inflammatory than in Grissom. He notes that one news program showed an interview with a sister of a murder victim, other citizens voiced outrage at the incident, and one news segment reported an effort to seek contributions to establish an organization dedicated to ensuring public safety from other similar incidents. Jackson also points to another stoiy which concerned the district attorney’s comments regarding the limited retroactivity provision of the Kan sas Sentencing Guidelines which had led to Jackson’s release from a prior incarceration shortly before the shootings. On this basis, Jackson speculates that this coverage deprived him of a fair trial. Our review of the stories indicates that they were factual and not so inflammatoiy as to interfere with Jackson’s right to a fair trial. Jackson also argues that media coverage was inaccurate. He cites to one inaccuracy — that 27 members of the jury panel incorrectly recalled that Jackson had been kicked out of the club and later returned with a gun. The evidence at trial was uncontroverted that Jackson did not leave the club, but merely exited through the first set of exit doors and returned shortly thereafter. Jackson has not shown how this inaccurate belief held by some jurors prior to hearing evidence denied him a fair trial. Many of the venirepersons qualified to sit as jurors had been exposed to some pretrial publicity. However, each juror was questioned extensively about whether he or she had formed an opinion about the case. Each one stated unequivocally that he or she had not formed an opinion or would be able to set aside that opinion and would presume the defendant innocent and decide the case based solely upon the evidence and the law. The record reflects that the jurors who indicated on the questionnaires that pretrial publicity might create a preconceived version of the facts were subject to intense voir dire. The jurors asserted they could be fair and impartial and would decide the case based on the evidence. Nothing in the record suggests that the jurors were untruthful about their ability to set aside any preconceived opinions and decide the case based solely on the evidence. That the jurors made distinctions in Jackson’s culpability relating to the three murders indicates that their verdicts were not the result of a panel inflamed by prejudice. In State v. Ruebke, 240 Kan. at 500-01, the court stated: “Media publicity alone has never established prejudice per se. The trial court had no difficulty in finding from the jury panel jurors who stated that they could render a fair and impartial verdict. . . . Unless we are to assume that (1) the jurors selected to try the defendant violated their oath when they swore that they could give the defendant a fair trial or (2) an individual can commit a crime so heinous that news coverage generated by that act will not allow the perpetrator to be brought to trial, the defendant has not established substantial prejudice.” In reviewing the record, we find that Jackson offers only speculation that his substantial rights were prejudiced. The trial court did not abuse its discretion in denying Jackson’s motion for change of venue. V. UPWARD DURATIONAL DEPARTURE Pursuant to K.S.A. 1993 Supp. 21-4716(a), the district court must find “substantial and compelling reasons to impose a departure” of a sentence. K.S.A. 1993 Supp. 21-4716(a) also requires the district court to “state on the record at the time of sentencing the substantial and compelling reasons for the departure.” Jackson argues the district court erred in imposing an upward durational departure sentence on his conviction for voluntary manslaughter. Jackson claims the court never articulated how Jackson manifested excessive brutality in a manner not normally present in the voluntary manslaughter of Stratton or the substantial and compelling reasons for the upward durational departure. A claim that the departure factors relied upon by the sentencing court do not constitute substantial and compelling reasons for departure is a question of law for which an appellate court’s review is unlimited. State v. Cox, 258 Kan. 557, 575, 908 P.2d 603 (1995); State v. Gideon, 257 Kan. 591, Syl. ¶ 20, 894 P.2d 850 (1995). A clearly erroneous standard applies to a claim that the evidence was insufficient to justify a departure. State v. Gideon, 257 Kan. 591, Syl. ¶ 20. In its request for an upward departure, the prosecution stated as reasons for departure sentencing: “2. The defendant’s conduct during the commission of the current offense manifested excessive brutality to the victim in a manner not normally present as suggested by K.S.A. 21-4716(b)(2)(B). “3. The defendant repeatedly used firearms in the commission of the current offense. “4. The defendant was on supervised release from incarceration for a conviction of a felony at the time of the commission of the current offense.” In the journal entry, the judge listed only one aggravating factor for the departure sentence, that “[t]he defendant’s conduct during the commission of the current offense manifested excessive brutality to the victim in a manner not normally present in that offense.” This is a factor listed in K.S.A. 1993 Supp. 21-4716(b)(2)(B). The district court’s reasons for departure at sentencing differ somewhat from its written findings. Comments at the time of sentencing, not the written journal entry, govern as to reasons for departure. Gideon, 257 Kan. 591, Syl. ¶ 21. The district court stated in imposing sentence: “All right. It’s always a question as to how much the Court should say. The law requires me to say certain things. A case like this, there’s a lot that can be said about it. Mr. Meineke has alluded to Mr. Jackson’s criminal record, which formally began at age 13. The conviction in the 1987 juvenile case that’s been referred to, Mr. Jackson struck a school teacher in the face, fractured bones, ran up a $9500 medical bill which he was ordered to pay and he’s never paid a nickel. He’s been involved in the social systems of this community since, if in fact not before, age 13. He’s been through substance abuse treatment, medical — or alcohol and drug treatment. No significant record of any employment. It’s a bit eerie the factual patterns between what happened at age 17 at Topeka High School and what occurred at Shanghi-Lil’s in April 1994, because it was about the same thing. The teacher had asked Mr. Jackson to leave the gym. He was there without a pass. And instead of leaving, he went off. When he went off at Shanghi-Lil’s, he had a gun, and as a result of that, three people are dead. “I think the real issue today in die whole discussion, really, is centered around two issues, as I see them, on this sentence. One is, do we do a departure as to the voluntary manslaughter count involving Mr. Stratton and do we run all of the sentences consecutively or concurrendy? Let me first say that while it may be an exercise in the absurd, there are lots of reasons for sentencing. Some of them— some of them direcdy [affect] the victim or have directly to do with the victim. “There have been attempts at rehabilitation, probably to the excess, with Mr. Jackson, and as far as the Court’s concerned, it’s time we threw away the key. So, as to the defendant, I see nothing that would say anything other than crying out for the Court to make sure that Mr. Jackson doesn’t have another opportunity to confront a teacher or to be confronted by a teacher or someone asking him at two o’clock in the morning or telling him that it’s time to leave a bar. “Sentencing also says something to the community, and that is, how do we value human life and how do we deal with people? Some of the family members mentioned fife without parole. We don’t have that sentence in Kansas. Maybe we should. I don’t know. It’s not my decision to make. But we don’t have life without parole in Kansas. We have a rather — if you haven’t gathered already, it’s a rather complicated system that we have to work with. But it seems to me that to give concurrent sentences in this case would depreciate the lives of the victims who also died and the tragedy that it’s caused the families when a person on parole in violation of not only his parole, but the law, took a firearm into a public place and started firing. That is a reckless disregard of human life and affected multiple people. And as to Mr. Stratton, he gunned him down while he was running away. He was under no threat at all. So I see no reason to — I mean, I believe it is my obligation to make a departure in the Stratton case, which would be Count 3, and as to that which, as I say, that’s really what we’re talking about, and also the concurrent and consecutive sentences. And I’m going to sentence Mr. Jackson to 190 months on Count 3.” Jackson does not discuss the issues addressed by the trial court in imposing sentence. Citing State v. Cook, 259 Kan. 370, 913 P.2d 97 (1996), Jackson argues only that the general rule in Kansas is that a shooting does not qualify as a factor of excessive brutality in an aggravated battery. Cook involved a determination of whether there was evidence indicating that the killing was done in a heinous, atrocious, or cruel manner, so as to support the imposition of a hard 40 sentence and not whether a shooting is excessively brutal. Jackson analogizes a finding of excessive brutality in committing a murder by shooting to a finding of committing murder in a particularly “heinous, atrocious, or cruel manner” under the hard 40 statute, K.S.A. 1993 Supp. 21-4628. Using this rationale, he contends that there is no evidence to support.a finding that Stratton suffered serious mental anguish or serious physical abuse above and beyond a typical murder committed by shooting. The State contends that the defendant’s analogy between an excessively brutal aggravated battery and a heinous, atrocious, or cruel murder is not appropriate. The State asserts that if the legislature had intended to incorporate the case law defining the terms “heinous, atrocious, or cruel” into the “excessive brutality” aggravating factor for upward durational departure sentences, the legislature would have used the terms “heinous, atrocious, or cruel” rather than “excessive brutality” in listing the aggravating factor. A “heinous, atrocious, or cruel” murder allows a defendant to be imprisoned for 40 years without parole, the harshest sentence in Kansas at the time it was enacted. K.S.A. 1993 Supp. 21- 4716(b)(2)(B). A finding of “excessive brutality” allows a court to depart from the defendant’s presumptive guidelines sentence by up to two times the maximum presumptive imprisonment term. K.S.A. 1993 Supp. 21-4719(b)(2). We agree with the State’s contention that these terms are not related. See State v. Valentine, 260 Kan. 431, 921 P.2d 770 (1996). In imposing the departure sentence, the trial judge noted that after Jackson shot Fabry, an unarmed Stratton came to Fabry’s aid by grabbing Jackson around the arms and chest. After Stratton let go of Jackson and started to run in an effort to escape, Jackson shot Stratton. Under the circumstances, the trial court did not err in finding that Jackson’s conduct during the commission of the offense manifested excessive brutality to the victim in a manner not normally present in the offense. The next question is whether the excessive brutality constituted a substantial and compelling reason for departure. See K.S.A. 1993 Supp. 21-4721(d)(2). In K.S.A. 1993 Supp. 21-4716(b)(2)(B), the legislature made it clear that excessive brutality is an aggravating factor which may be considered in determining whether substantial and compelling reasons exist for departure. Further, we have previously determined that excessive brutality alone may constitute a substantial and compelling reason for departure. See State v. Valentine, 260 Kan. at 444 (citing State v. Duke, 256 Kan. 703, 721, 887 P.2d 110 [1994]). We find the court’s findings constitute a substantial and compelling reason for departure. The trial court’s imposition of an upward durational departure sentence is affirmed. VI. AGGRAVATED BATTERY SENTENCE K.S.A. 1993 Supp. 21-3414(a)(l)(A), intentionally causing great bodily harm to another person or disfigurement of another person, is a level 4 felony offense, and the district court sentenced Jackson to 43 months on count 4 for a level 4 felony offense. The 43-monfh figure is the highest figure in box 4-1 of the nondrug sentencing grid. K.S.A. 1993 Supp. 21-4704. Jackson argues that the district court erred in sentencing him for a level 4 aggravated battery of Alan Eastman, and that the sentence is illegal. The State conceded this issue during oral argument. K.S.A. 1993 Supp. 21-3414 provides: “(a) Aggravated batteiy is: (1) (A) intentionally causing great bodily harm to another person or disfigurement of another person; or (B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted; or (C) intentionally causing physical contact with another person when done in a rude, insulting, or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted; or (2) (A) recklessly causing great bodily harm to another person or disfigurement of another person; or (B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted. “(b) Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as described in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony. Aggravated battery as described in subsection (a)(2)(A) is a severity level 5, person felony. Aggravated battery as described in section (a)(2)(B) is a severity level 8, person felony. A person convicted of aggravated batteiy shall be subject to the provisions of subsection (h) of K.S.A. 1993 Supp. 21-4704 and amendments thereto.” Count 4 of the complaint, charging aggravated batteiy, reads: “On or about the 8th day of April, 1994 in the County of Shawnee and State of Kansas, ROBERT LEWIS JACKSON, did then and there unlawfully, feloniously and wilfully intentionally cause great bodily harm to another person, to-wit: Allan [sic] Eastman, with a deadly weapon, to-wit: 9mm semi-automatic pistol, or in a manner whereby great bodily harm, disfigurement or death could have been inflicted, contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Kansas.” The language of Count 4 is a hybrid of the various sections of K.S.A. 1993 Supp. 21-3414, the aggravated battery statute. Count 4 includes an allegation of “causing” great bodily harm, from section (a)(1)(A), and the allegation of use of a deadly weapon “whereby great bodily harm, disfigurement or death could have been inflicted” from section (a)(1)(B). The jury was instructed in instruction No. 16 as to count 4 as follows: “The defendant is charged in Count 4 with the crime of aggravated battery against the person of Allan [sic] Eastman. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: “1. That the defendant intentionally caused bodily harm to another person with a deadly weapon and in any manner whereby great bodily harm, disfigurement or death can be inflicted; and “2. That this act occurred on or about the 8th day of April, 1994, in Shawnee County, Kansas.” This instruction does not state all the elements of level 4 aggravated battery because it lacks the element of "causing great bodily harm” and instead uses the language of K.S.A. 1993 Supp. 21-3414(a)(1)(B), a level 7 felony. Based on the verdict form, the jury actually convicted Jackson of level 7 aggravated battery defined in instruction No. 16. A sentence which does not conform to the statutory provisions, either in character or the term of the punishment authorized, is an illegal sentence. Carmichael v. State, 255 Kan. 10, Syl. ¶ 1, 872 P.2d 240 (1994). Therefore, the district court was without jurisdiction to impose a sentence in Count 4 for a level 4 felony offense. Although the charging document charged a level 4 aggravated battery, Jackson was convicted of level 7 aggravated battery. Under K.S.A. 1993 Supp. 21-3414, severity levels 5, 7, and 8 aggravated battery are lesser included offenses of level 4 aggravated battery. State v. Ochoa, 20 Kan. App. 2d 1014, Syl. ¶ 3, 895 P.2d 198 (1995.) Here, the district court had jurisdiction of the level 4 and 7 felonies, and had jurisdiction to impose a sentence for the lesser level 7 aggravated battery of which Jackson was convicted. Jackson’s sentence on Count 4 is vacated and the case is remanded with directions to resentence Jackson for a level 7 felony. VII. CONSECUTIVE SENTENCE FOR UNLAWFUL POSSESSION OF FIREARM When imposing Jackson’s sentence, the district court stated the following at Jackson’s sentencing hearing: “Count 4, the Court will sentence to 43 months consecutive. Count 5,9 months consecutive. Count 6, 9 months, and Counts 7 and 8, the Court would sentence the defendant to six months each in the county jail. I will run those two concurrent with the sentence in the burglary case and Counts one through six here.” The district court did not specify whether the sentence in count 6 (unlawful possession of firearm) was to be served consecutive to or concurrent with the other sentences imposed. The subsequent journal entry of sentencing indicates that the sentence in count 6 was to be served consecutive to the sentences imposed in Counts 1-5. Jackson argues that K.S.A. 1993 Supp. 21-4608(a) requires that his sentence for Count 6 be served concurrent with the other convictions. The State conceded this issue in oral argument. K.S.A. 1993 Supp. 21-4608(a) provides: “(a) When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrently or consecutively as the court directs. Whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently . . . .” The fact that the journal entiy of sentencing indicates that the sentence in count 6 was imposed consecutively is not the deciding factor. The court’s judgment and sentence in a criminal case do not derive their effectiveness from the journal entiy. Once a sentence is imposed, the district court is powerless to vacate that sentence and impose a harsher sentence. State v. Royse, 252 Kan. 394, Syl. ¶¶ 3, 4, 845 P.2d 44 (1993). The judgment in a criminal case, whether it imposes a fine, grants probation, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench. State v. Hunt, 257 Kan. 388, Syl. ¶ 5, 894 P.2d 178 (1995). The sentence on count 6 was effective when pronounced. Because the record of the sentencing hearing is silent as to whether the sentence should run concurrently or consecutively, the sentence must be served concurrent with the other sentences. VIII. LEVEL 8 AGGRAVATED BATTERY OF HEIDI CHILDERS For his final point on appeal, Jackson argues the court was without jurisdiction to convict and sentence him for the aggravated battery of Heidi Childers. The State failed to brief this issue. In count 5 of the complaint, Jackson was charged with aggravated battery against Childers. Count 5 stated: “On or about the 8th day of April, 1993, in the County of Shawnee and State of Kansas, ROBERT LEWIS JACKSON, did then and there unlawfully, feloniously and wilfully intentionally cause physical contact with another person, to-wit: Heidi Childers, in a rude, insulting or angry manner with a deadly weapon, to-wit: 9mm semi-automatic pistol, or in a manner whereby great bodily harm, disfigurement or death could have been inflicted, contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Kansas.” K.S.A. 1993 Supp. 21-3414, which defines aggravated battery, provides: “(a) Aggravated battery is: (1) (A) intentionally causing great bodily harm to another person or disfigurement of another person; or (B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted; or (C) intentionally causing physical contact with another person when done in a rude, insulting, or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted; or (2) (A) recklessly causing great bodily harm to another person or disfigurement of another person; or (B) recklessly causing bodily harm to another person with a deadly weapon, or in.any manner whereby great bodily harm, disfigurement, or death can be inflicted. “(b) Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as described in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony. Aggravated battery as described in subsection (a)(2)(A) is a severity level 5, person felony. Aggravated battery as described in section (a)(2)(B) is a severity level 8, person felony. A person convicted of aggravated battery shall be subject to the provisions of subsection (h) of K.S.A. 1993 Supp. 21-4704 and amendments thereto.” Count 5 charged aggravated battery found in K.S.A. 1993 Supp. 21-3414(a)(l)(C), a level 7 felony. The jury was instructed on the offense in instruction No. 18. The jury was also instructed in instruction No. 19 on the form of aggravated battery found in K.S.A. 1993 Supp. 21-3414(a)(2)(B), a level 8 felony which the trial court found to be a lesser included offense. Jackson made no objection to the instruction. The jury ultimately convicted Jackson of the lesser included offense. Jackson now claims that the court was with out jurisdiction to adjudge him guilty of the level 8 aggravated battery because it was not a lesser included offense of level 7 aggravated battery. K.S.A. 21-3107(2) provides: “Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a) A lesser degree of the same crime; (b) an attempt to commit the crime charged; (c) an attempt to commit a lesser degree of the crime charged; or (d) a crime necessarily proved if the crime charged were proved.” Count 5 charged Level 7 aggravated battery or intentionally causing physical contact done in a rude, insulting, or angry manner with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death can be inflicted. K.S.A. 1993 Supp. 21-3414(a)(1)(C). Level 8 aggravated battery is recklessly causing bodily harm with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death can be inflicted. K.S.A. 1993 Supp. 21-3414(a)(2)(B). The two levels of aggravated battery differ in two respects, the intent and the type of harm caused: Level 7 contemplates intentional conduct while level 8 contemplates reckless conduct. With respect to the differences in intent requirement, Jackson concedes that intentional conduct includes reckless conduct. Jackson argues, however, that Level 7 aggravated battery requires physical contact done in a rude, insulting, or angry manner, while level 8 requires bodily harm. Here, Jackson contends that proving the lesser crime does not necessarily prove the greater crime, as one may prove rude, insulting, or angry physical contact without proving, or needing to prove, bodily harm. In determining whether a lesser crime is a lesser or a lesser included offense under K.S.A. 21-3107(2)(d), a two-step analysis has been adopted. The first step is to. determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutory elements of the crime charged, the lesser crime may still be a lesser included crime if the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime. State v. Fike, 243 Kan. 365, Syl. ¶ 1, 757 P.2d 724 (1988). The flaw in Jackson’s reasoning is that the evidence at trial indicated that Childers had suffered bodily harm which was either the result of intentional or reckless conduct. The trial court instructed on the theory of aggravated battery charged in the complaint (intentional physical contact) and the theory of aggravated battery supported by the evidence at trial (reckless bodily harm) which carries a less severe sentence. Jackson made no objection to the instruction at trial. This is not a case where the defendant has been prejudiced by an instruction on a completely different crime with an increased severity level. Under the facts of this case, we affirm Jackson’s conviction and sentence on this count. We vacate Jackson’s sentence for aggravated battery of Alan Eastman and remand for resentencing. Jackson’s sentence for count 6, unlawful possession of firearm, is ordered to run concurrent with his other sentences. Jackson’s convictions and other sentences are affirmed.	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The opinion of the court was delivered by Six, J.: This is a durational departure sentence appeal. Defendant Leslie Davis pled guilty to: (1) possession of cocaine with the intent to sell, a drug severity level 3 felony, in violation of K.S.A. 1994 Supp. 65-4161(a); and (2) possession of proceeds derived from a violation of the Uniform Controlled Substances Act (UCSA), K.S.A. 65-4101 et seq., a severity level 7 nonperson felony under K.S.A. 1994 Supp. 65-4142. Our jurisdiction arises from K.S.A. 21-4721(a) (departure sentence appeal) and K.S.A. 20-3018(c) (transfer on this court’s order). The issue is whether the district court erred in imposing a durational departure sentence. We find no error and affirm. FACTS The Salina police, with a search warrant, conducted the search that led to Davis’ arrest. They found approximately 5 ounces (135 grams) of rock cocaine in five plastic baggies, $3,000 in cash, a box of plastic sandwich baggies in his motel room, and 49 plastic sandwich baggies in a trash can with the bottom comers of the baggies cut off. Davis’ car was also searched, revealing a pager and a cellular phone. He was arrested and charged in a four-count complaint. Davis entered guilty pleas to the first two counts in exchange for the State’s dismissal of the remaining counts and an agreement not to request any departure that would result in a total sentence beyond 29 months. According to the State, assuming Davis’ criminal history was category I (no prior criminal record), 29 months would be the maximum guidelines sentence that could be imposed if the sentences for the first two counts were imposed consecutively. The State filed a motion for durational departure or consecutive sentence (durational departure sentence of 29 months on count 1, or in the alternative, consecutive sentences on counts 1 and 2 totaling 29 months). The following grounds for departure were asserted: “1. These crimes were committed as part of a major organized drug delivery activity. "2. The defendant derived a substantial amount of money or asset ownership from the illegal drug sale activity. “3. The defendant was in possession of packaging material at the time of his arrest. “4. The defendant was in possession of telecommunication equipment used in the large-scale distribution of drugs and controlled substances. “5. The defendant was in possession of a large amount of cocaine at the time of his arrest. “6. The defendant engaged in repeated criminal acts associated with the delivery of cocaine.” Lieutenant Mike Marshall, an experienced narcotics investigator, testified at the sentencing hearing about how rock cocaine was sold in the Salina area. He estimated that approximately 500 or more doses, or “rocks,” could have been sold from the amount of rock cocaine found, at a price of $50 to $100 per rock. A rock is typically sold by placing it in the comer of a plastic baggie and cutting off the comer. He estimated that 98 rocks had been placed in the 49 comer baggies for sale. He characterized this case as "one of our pretty large cases here in Salina.” Lt. Marshall described how the pager and cellular phone would typically be used in a cocaine transaction. On cross-examination, he admitted that, it was not unusual to find equipment such as cellular phones and pagers in a large portion of the cocaine cases he had investigated. He also admitted that the amount of cocaine found was not unusual, but reiterated that it was a large amount for the area. He stated: “I mean, there is other areas in the bigger cities where you get probably those amounts.” Davis’ attorney argued that the State had not shown that the crimes were committed as part of a major organized drag delivery activity. Counsel emphasized that Davis was a “youthful offender” with no prior criminal record, who had taken responsibility for his acts and thus should receive probation. We disagree. Although the State asserted that the $3,000 found in Davis’ motel room would support a finding that Davis derived a substantial amount of money from the illegal drug sale activity, the district judge made no such finding on the record. The judge found that Davis, at the time of his arrest, was in possession of packaging materials, telecommunication equipment used in large-scale distribution of drugs and controlled substances, and a large amount of cocaine. The district court concluded that the crimes “were committed as part of a major organized drug delivery activity as defined under Kansas law.” Probation was denied and a durational departure sentence of 24 months imprisonment imposed for the possession of cocaine with intent to sell offense. A concurrent sentence of 12 months for the possession of proceeds derived from violation of the UCSA offense was entered. DISCUSSION In an appeal from a departure sentence, we must determine under K.S.A. 21-4721(d) whether the sentencing court’s findings of fact and reasons justifying departure (1) are supported by substantial competent evidence and (2) constitute substantial and compelling reasons for departure as a matter of law. K.S.A. 21-4721(d)(1) requires an evidentiary test — are the facts stated by the sentencing court in justification of departure supported by the record? K.S.A. 21-4721(d)(2) requires a law test — are the reasons stated on the record for departure adequate to justify a sentence outside the presumptive sentence? See State v. Valentine, 260 Kan. 431, 438, 921 P.2d 770 (1996). K.S.A. 21-4717 lists aggravating factors that may be considered in determining whether substantial and compelling reasons for departure exist for drug crimes. K.S.A. 21-4717(a)(l) provides as one aggravating factor that the crime was committed “as part of a major organized drug manufacture, production, cultivation or delivery activity.” The statute lists several nonexclusive factors, two or more of which will “constitute evidence of major organized drug manufacture, production, cultivation or delivery activity.” The district court found two of the K.S.A. 21-4717(a)(l) factors present, (D) and (F). Davis was in possession of packaging materials and telecommunication equipment used in the large-scale distribution of drugs and controlled substances, K.S.A. 21-4717(a)(1)(D). Although telecommunication equipment is not listed in the statute, “distribution materials,” mentioned in the statute, are not limited to the items listed. The plastic baggies constitute “packaging material” listed in the statute. Davis was in possession of a large amount of cocaine at the time of his arrest, with a street value of between $25,000 to $50,000. K.S.A. 21-4717(a)(1)(F). K.S.A. 21-4717 states: “(a) The following aggravating factors, which apply to drug crimes committed on or after July 1, 1993, under the sentencing guidelines system, may be considered in determining whether substantial and compelling reasons for departure exist: “(1) The crime was committed as part of a major organized drug manufacture, production, cultivation or delivery activity. Two or more of the following nonexclusive factors constitute evidence of major organized drug manufacture, production, cultivation or delivery activity: “(D) The presence of manufacturing or distribution materials such as, but not limited to, drug recipes, precursor chemicals, laboratory equipment, lighting, irrigation systems, ventilation, power-generation, scales or packaging material. “(F) Possession of large amounts of illegal drugs or substantial quantities of controEed substances.” Davis argues that the legislature intended departure sentences to be imposed only in “unusual” cases and contends that the district court’s subjective conclusion should not prevail over the objective conclusion of Lt. Marshall that the amount of cocaine found was not an “unusual” amount. Although Lt. Marshall admitted that this amount was not unusual, he did testify that it was a large amount for the Salina area. We agree with the district court’s conclusion, which was based on Lt. Marshall’s observation. Davis suggests that his sentence is contrary to one of the purposes of the sentencing guidelines, i.e., to standardize sentences. He implies that while his drug crimes may appear major in a rural community, they might not be in Kansas City. However, he fails to show that his crimes would be considered iess than major drug crimes, even in Kansas City. K.S.A. 21-4717(a)(l)(F) speaks of “large amounts of illegal drugs or substantial quantities of controlled substances” — not “unusual amounts” or “unusually large amounts.” Whether an amount is “unusual” is not the criterion set forth in the statute. A sufficient quantity of rock cocaine to supply 500 $50 to $100 sales seems large under any standard, rural or urban. The State’s suggestion that the “analysis should be made on the harm done by the sale of that amount of cocaine, not on where the sale occurs,” is well taken. As the district judge said: “[T]hose 500 rocks of cocaine are sold and cause this community and people within this community to bleed.” The district court’s factual findings and reasons justifying the departure sentence are supported by substantial competent evidence and constitute substantial and compelling reasons for departure under K.S.A. 21-4717(a)(l). However, we echo the district judge’s question at the sentencing hearing: “Why does the State file motions for departure in cases like this and take the Court’s time to have them heard in the way it’s presented rather than to just stake out your position for consecutive sentences?” The judge observed that if the district court imposed consecutive sentences, the sentence would not be appealable, whereas with a departure, it would be. The district court is affirmed.	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In a letter dated March 24; 1997, to fhé Clerk of the Appellate Courts, respondent Patrick S. Dow, of Eureka, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1996 Kan. Ct. R. Annot. 223). On March 7,1997, this court indefinitely suspended respondent from the practice of law for numerous violations of the Model Rules of Professional Conduct. The date of his indefinite suspension commenced on November 22, 1996, the date of his temporary suspension. In re Dow, 261 Kan. 989, 933 P.2d 666 (1997). At the time respondent surrendered his license, there were three complaints scheduled for hearing before a panel of the Kansas Board for Discipline of Attorneys. The complaints contained allegations of lack of diligence, failure to communicate with clients, and failure to return unearned retainers. This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred. It Is Therefore Ordered that Patrick S. Dow be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked, effective November 22, 1996. It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Patrick S. Dow from the roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1996 Kan. Ct. R. Annot. 226).	[ -80, -22, -36, 92, 12, 104, 50, -68, 81, -53, 103, 83, -19, -38, 37, 107, -125, 125, 113, 121, -59, -74, 118, 72, 38, -5, -119, -59, -72, 95, -26, -3, 94, 56, 10, -43, 70, -54, -55, -36, -122, 5, 9, -4, 88, -123, 52, 9, 86, 15, 113, 31, -77, 46, 29, 65, -88, 108, -21, -27, 81, -111, -104, -107, 124, 17, -77, 4, 28, 5, 88, -85, -120, -69, 8, -4, 51, 34, -122, 118, 79, -7, 4, 103, 98, 32, 49, -89, -68, -84, 45, 59, -99, -58, -47, 88, 99, -119, -106, -36, 103, 20, 35, -4, 98, 5, 23, -20, 14, -49, -48, -77, 79, 87, -50, -101, -1, -57, 32, 84, -105, -12, 92, 71, 114, 27, -50, -12 ]
The opinion of the court was delivered by Lockett, J.: Plaintiff manufacturer claimed that it was eligible for economic development discounts in the price of electricity purchased from defendant public utility for electric service to a manufacturing plant. The defendant regulatory agency determined that (1) the manufacturer was not eligible for the economic development tariff; (2) the utility had no affirmative duty to disclose the economic development tariff to the manufacturer; and (3) no discrimination occurred. The district court granted the utility’s motion to dismiss, finding that the manufacturer’s complaint failed to state a claim for which relief could be granted, and affirmed the regulatory agency. The manufacturer’s appeal to the Court of Appeals was transferred to this court. K.S.A. 20-3018(c). FACTS: Grindsted Products, Inc., (Grindsted) manufactures bulk food products at a facility located in Johnson County, Kansas. Kansas City Power & Light Company (KCPL), a certificated public electric utility, provides electric service to Grindsted. In 1989, Grindsted began planning and development of an expansion at the Johnson County location. An architectural firm retained by Grindsted discussed the expansion with KCPL and provided KCPL with specifications for the expanded facility. Although Grindsted states that the discussions involved “rates,” the only direct evidence in the record of these discussions is a letter dated December 9, 1989, from the architectural firm to KCPL relating to revised specifications for the “Ammonia Project.” This document was apparently not part of the record at the Kansas Corporation Commission (KCC) but was appended to Grindsted’s reply brief in the district court. However, since the case was decided on a motion to dismiss, the court would have considered only the allegations in the complaint. The complaint did not allege that Grindsted had direct discussions with KCPL in which it requested the most advantageous rate. Grindsted completed the expansion and began receiving electric service in May 1990. KCPL initially placed Grindsted’s expanded facility on the Primary Service — Large (PL) tariff. In 1991, KCPL reviewed usage at Grindsted’s facility, determined it qualified for a lower tariff, General Service — Large (GL), and refunded the difference. The Economic Development Rider (EDR) to which Grindsted claims entitlement was filed by KCPL with the KCC effective July 20, 1988. The stated purpose of the EDR was to encourage “industrial and commercial business development in Kansas. These activities will attract capital expenditures to the State, diversify [KCPL’s] customer base, create jobs and serve to improve the utilization of efficiency of existing Company facilities.” The EDR discount was 30% for year 1 of service, decreasing by 5% per year for 4 years to a final discount of 10% in the fifth year. The 1988 EDR stated that its discounted rates are only available in conjunction with government economic development programs where incentives have been offered to locate or expand facilities in the KCPL service area. With respect to applicability, the 1988 EDR stated: “Upon the request of the customer and acceptance by the Company, the provisions of this rider will be applicable to: 1) new industrial and commercial customers and 2) additional separately-metered facilities of existing industrial and commercial customers.” The 1988 EDR was later superseded by another EDR in December 1991. The 1991 EDR stated: “New or expanded facilities under construction or otherwise committed to operation prior to the effective date of this Rider are ineligible for service under this Rider. The availability of this Rider shall be limited to industrial and commercial facilities not involved in selling or providing goods and services directly to the general public. Customers receiving service under this Rider must qualify under the criteria of this Rider or have been served under the superseded Rider on December 31,1991.” Grindsted alleges it was unaware of the existence of the EDR until late 1993, although it had been filed with the KCC since 1988. In July 1993, Grindsted applied for service under the EDR. KCPL denied Grindsted’s request because Grindsted had failed to apply for the EDR tariff prior to deciding to expand its facility. KCPL stated: “The EDR is a tariff specifically designed to provide an incentive for prospective additional load where the customer decision to build, relocate or expand has not been made. It is the only tariff with a purpose clause, and its intent is to help the customer decide to locate within KCPL’s territory, thus bringing value to the company. The Grindsted expansion was handled by the Austin Co. Engineering firm, who presented site specific plans to KCPL for service consideration. From these plans, it was apparent that the customer had already reached a business decision to expand the existing facility and no inquiry was made to KCPL concerning incentives, nor to indicate that the final site selection was in question. We believe that the steps taken by KCPL to ensure timely and effective service to this new building were proper and that the customer is not eligible for service under the EDR tariff.” In other words, since Grindsted had decided to expand its facility prior to learning about the EDR incentives, KCPL decided the provisions of the EDR did not apply to Grindsted. On February 7,1994, Grindsted filed a complaint with the KCC, Docket No. 190,097-U. Count I was styled “Qualifications for the EDR” and alleged that its facility had qualified for the EDR by its terms. The complaint does not allege that KCPL had a legal duty to inform Grindsted of the existence of the EDR or to inform Grindsted of the lowest available tariff. In the prayer for relief, Grindsted sought an order determining that KCPL had improperly failed and refused to apply the EDR tariffs to Grindsted and directing that Grindsted be served under the EDR tariff prospectively. Count II of Grindsted’s complaint was styled “Discrimination.” It alleged that KCPL had unjustly, unreasonably and unlawfully discriminated against Grindsted in violation of K.S.A. 66-109 by failing to disclose and refusing to apply the EDR tariff to Grindsted. Grindsted requested that the KCC order KCPL to serve Grindsted under the EDR. Simultaneously, Grindsted filed an action in the district court of Johnson County against KCPL, requesting an interpretation of the EDR and damages pursuant to K.S.A. 66-176. The KCC intervened in that action for the purpose of addressing jurisdiction. The district court ultimately dismissed the action for lack of jurisdiction. Grindsted appealed, and the Court of Appeals affirmed the district court’s dismissal in Grindsted Products, Inc. v. Kansas City Power & Light Co., 21 Kan. App. 2d 435, 448, 901 P.2d 20 (1995), finding that the KCC had jurisdiction over issues of tariff interpretation. Subsequently, Grindsted filed a second action with the KCC, Docket No. 191,200-U. Grindsted requested that the KCC construe the EDR, determine that Grindsted qualified for the EDR, find that KCPL overcharged Grindsted, and order a refund. Grindsted also filed a motion to consolidate the two complaints before the KCC. KCPL filed motions to dismiss the complaints. On November 21, 1994, the KCC issued its order consolidating the complaints and ordering their dismissal because Grindsted’s complaint had failed to state a claim for which relief could be granted. First, the KCC found that Grindsted qualified neither for the 1988 EDR tariff nor the current EDR tariff, filed in 1991. The KCC noted that the current EDR tariff stated that “expanded facilities . . . committed to operation prior to the effective date of this Rider are ineligible for service under this Rider.....Customers receiving service under this Rider must qualify under the criteria of this Rider or have been served under the superseded Rider on December 31, 1991.” The KCC observed that since Grindsted had conceded that its expanded facility opened in May 1990, prior to the effective date of the current EDR Rider, and it was not served under the superseded Rider, it was not eligible to be served under the current EDR. The KCC determined that Grindsted was not qualified for applicability under the 1988 EDR because the EDR provided that it would be applied to qualified customers “[u]pon the request of the customer and acceptance by the Company.” The KCC pointed out that Grindsted’s request for service under the EDR was not made until July 1993, a year and a half after the 1988 EDR had ceased to exist. The KCC rejected Grindsted’s argument that failure of the KCPL to disclose the availability of the EDR precluded Grindsted from applying for the EDR and constituted discrimination in violation of K.S.A. 66-109, which provides in part: “No common carrier or public utility . . . shall, knowingly or wilfully, charge, demand, collect or receive a greater or less compensation for the same class of service performed by it within the state, . . . than is specified in the printed schedules or classifications . . . .” The KCC found that Grindsted’s discrimination argument was based upon the existence of an affirmative duty that KCPL provide notice of the EDR to Grindsted and disclose each available tariff to each individual customer. The KCC noted that numerous courts in other jurisdictions had determined that when a utility files a tariff with its regulatory authority, its customers are charged with constructive notice of the tariff. The KCC concluded that “it is beyond dispute that Grindsted had legal or constructive notice, and any lack of actual notice is irrelevant.” After reáching this conclusion, the KCC noted the following KCPL General Rules and Regulations Applying to Electric Service, on file with the KCC: “Rule 2.01 APPLICATION FOR SERVICE: “(A) A customer applying for electric service shall, if requested by the Company, furnish sufficient information on the size and characteristics of the load and the location of the premises to be served and such additional information as to enable the Company to designate the class or classes of electric service it will supply to the Customer and the conditions under which they will be supplied. A separate application shall be made for each class of electric service to a Customer at each premises of the Customer.” “Rule 6.03 CHOICE AND APPLICATION OF RATE SCHEDULES: “(A) The Customer shall be responsible for determining in advance, through application to the company, the class or classes of electric service which will be designated by the company and made available to the Customer and the applicable conditions of such electric service. The Customer shall be responsible for determining whether the Customer’s installation, and all portions thereof, are and will be suitable for operation at the voltage, phase and other characteristics of the class of service to be supplied by the Company. “(C) CHOICE RY CUSTOMER: If a Customer is eligible to take electric service from the Company under any one of two or more applicable rate schedules available for the class of electric service to be supplied by the Company, the choice of such rate schedule shall lie with the Customer. “(D) ASSISTANCE BY COMPANY: A customer will be assisted by the Company in the selection of the rate schedule under which electric service will be supplied to such Customer, based on the information at hand, but the responsibility for the selection of such rate schedule shall he with the Customer.” After reviewing KCPL’s rules and regulations, the KCC concluded that responsibility for selecting among optional rate schedules fell on Grindsted. The KCC then took notice that on December 30, 1983, it had issued an order in Docket No. 114,337-U requiring jurisdictional utility companies, among other things, to notify customers of proposed and approved rates, inform new customers of applicable rate schedules and available information, and prepare a summary of existing rate schedules and notify customers of its availability in conjunction with a monthly bill once a year. The KCC found that its 1983 order followed case law from other jurisdictions determining that notice of applicable rate schedules and information is proper upon filing with the KCC, and actual notice or knowledge is not necessary. The KCC also deemed pertinent the requirement of its 1983 order that a utility prepare a summary of existing rate schedules and notify customers of its availability in conjunction with a monthly bill once a year. The KCC noted that KCPL’s monthly billing statement reminds customers that rate information is available from any KCPL office and listed office locations and telephone numbers, along with the general 24-hour information number of 471-KCPL. The KCC found that providing this information on a monthly basis exceeded its requirement that information be provided once a year. The supporting case law cited by fhé KCC for the proposition that there is no affirmative duty on the part of a public utility to provide affirmative individual notice to a customer of optional rates included Southeastern Land Co. v. Louisville G. & E. Co., 262 Ky. 215, 90 S.W.2d 1 (1936) (utility was required to file its schedules of special and optional rates with the board of public works, and this was all it was required to do to bring notice to its customers); Pantebakos v. Company, 81 N.H. 441, 128 A. 534 (1925) (com pany s only duty is the duty imposed by statute requiring the company to file its rates and charges); Essex Cty. Welfare Bd. v. N.J. Bell Tel. Co., 126 N.J. Super. 417, 315 A.2d 40 (1974) (the customer is charged with knowledge of the tariff, and bound by it); Wildish Sand & Gravel v. Northwest Natural Gas Co., 103 Or. App. 215, 796 P.2d 1237 (1990) (statute did not impose an affirmative duty on defendant to inform customers of rates in the absence of a specific request for that information), rev. denied 311 Or. 87 (1991); Spear & Co. v. P.S.C., 105 Pa. Super. 240, 161 A. 441 (1932) (no duty to select a rate rests with the utility); and Gulf Colorado & Santa Fe By. Co. v. McCandless, 190 S.W.2d 185 (Tex. Civ. App. 1945) (it is not necessary that a shipper be told of a choice of rates, and it is presumed the shipper knows the provisions of the schedules on file). Finally, the KCC looked to the purpose of the EDR for further support that Grindsted was not entitled to service under the tariff. The KCC observed that the stated purpose of the 1988 EDR was to provide an incentive for development and expansion of industrial and commercial facilities in Kansas. The KCC observed that since Grindsted was not aware of the existence of the EDR at the time it decided to expand its facility, the EDR could not have provided an incentive for the expansion. The KCC found that, from a reading of the text of the EDR’s purpose, Grindsted did not fall within the class of customer which the EDR intended to benefit and Grindsted should not be considered qualified for service under the EDR. The KCC concluded that it is a practical impossibility to require a utility company to ensure that each and every customer receive the most advantageous rate. It found such a requirement would be overly burdensome, both administratively and financially for the company, and the potential liability resulting from a company’s failure to monitor each account, to be “tremendous” both for the company and the regulators. The KCC found that the ultimate decision to obtain the best rate lies with the customer. The KCC concluded that pursuant to KCPL’s rules and the case law from other jurisdictions, KCPL had. no affirmative duty to actually inform Grindsted of the existence of the EDR. It found that Grindsted’s claim in its complaint that it was entitled to service under the EDR due to KCPL’s failure to provide notice was not sufficient to state a claim for relief and dismissed the complaint. After the KCC denied Grindsted’s petition for reconsideration, Grindsted filed a petition for judicial review of the KCC order with the district court of Johnson County pursuant to K.S.A. 77-601 et seq. and K.S.A. 66-118c, claiming that (1) the KCC improperly construed the EDR contrary to principles of tariff interpretation; (2) the KCC improperly determined that public utilities have no duty to disclose available ,tariffs to customers who may be eligible for service under more than one tariff; and (3) the KCC erred in determining that KCPL did not discriminate between similarly situated commercial customers. KCPL was allowed to intervene. The district court summarily denied the petition, stating: “The petitioner’s argument is predicated on the premise that the utility had an affirmative duty to inform the petitioner of the existence of the initial EDR. Under existing law there is no such duty. The court finds and determines that the petitioner is not qualified to receive service under KCPL’s current ÉDR; that the petitioner was not eligible to receive notice under the initial EDR because it never requested such service prior to the cancellation of the EDR rider; that, under the law, the petitioner had constructive notice of the existence of the EDR and that the subject utility had no duty to provide individual notice to the petitioner of the existence of the EDR ” SCOPE OF REVIEW Our scope of review of an administrative order dismissing a petition is whether the agency has erroneously interpreted or applied the law. K.S.A. 77-621(c)(4). Grindsted contends that the KCC order is unlawful and unreasonable. As noted previously, Grindsted’s action did not survive KCPL’s motion to dismiss for failure to state a claim for which relief may be granted, K.S.A. 60-212(b)(6). When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff’s complaint. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim. In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff’s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened or if these allegations are contradicted by the description itself. Bruggeman v. Schimke, 239 Kan. 245, 247, 718 P.2d 635 (1986); Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, Syl. ¶¶ 1, 2, 3, 620 P.2d 837 (1980). DISCUSSION Grindsted additionally argues that (1) the KCC order violated the filed rate doctrine, (2) a duty to disclose tariff options is required by a 1983 KCC order regarding billing practices in Docket No. 114,337-U, and (3) KCPL had a duty to disclose under its own rules and regulations. These arguments were not raised before the KCC. K.S.A. 66-118b provides that “[n]o cause of action arising out of any order or decision of the [KCC] shall accrue in any court to any party unless such party shall petition for reconsideration .... No party shall, in any court urge or rely upon any ground not set forth in the petition.” In Peoples Natural Gas v. Kansas Corporation Commission, 7 Kan. App. 2d 519, 526, 644 P.2d 999, rev. denied 231 Kan. 801 (1982), the court stated: “K.S.A. 66-118b requires that there be set forth in an application for rehearing the specific grounds upon which the applicant considers the order to be unlawful and unreasonable. The allegation of grounds must be sufficiently specific and direct to apprise the commission and opposing parties of the actual points relied on. Any ground not set forth in the application for rehearing cannot be relied upon in judicial review proceedings. It is not necessary that in an application for judicial review the grounds upon which the applicant considers the order to be unlawful or unreasonable be stated in precisely the same language used in the application for rehearing; however, any ground not specifically and directly alleged in the application for rehearing may not be raised in an application for judicial review. A general or mere allegation in the application for rehearing of unlawfulness or unreasonableness is insufficient to raise an issue for judicial review.” Because Grindsted’s arguments were not raised in the petition, they cannot be considered by this court. Tariff Interpretation/Eligibility of Service Under the EDR Grindsted next claims the district court erred in sustaining the KCC’s order dismissing its complaint. Grindsted argues that the KCC improperly interpreted the EDR tariff. Grindsted argues further that the KCC and district court improperly determined that KCPL had no duty to disclose the terms of the EDR to Grindsted. Finally, Grindsted argues that the KCC order, as affirmed by the district court, results in discrimination by allowing similarly situated customers to be served at different rates. KCPL and the KCC counter that (1) the tariff was properly interpreted and Grindsted was not qualified to receive service under either the 1988 or 1991 EDR; (2) the filing of the EDR constituted legal notice to Grindsted and KCPL has no duty to provide actual individual notice of its tariffs to its individual customers; (3) Grindsted’s action amounts to an improper request for a court-imposed duty for utilities to inform individual customers of the most advantageous rates, when the regulation of utilities is legislative in nature; and (4) Grindsted’s claim of discrimination is based upon a nonexistent legal duty to provide actual individual notice to customers of applicable rates. Grindsted first takes issue with the KCC’s determination that the intended purpose of the 1988 EDR was to provide an incentive for industrial expansion by providing incentive rates for eligible customers. We agree with the KCC conclusion that since Grindsted determined to expand its facility without knowledge of the EDR, the EDR could not have been an incentive for the expansion. Therefore, this argument has no merit. Next, Grindsted asserts it was qualified to receive the EDR rate and argues that the KCC misinterpreted the provision of the EDR tariff. With respect to its eligibility for the 1988 EDR, Grindsted acknowledges that one of the requirements for being served under the initial EDR was that the customer must request the EDR. The EDR stated that qualified customers would receive service under the EDR “[u]pon the request of the customer and acceptance by the Company.” Grindsted argues, however, that there is no time limitation specified to make the request. This argument has little merit because even though the 1988 EDR provided no specific time requirement, clearly the request had to be made while the 1988 EDR was in effect. Grindsted concedes that it was not qualified for applicability of' the 1991 EDR. The 1991 or current EDR provides that “expanded facilities . . . committed to operation prior to the effective date of this Rider are 'ineligible for service under this Rider . . . Customers receiving service under this Rider must qualify under the criteria of this Rider or have been served under the superseded Rider on December 31, 1991.” Since the Grindsted expanded facility became operational in May 1990, long before the effective date of the current Rider, it is ineligible for service under the 1991 EDR unless it had already been served under the initial 1988 EDR. It is undisputed that Grindsted never received service under the initial EDR; therefore, Grindsted is not entitled to service under the 1988 or current EDR. Duty to Inform The central issue in this case is whether KCPL had a duty to inform Grindsted of the existence of the EDR tariff at the time the architectural firm submitted plans for the Grindsted expansion. Grindsted argues that the fault for the delayed request for service under the 1988 EDR lies with KCPL because the utility did not inform Grindsted of the existence of the EDR. In other words, although Grindsted’s complaint contains no allegation that KCPL had a duty to provide actual notice to customers of available or the most advantageous rates, Grindsted’s argument is based upon the existence of a such duty. Grindsted cites numerous authorities to support its assertion that KCPL had a duty to disclose the existence of the EDR. However, when these authorities are analyzed, the resulting conclusion is that (1) filing the EDR tariff with the KCC constituted sufficient constructive notice of the EDR to Grindsted; therefore, actual notice was not required and (2) no jurisdiction has judicially imposed a duty to inform individual utility customers of the most advantageous tariffs. Some of the cases relied upon by Grindsted are based upon requirements imposed legislatively, pursuant to statutes, regulations, or tariffs, that do not exist under Kansas law. Belozer Poultry Farms, Inc. v. Portland General Electric Company, 134 Pub. Util. Rep. 4th (PUR) 288, 293 (Or. 1992), involved a state regulation requiring the utility to assist the consumer in selecting “the most advantageous rate to meet individual service requirements.” Crownover Lumber Company, Inc. v. Columbus Southern Power Company, 141 Pub. Util. Rep. 4th (PUR) 506, 508, 511 (Ohio 1993), involved a tariff which stated that if a customer qualified for more than one rate, “the Company will endeavor to advise him as to which rate schedule is the most advantageous for the prospective service.” In addition, an Oregon regulation required the utility to provide information about alternative rate schedules upon request. El Paso Electric Co. v. Raynolds Holding Co., 100 S.W.2d 97 (Tex. Comm. App. 1937), provides no support for Grindsted’s argument that KCPL had a legal duty to inform it of the EDR because that was a case involving a miscalculation of a customer’s bill under the applicable tariff. It is noteworthy that the Texas Commission of Appeals stated in that opinion: “We do not intend to hold that public utility companies in every instance are under a legal obligation, prior to installation of service, to see that customers receive the most economical service and rates.” 100 S.W.2d at 102. City of Commerce v. Duncan & Godfrey, 157 Ga. App. 337, 277 S.E.2d 266 (1981), is the only case cited by Grindsted which provides some support for its duty to inform claim. The facts in Duncan ir Godfrey, however, are distinguishable because the case dealt not with a tariff which had been filed with and approved by the appropriate regulatory authority, but a municipal policy of allowing customers to install demand meters. In Duncan & Godfrey, the standard rate by which the city billed for electricity was based upon the number of kilowatt hours consumed, as measured by a standard meter. In 1974, the city established a policy of allowing commercial customers who consumed more than 1,000 kilowatt hours per month the option of being billed on the basis of peak demand with a special meter. The customer made constant complaints about the cost of electricity and was never informed about the existence of the policy. There was no indication that these rates were tariffs filed with a local utility commission. Other authorities cited by Grindsted are not persuasive: Neither Hughes Aircraft v. North American Van Lines, 970 F.2d 609 (9th Cir. 1992), nor Welliver v. Federal Exp. Corp., 737 F. Supp. 205 (S.D.N.Y. 1990), discusses the concept of legal notice of filed and approved tariffs. Wildish Sand & Gravel v. Northwestern Natural Gas Co., 103 Or. App. 215, 796 P.2d 1237 (1990), rev. denied 311 Or. 87 (1991), on the other hand, provides support for the proposition that there is no duty to provide affirmative individual notice to a customer of optional rates in the absence of any specific regulatory or tariff provisions requiring such notice. The Wildish case not only involved Oregon statutes specifying that “the utility shall assist applicant or customer in selecting die most advantageous rate” but also provided that “[t]he applicant or customer shall be responsible for making the final selection of a rate schedule.” 103 Or. App. at 218 n. 1. (These regulations are similar to KCPL rules cited above which place the burden on customers to inform themselves regarding the most advantageous rates.) The plaintiff in Wildish made the same argument made by Grindsted — that the utility had a duty to inform it about an optional rate and that the utility discriminated against it by failing to do so. In rejecting this argument, the court held that Oregon’s anti-discrimination statute “does not impose an affirmative duty on defendant to inform customers of rates in the absence of a specific request for that information. At most, it prohibits making information about prices available to some customers and not to others.” 103 Or. App. at 220. The Oregon court held that “[a]ll of defendant’s eligible customers, however, had equal access to the information contained in Schedule 55.” 103 Or. App. at 220. In Southeastern Land Co. v. Louisville G. & E. Co., 262 Ky. 215, 90 S.W.2d 1 (1936), the customer made the argument that the company had a duty to provide individual notice of an optional rate to its customers. The Kentucky court, however, held that the com pany s filing of the rate schedules with the board of public works was all the notice necessary to be given the customer and that the rates were, at all times, available. 262 Ky. at 221-22. Gulf, Colorado & Santa Fe Ry. Co. v. McCandless, 190 S.W.2d 185 (Tex. Civ. App. 1945), involved a shipper’s choice of rates under a filed rate schedule. The Texas court held: “It is not necessary under the law that a shipper be told he has a choice of rates at the time he offers the goods for shipment and signs the contract. He is presumed to know the provisions as set out in the schedule on file.” 190 S.W.2d at 186. In Spear & Co. v. P.S.C., 105 Pa. Super. 240, 161 A. 441 (1932), the Pennsylvania court approved language in the report of the Public Service Commission which stated: “ ‘Complainant contends further that if optional rates are proper, it is the duty of the company to calculate which will be the cheapest for each consumer and to bill him upon that basis. In practice, such a procedure would be well nigh impossible. A utility had the duty to make proper classifications of its service and to prescribe rates accordingly, but having done this and having made all proper information available to its patrons, its obligation has been met. . . . The choice between two such reasonable rates may properly be left to the consumer under ordinary circumstances.’ ” 105 Pa. Super, at 242-43. Pantebakos v. Company, 81 N.H. 441, 442, 128 A. 534 (1925), dealt with a customer’s complaint that the company “failed to use reasonable means to make him comprehend how great a saving he would make if he installed a second meter.” The New Hampshire court held that the company’s only duty was to file its rates and charges with the proper authority. In Re New York Telephone Company, 133 Pub. Util. Rep. 4th (PUR) 208, 210 (N.Y.1992), the regulation stated: “Where alternate service which may meet an applicant’s requirements is available, the utility shall make a reasonable effort to advise the applicant of the most economic service available and to assist the applicant in his choice of service.” Here, it is undisputed that both the 1988 and 1991 EDRs were filed with the KCC and were approved according to law. Under the circumstances, does the filing with the KCC constitute sufficient constructive knowledge to Grindsted of the EDR or is actual notice of the tariff required to the customer? As the previously cited cases hold, the general rule is that filing a tariff provides the requisite notice. See Turner Lumber Co. v. C., M. & St P. Ry., 271 U.S. 259, 70 L. Ed. 934, 46 S. Ct. 530 (1926); see also Chicago & Alton R.R. Co. v. Kirby, 225 U.S. 155, 56 L. Ed. 1033, 32 S. Ct. 648 (1912) (lack of knowledge of published rates and schedules is no defense; one is presumed to have known); Herring v. Alabama Great Southern R. Co., 236 Ala. 618, 621, 184 So. 180 (1938); Warner v. Southwestern Bell Telephone Company, 428 S.W.2d 596, 601 (Mo. 1968); Mellon v. Stockton & Lampkin, 225 Mo. App. 122, 125, 35 S.W.2d 612 (1931); In re Application of Saddle River, 71 N.J. 14, 29, 362 A.2d 552 (1976) (provisions of a tariff are binding on a customer whether the customer knows them or not); Essex Cty. Welfare Bd. v. N.J. Bell Tel. Co., 126 N.J. Super. 417, 315 A.2d 40 (1974); First Cent. Serv. Corp. v. Northern Bell Tel., 95 N.M. 509, 511, 623 P.2d 1023 (Ct. App. 1981); Southwestern Bell Telephone Co. v. Rucker, 537 S.W.2d 326, 331 (Tex. Civ. App. 1976); Alcazar v. Southwestern Bell Telephone Company, 353 S.W.2d 933, 936 (Tex. Civ. App. 1962); and Wadel v, American Airlines, 269 S.W.2d 855, 857 (Tex. Civ. App. 1954) (fact that tariff is on file with proper authorities is binding regardless of customer’s lack of knowledge and company’s failure to inquire). In Kansas, the regulation of public utilities, is legislative — not judicial. Kansas Gas & Electric Co., v. Kansas Corporation Comm’n, 239 Kan. 483, 491, 720 P.2d 1063 (1986); Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 232-33, 440 P.2d 660 (1968). Tariffs are those terms and conditions which govern the relationship between the utility and its customers. Public utilities in this state are required to file their tariffs with the KCC. K.S.A. 66-101c. Rates, fares, tolls and charges imposed by a public utility upon its customers are required to be just and reasonable, not unjustly or unreasonably discriminatory and not unduly preferential. K.S.A- 66-101d. Tariffs filed with regulatory agencies must comport with any conditions, schedules, and provisions authorized by the agency, and amended tariffs and schedules of rates are not effective unless approved by the KCC. Tariffs duly filed, however, generally bind both the utility and the customer. Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. 375, 377, 664 P.2d 798 (1983). A legally established tariff should be construed in the same manner as a statute. Shehi v. Southwestern Bell Telephone Company, 382 F.2d 627 (10th Cir. 1967). Tariff schedules are to be construed as a whole, including footnotes, from the ordinary and popular meaning of the words used. Raymond City Coal & T. Corp. v. New York Cent. R. Co., 103 F.2d 56 (6th Cir. 1939). Interpretation of tariffs should be reasonable and, preferably, consistent with the purpose of the tariff. Coca-Cola Co. v. Atchison, T. & S.F. Ry. Co., 608 F.2d 213 (5th Cir. 1979). Grindsted concedes that Kansas law imposes no direct duty to disclose tariff alternatives to customers who inquire about rates but argues such a duly can be implied from Kansas statutes regarding public accessibility to rate information. This argument has no merit. In Kansas, KCPL is required to publish and file with the KCC copies of all schedules of rates. K.S.A. 66-101c. Tariffs duly filed generally bind both the utility and the customer.- In addition, the KCC requires that KCPL prepare a summary of its current tariffs and notify its customers of its availability once a year in a monthly bill. It is undisputed that KCPL exceeded this requirement by providing such notice to customers every month. Therefore, KCPL’s notice of rates complied with Kansas law. To summarize, Grindsted is asking this court to impose additional disclosure requirements upon public utilities which do not exist in Kansas. Grindsted’s claim for relief is based solely upon its argument that (1) it would have requested the applicability of the 1988 EDR (and therefore the 1991 EDR) if it had known about it and (2) it did not know because KCPL failed to inform Grindsted of the EDR. In its brief before the district court, Grindsted acknowledged that it was requesting judicial imposition of a requirement that, under Kansas law, must be legislatively imposed. Grindsted stated: “Kansas law does not appear to provide any express provisions concerning the duty of a public utility to disclose its tariffs.” Grindsted stated in its petition for reconsideration before the KCC: “Grindsted does not dispute that the law of the land presently charges parties with constructive notice of filed tariffs. However, Grindsted submits that the Commission should adopt ... a policy . . . that requires certain disclosure where alter native tariffs are available.” No other jurisdiction appears to have and we decline to do so. Turning to Grindsted’s claim of discrimination, we note the claim depends upon whether there is an affirmative duty on KCPL’s part to notify Grindsted of the EDR. The court in Wildish Sand & Gravel, 103 Or. App. at 220, relied upon by the KCC, held that Oregon’s anti-discrimination statute (similar to the one in Kansas), at most, prohibited making information about prices available to some customers and not to others. The Oregon court held that “[a]ll of defendant’s eligible customers, however, had equal access to the information contained in Schedule 55.” 103 Or. App. at 220. Similarly, here, all of KCPL’s customers had equal access to information about the EDR, which was all that is required under Kansas law. Furthermore, assuming Grindsted could have qualified for the EDR, the responsibility for selecting optional rate schedules under KCPL Rule 6.03, which is part of KCPL’s tariffs and approved by the KCC, was Grindsted’s. In conclusion, Grindsted was not entitled to the 1988 EDR tariff because its expansion was planned without knowledge of the EDR and because Grindsted did not request it as required; therefore, the EDR was not an incentive in the decision to expand. Grindsted did not qualify for the 1991 EDR under its term. Finally, KCPL had no duty to inform Grindsted of the existence of the EDR tariff. A legally filed tariff constitutes constructive notice. Under the circumstances, Grindsted’s claim of discrimination fails. Since Grindsted’s complaint faded to state a claim for which relief could be granted, the decision of the district court is affirmed. Affirmed.	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Opinion by Green, C.: This case was a consolidation of two actions commenced by the First National Bank of Fort Scott against Charles H. Elliott, in the district court of Cowley county, upon two notes made by him to the order of the Eureka Bank, and in its possession as indorsee. Each note was dated October 7,1881, one being for $1,000, and due in 365 days after date, and another for $825, due in 540 days after date. The allegations of the petitions were that the defendant was indebted to the plaintiff upon certain notes, which were set out in the petition in full, with all indorsements thereon. The $1,000 note contained the following indorsements: “ Without recourse.— Edwin Tucker, Cashier. J. D. Hill.” The $825 note was indorsed as follows: “ John Berry. Without recourse. — Edwin Tucker, Cashier. J. D. Hill.” The plaintiff further alleged that it was the owner and holder of each of the notes, and entitled to the proceeds thereof, and then stated the amount due upon each note. The defendant interposed the defense that, while the notes on their face were made payable to the Eureka Bank, the maker executed and delivered them to John Berry as part payment of the purchase- price of a farm ; that the notes were not made for the benefit of the bank, or delivered to it, but were in fact made for the benefit of Berry and delivered to him; that Berry was indebted to the defendant in a sum in excess of the amount due upon the notes; that such indebtedness was a proper offset to the notes in the hands of Berry; and that the plaintiff and its immediate indorser, J. D. Hill, had full knowledge and due notice of all of the equities existing between the maker and Berry at the times, respectively, the notes came into the hands of Hill and the plaintiff; that the plaintiff was not the real owner of the notes; and that they were each the property of J. D. Hill. This portion of the defendant’s answer was duly verified. A trial was had, and a verdict and judgment rendered for the defendant. The bank brings the case to this court, and the first error assigned is the failure of the court to instruct the jury to find for the plaintiff. It appeared in the progress of the trial, from the evidence of the cashier of the plaintiff, that the notes were discounted and received from J. D. Hill on the 23d day of September, 1885; that the notes were paid for by placing to the credit of Hill, as a depositor of the bank, the sum of $1,825; that the bank at the time had no knowledge of the business transactions between Elliott and Berry. The defendant below was permitted, over the objection of the plaintiff, to give evidence in his own behalf of a state of accounts between" himself and John Berry, from which it appeared that the latter was indebted to the defendant in a sum greater than the amount due on the two notes sued on. One other witness was called by the defendant, apparently for the purpose of showing that J. D. Hill, plaintiff’s immediate indorser, was the owner of the $1,000 note. Upon this state of facts, the plaintiff in error contends that, under the rule laid down in the case of Mann v. Second National Bank, 34 Kas. 746, this was an insufficient defense. The doctrine stated in that case was this : and held, claims that the holder of the instrument is not a holder for value, it devolves upon the maker to prove the same.” “Preliminarily we would state that the mere possession of a negotiable instrument, payable to order and properly indorsed, is prima facie evidence that the holder is the owner thereof; that he acquired the same in good faith, for full value, in the usual course of business, before maturity, without notice of any circumstances that would impeach its validity, and that he is entitled to recover, as against any of the antecedent parties. (1 Daniel. Neg. Inst., § 812; Ecton v. Harlan, 20 Kas. 452; Lyon v. Martin, 31 id. 411; Rahm v. Bridge Manufactory, 16 id. 530.) Where a maker of such an instrument, so indorsed The defendant in error insists that, under a former decision of this court, in the case of Hadden v. Rodkey, 17 Kas. 429, the pleadings in this ease permitted him to prove the equita- 1 ble defenses and set-offs in the answer, claiming that the plaintiff must allege and prove that the notes were transferred by indorsement, if he desired to avoid such equities or defenses as might be pleaded; that the allegation of copies of the indorsements on the notes is not sufficient, the contention being that there should be apt allegations of the manner in which the notes were transferred by indorsement. The petitions set out copies of the notes sued upon and the indorsements, alleging that there were no other indorsements thereon. It was further alleged that the plaintiff was the owner and holder of the notes, and entitled to the proceeds. This we think sufficient to show that the notes were transferred by indorsement to the plaintiff. The rule, as we understand it, is, that if suit be brought by an indorsee, and the note is payable to order, the plaintiff should allege the indorsements and state the fácts that give him title. It has been held to be unnecessary to allege title through all of the intermediate indorsements; but. title by indorsement to himself is sufficient, and this is what the petitions in effect do in this case. (Bliss, Code Pl., §§ 232-235; Reeve v. Fraker, 32 Wis. 243. It is elementary that when negotiable paper, payable to order, is indorsed and delivered to the indorsee, the legal title passes to him, and he may maintain an action thereon. The pleadings show that these notes were indorsed; that the plaintiff was the owner, and there was so much due it upon the obligations. Section 123 of the code provides that, in an action of this kind, it is sufficient for a party to give a copy of the instrument, with all the credits and indorsements thereon, and state that there is due him on such instrument, from the adverse party, a specified sum, which he claims, with interest. It would seem that under this section, where the indorsements are alleged, and also title, there need be no express allegation of the man-’ ner of the indorsement by which the notes were transferred to the plaintiff. The defendant could not have been prejudiced or surprised by an omission to expressly allege the particular method or manner of the indorsements by which the title was transferred. It was manifest from the pleadings that such transfers were by indorsement. The notes in question seemed to have been properly indorsed by the payee, and, there being no date, the presumption of law is, that they were indorsed before maturity, and were not, therefore, subject to the defenses claimed by the defendant below. (Lyon v. Martin, 31 Kas. 411.) The same presumption would attach to the intermediate indorsee, Hill, from whom the plaintiff purchased the notes, and the fact that the bank gave him credit for the proceeds of the notes as a depositor, would give it such an interest as to entitle it to maintain an action against the maker. There was no competent evidence to show that Hill took the notes subject to the infirmities claimed. The purchaser of a negotiable instrument from a bonojfide holder acquires as good a title as the innocent holder had, and may recover thereon, although he, too, may have had notice of such infirmities in the note when he took it. (Bodley v. National Bank, 38 Kas. 59.) The trial court should have instructed the jury to return a verdict for the plaintiff. We recommend a reversal of the judgment. By the Court: It is so ordered. All the Justices concurring.	[ -14, 104, -24, 94, 26, -32, 42, -102, 65, -31, -76, 83, -23, 7, 17, 97, -90, 45, 85, 104, -26, -73, 39, -24, -46, -77, -23, -59, -79, 79, 100, -44, 13, 20, -118, 93, -30, -64, -63, -40, -50, 5, 41, -32, -45, 0, 48, -81, 20, 15, 113, 44, -12, 59, 20, 67, 73, 45, -21, -69, -48, -15, -104, 68, 93, 22, -109, 101, -104, 70, -56, 42, -112, 53, 1, -72, 122, -90, 6, 84, 43, -71, 13, 102, 34, 49, -75, -17, -128, -116, 38, -9, -97, -89, -42, 72, 3, 45, -66, -99, 127, 21, -122, -4, -7, 15, 21, 108, 7, -54, -42, -110, -81, 124, -98, 67, -5, 7, 48, 97, -115, 50, 92, 87, 125, -101, -50, -12 ]
Opinion by Strang, C.: Action for damages under the stock law of 1874. December 14, 1887, Lavina Shumaker was the owner of a farm, upon which she resided, in Miami county, Kansas. At that time the Missouri Pacific Railway Company operated a line of railroad through said county, and thi’ough and across the said farm of Lavina Shumaker. She alleges that the right-of-way of said railroad through her farm was not sufficiently fenced; and that, in the operation of its train of cars upon said railway across her farm, the defendant below, on said 14th day of December, 1887, killed two cows and injured a bull, the property of her, the said Lavina Shumaker, whereby she suffered loss and was damaged in the sum of $155. Demand was made upon the company for the amount of damage so sustained, which was refused, and suit therefor was commenced July 5, 1888, before a justice, who rendered judgment for the plaintiff. Defendant appealed, and the case was tried in the district court of Miami county, before the court and a jury, at the October term, 1888, resulting in a verdict for the plaintiff below, in the sum of $120 as damages, and $35 as a reasonable attorney’s fee. A motion for a new trial was overruled, and the company brings the case up for review. The first contention of the counsel for the plaintiff in error is, that the court erred in permitting the witness W. W. Magruder to give his opinion of the value of the bull alleged to have been injured. It is insisted that the witness had not shown himself competent to answer the question put to him. The question was as follows: “You may state what the value of a Hereford bull three years and a half old, of average size, was in the community in which she lived last December. A. I should think that bull ought to have brought $60 for breeding purposes, for which I bought him and for which I sold him.” Perhaps a sufficient answer to the objection interposed to this evidence is, that no motion was made to strike out the answer to the question objected to. It will readily be seen that the answer is not responsive to the question, and hence, though the question may be objectionable, it requires a motion to strike out to get rid of the answer, and a refusal by the court, on which to base an objection. The question was general and hypothetical, while the answer relates specifically to the bull in suit, and puts a value on him for a particular purpose, or use, not mentioned in the question. But a review of the examination of the witness Magruder, we think, shows him qualified to testify as an expert, on the question of the value of the bull in suit. He testified that he was a farmer, had been engaged in raising, buying and selling cattle since 1848, during which time he had handled blooded and other stock; that he lived but 15 or 16 miles from Mrs. Shumaker; that lie knew what price cattle were selling for from time to time in Miami county; that he thought he knew the price of cattle in the neighborhood of Mrs. Shumaker at the time her cattle were injured; that he judged from the price he and others around him were selling cattle for at that time; that he-.had bought the bull in question and sold him to Mrs. Shumaker. We think this evidence discloses such an acquaintance on the part of Magruder with the cattle business in Miami county, and in the general neighborhood of the locality where the injury occurred, as to qualify him to testify as an expert upon the question of the value of cattle there at that time, and if so, then neither the question objected to, nor the answer thereto, was objectionable, for any reason given. The answer, then, was objectionable only because it was not responsive to the question, and as there was no motion to strike it out, the plaintiff in error cannot be heard to complain on that account. In the second assignment, it is contended that the cattle of Mrs. Shumaker were running at large when injured, and that, therefore, no recovery can be had so far as any injury to the bull is concerned, because he was permitted to be and run at large in violation of the statutory law of the state; that by permitting her bull to run at large Mrs. Shumaker was guilty of such negligence as defeats any right of recovery on her part, so far as any injury to the bull is concerned. The question, under this assignment of error, then is, was the bull running at large, within the meaning of our statute, at the time of his injury by the company’s train ? Paragraph 6725 of the General Statutes of 1889, so far as it relates to this question, reads as follows: “If any bull over one year old ... be permitted to run at large, the owner of the same shall be guilty of a misdemeanor, and on conviction thereof shall be fined for the first offense §5, and for every subsequent offense shall be fined $10.” If the bull was running on the inclosed premises of Mrs. Shumaker, he would not be running at large within the mean ■ing of the above paragraph, though the right-of-way of the railway company through her farm was not fenced. (Gooding v. A. T. & S. F. Rld. Co., 32 Kas. 150.) Within the meaning of the above case, we assume that the bull would not be running at large under ¶ 6725 above quoted, though, by an -arrangement between Mrs. Shumaker and the occupant of the Stevens farm, he was permitted to pass from her farm upon the Stevens farm for grazing purposes, provided the latter was inclosed. The evidence shows that these farms lie adjacent to each other, and each farm was inclosed with a sufficient fence on all sides except on the south side; that the Shumaker -farm is fenced part of the way on the south side, and the : stream known as “Wea. creek” incloses this farm the remainder of the way on that side; and this stream also abuts the whole rsouth side of the Stevens farm, thus completing the inclosure of that farm. The evidence, in this connection, shows that -,the stream itself, being wide and deep, and its banks high and abrupt, is of such a character that the cattle do not cross it, except occasionally when the stream and the ground constituting the approaches thereto, where the banks are not too high and abrupt to admit of passage, are frozen solid enough to bear their weight; that they cannot cross at all when not frozen over without swimming, the banks, where low, being miry and difficult of passage. From a summary of the evidence on this question, we think it may be said that, with the fences and Wea creek surrounding the Shumaker and Stevens farms, they were enclosures within the meaning of Gooding v. A. T. & S. F. Rld. Co., above cited. There is nothing in the statute that requires a bull over one year of age to be confined, nor is there anything prescribing the character of restraint to be thrown around such an animal. The statute simply prescribes that such an .animal shall not be permitted to run at large. Any fence, barrier or obstruction surrounding a field or tract of land in which such animal is permitted to run, that is sufficient to •restrain him, we think is sufficient to constitute the field an enclosure. For instance, if a ditch should surround a field on all sides sufficient to restrain stock, we would think the field an enclosure, and that an animal therein would not be at large, under the statute. The evidence in this case shows that the stream on the south side of the Stevens farm, and partly on the south side of the Shumaker farm, was sufficient to restrain stock, and that such farms were therefore enclosures, and the bull in suit was not running at large when injured. (See also ¶3063, General Statutes of 1889.) This conclusion disposes of the question relating to instructions ; and as there is no question but that the evidence supports the verdict and judgment upon the general features of the case, it is recommended that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.	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Opinion by Simpson, C.: Four actions were commenced in the court below to foreclose so many mechanics’ liens upon property known as “Lot No. 13, on Goethe avenue, in Getto’s second addition to the city of Wichita.” All parties holding mortgages upon the property were made defendants in these actions. These suits were consolidated, tried by the court, the order of priority of all liens was determined, and the final decree established the rights of all parties. Two of the parties bring questions affecting their rights to this court for review. The material facts are, that on the 23d day of May, 1883, Peter Getto, who was the owner of said lot No. 13, sold by contract said lot to A. H. Peavey, for the sum of $1,100. Peavey paid $50 cash, and agreed to give his note, due in one year, for the balance of the purchase-money, secured by a mortgage on the lot. It was agreed between Getto and Peavey that the latter should build a house on the lot, that Getto should permit Peavey to obtain a loan on the lot and give a first mortgage as security therefor, and that Getto’s mortgage for the purchase-money should be subject to the mortgage given by Peavey to obtain the money with which to build a house. Acting on this agreement, Peavey secured a loan from one George C. Strong, to secure which he executed two mortgages to Strong, one for $1,000 and one for $150. Getto having previously executed a deed for the lot to Peavey, and delivered it to Strong, Peavey and wife executed and delivered mortgages to Strong and Getto, the mortgage to the latter reciting that it was subject to mortgages to Strong for $1,150. The deed from Getto to Peavey and the mortgages from Peavey and wife to Strong were deposited for record on the 4th day of June, at 5:20 p.m. The mortgage from Peavy and wife to Getto was deposited for record on the same day, at 5:30 P.M. On this state of facts, omitting the details as to the mechanics’ liens, the trial court found as follows: “The court finds that the said defendant, A. H. Peavey, is indebted to the said J. Friend, plaintiff, in the sum of $106.33; to plaintiff Robert Carson, in the sum of $39.51; to plaintiff H. C. Hawkins, $30; to plaintiff C. F. Hawley, the sum of $47.64; to Oliver Brothers, $567.30; to A. J. Hurst, $74.38; to Trimble Brothers & Threlkeld, $29.96; to Goodyear & Co., $43.42; to Peter Getto, $1,270.50; to James Melrose, $1,250; to Coleman Rogers, $187.50; that all of said sums, except the three last named, are for work, labor and materials furnished said A. H. Peavey by said named parties for the purpose and use in the erection of a certain building on the property in controversy, to wit, lot 13, on Goethe avenue, in Getto’s second addition to the city of Wichita, in Sedgwick county, Kansas, and that said parties all filed their proper and verified statements of the work, labor and materials in the office of the clerk of the district court of Sedgwick county, Kansas, in the manner and within the time provided by law in relation thereto; that at the time of the commencement of said actions to foreclose said mechanics’ liens, all of said parties aforesaid had valid and existing liens upon the premises described as aforesaid to the amount of their respective claims aforesaid; that the said last three named parties, at the time of the commencement of this action, had liens upon said premises aforesaid to the amount of their respective claims by virtue of mortgages thereon executed by said A. H. Peavey to themselves or their assignors. “ The court further finds that, as to the priority of said liens, the mortgage executed by said A. H. Peavey to said Peter Getto should be declared a first and prior lien on the premises in controversy, and that the liens of said J. Friend, Robert Carson, H. C. Hawkins, C. F. Hawley, Oliver Brothers, Trimble Brothers & Threlkeld, A. J. Hurst and Goodyear & Co. should be declared second liens upon said premises; that the mortgage given to George C. Strong and assigned to Melrose should be declared a third lien upon said premises, and that the mortgage given to George C. Strong and assigned to Coleman Rogers should be declared a fourth lien upon said premises; that said James Melrose should be subrogated to the rights of said Peter Getto in said first mortgage lien to the amount of $1,000, with interest thereon at the rate of 12 per cent, per annum from the 1st day of June, 1887, and that said Coleman Rogers should be subrogated to the rights of said Peter Getto in the balance of said first mortgage to the amount of $20.50, with interest thereon at the rate of 12 per cent, per annum from the 1st day of. June, 1887, and the balance of said Coleman Rogers’ interest in said mort gage should be declared to follow the liens of all said parties who are heretofore declared to be second-lien holders on said premises; that said Peter Getto’s mortgage should be declared a last lien upon said premises, thereby following the interest of all the said parties claiming a lien upon said premises as aforesaid. “The court further finds that each of said mortgages held by Getto, Melrose and Rogers has the words ‘appraisement waived’ therein inserted, and that said parties last named are now entitled to have said mortgages foreclosed, and the right to enter a further judgment for the foreclosure of said mortgages or any of them for the sale of said property thereunder, without appraisement, is hereby expressly reserved to said Getto, Melrose and Rogers respectively, in case the said property should fail to sell within six months from the date hereof for two-thirds of the appraised value thereof under the terms of the present judgment. “It is therefore considered, ordered and adjudged by the court that said plaintiff J. Friend, have and recover judgment against said A. H. Peavey in the sum of $106.33, with six per cent, from this date.” To this judgment exceptions were saved by Getto and Rogers, and they bring the questions affecting their interests to this court for review. Getto claims that the trial court erred in deciding that his purchase-money mortgage was a junior lien to the mortgages of Melrose and Rogers, and the mechanics’ liens. I. The facts disclosed by the record in relation to the mechanics’ liens are as follows: It is admitted in the answer of Getto that he sold said lot No. 13 to A. H. Peavey, on or about the 1st day of May, 1887. Hannah, under contract with Peavey, commenced to build a stone foundation for a large house on the 17th day of May, 1887. Peavey bought lumber for the construction of a barn on the lot from Oliver Bros., early in May. These facts show possession of the lot by Peavey in pursuance of his contract of purchase farom Getto, and are sufficient of themselves to sustain the priority of the mechanics’ liens on the equity of Peavey, as they attach from the time of the commencement of the building by the express terms of the statute, and as declared in the case of Thomas v. Mowers, 27 Kas. 265. Of course, the priority of these lieDs on the equity of Peavey cannot be successfully controverted, but how they are affected by the subsequent conveyances and mortgages is the serious question with which we have to grapple, and the case cited above does not help us in any respect. The case of Seitz v. U.P. Rly. Co., 16 Kas. 133, is a somewhat instructive one. In its main features it resembles the one we are considering. In that case as in this, the contract for labor and materials was made with the owner of the equitable title. There had been only a partial payment made of the purchase-money by the holder of the equitable title. The original contract for purchase and sale of the premises was in parol. At the time labor was performed and material furnished, possession was shown under the verbal contract. A mortgage was subsequently executed to secure the balance of the purchase-money as in this case. The cases differ in this: in one a conveyance was made vesting the legal title in the debtor; in the other no conveyance of the legal title was made. On this state of facts this court say, arguendo: “That the mechanics’ liens operated upon the whole of the estate which the person procuring the labor and the materials may have in and to the property for which he procures the same, whatever may be the character of the estate, but that such lien cannot operate upon anything more than such estate; and, as far as it does operate, it is the paramount lien upon the enhanced value given to such estate by the labor and materials.” The law provides (§630, Code): “Such liens shall be preferred to all other liens or incumbrances which may attach to or upon such land, buildings, or improvements, or either of them, subsequent to the commencement of such building.” Another case that must not be overlooked in the consideration of this one is that of Lumber Co. v. Sehweiter, 45 Kas. 207. Some of the material facts in that case are, that Sehweiter sold Jones a lot on the 29th of May, who agreed to build a house on it. When the house was inclosed, Sehweiter was to convey the lot to Jones, and Jones should have the privilege to place a mortgage thereon, which should be a first lien, and should execute a mortgage to secure the balance of the purchase-money ; and until the execution, delivery and record of the deed and mortgage, Jones should keep the lot clear of all liens, taxes, and judgments. It was agreed between Schweiter and Jones that the title to the lot, both legal and equitable, should remain in Schweiter until the conveyance and mortgages were made. On the 2d of May Jones contracted with the Chicago Lumber Company for the lumber and material with which to build a house on the lot, and a delivery of the material was begun on that day, and completed on the 27th of June. On the 20th of May Schweiter executed and delivered a deed to Jones of the lot, and at the same time Jones and wife executed mortgages for money borrowed and for 'the balance of the purchase-money of the lot. All these instruments were recorded on the 23d of May. On September 9th the lumber company filed its statement, claiming a lien for the lumber and materials used in the construction of the house, and at the trial the district court found that the mortgage securing the borrowed‘money was the first lien, Schweiter’s mortgage the second, and the lumber company’s the third. The lumber company brought the case to this court, but the judgment below was affirmed, great stress being laid in the opinion on the fact that Schweiter retained both the legal and equitable title to the lot until the deed and mortgages were executed. While there was no express stipulation between Getto and Peavey in this case to that effect, the agreement wag that Peavey should execute a mortgage to secure the building fund, which by the consent of Getto should be a first and superior lien to that of Getto for the balance of his purchase-money. By all the ordinary rules of law, those furnishing material to and doing work for Peavey were bound to ascertain the nature and extent of his equity in the lot. To the extent of that equity, whatever it may be, the materials furnished and the work performed are a lien dating from the commencement of the building and prior to all subsequent liens or incum brances, but, in the language of Mr. Justice Valentine, in the case of Seitz v. U. P. Rly. Co., 16 Kas. 133, “A lien upon an estate cannot be greater than the estate itself. A stream cannot rise higher than its fountain.” It seems, therefore, that the operation of the mechanics’ liens must be limited to the equity of Peavey in the lot, and that the trial court erred in determining the priority of liens; the true order being, so far as the legal estate is concerned: First, the mortgage to Mel-rose, second, the mortgage to Rogers; third, the mortgage to Getto; fourth, the mechanics’ liens; and upon the equitable estate of Peavey: First, the mechanics’ liens, and the mortgages following them in the order above stated. II. Another error complained of by both Getto and Rogers is, that the trial court rendered judgments in their favor to bear interest at the rate of 10 per cent, per annum only, when* the notes upon which the judgments are founded bear interest at the rate of 12 per cent, per annum. These notes were, secured by mortgages and bear date on the 1st of June, 1887, payable in two and one-half years after date. The law in force at the time of the execution of these notes was § 6, chapter 51, Comp. Laws of 1885, and it provided: “When a rate of interest is specified in any contract, that rate shall continue until full payment is made; and any judgment rendered on any such contract shall bear the same rate of interest mentioned in the contract, which rate shall be • specified in the judgment; but in no case shall such rate exceed 12 per cent, per annum.” Intermediate the date of the note and the trial of this case, the legislature changed the section of the law above quoted so as to make the concluding words read, “But in no case shall such rate exceed 10 per cent, per annum.” (Laws of 1889, ch. 164, § 5.) The trial court provided in its decree that the judgments rendered on the notes of date June 1,1887, should bear interest at the rate of 10 per cent, per annum. The contention of counsel for plaintiffs in error is, that the amendment of § 6 by the legislature of 1889 only operates on contracts made after the amendment became the law, and could not im pair the obligation of contracts made before that date. This contention is abundantly sustained by repeated decisions of the supreme court of the United States, and our plain duty is to follow these adjudications. These decisions are constructions of a provision of the constitution of the United States that declares that “No state shall pass any law impairing the obligation of contracts.” The pith of all these decisions is clearly expressed by a quotation from the ease of Edwards v. Kearzey, 96 U.S. 595. Mr. Justice Swayne, speaking for the court, said: “The remedy subsisting in a state when and where a contract is made and is to be performed is a part of its obligation', and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the constitution, and is therefore void.” This was said in respect to a provision of the constitution of the state of North Carolina, that exempted personal property of a debtor to the value of $500 from sale'under execution or other final process issued for the collection of any debt; the court holding that the exemption was not valid as regards contracts made before the adoption of the constitution of that state. This rule applies to all state legislation that affects the validity, construction, discharge and enforcement of contracts made before such legislation took effect. (Von Hoffman v. City of Quincy, 4 Wall. 535.) “One of the tests that a contract has been impaired is, that its value has by legislation been diminished. It is not by the constitution to be impaired at all. This is not a question of degree, manner, or cause, but of encroaching in any respect on its obligation dispensing with any part of its force.” (Planters’ Bank v. Sharp, 6 How. 301.) Returning to the facts in this case, it cannot be seriously doubted but that the reduction of the interest on the notes by the decree of the trial court was a material impairment of the obligations of the contracts. If it is once conceded that the legislature of the state, and the courts of the state by virtue of such legislation, can reduce the rate of interest specified in the contract, then there is no limit to such power. In this case 2 per cent, per annum was taken from the rate agreed upon. If this can be done, there is then no legal objection to a reduction of 10 per cent, per annum. If the obligation to pay interest can be impaired, why cannot the obligation to pay a part of the principal be also impaired? The legislature of the state reduced the maximum rate of interest that could be recovered on any contract from 12 to 10 per cent, by this amendment, but we do not suppose that it was within the legislative intent to affect contracts made before the passage of the amended law. It follows that, on all contracts made prior to the amendment of 1889, the old law governs, and to those made after that date, the new law applies. The trial court erred in fixing the rate of interest that the judgment should bear from the time of its rendition at 10 per cent. The judgment creditor is entitled to the rate specified in the contract. There was also error in adjusting the liens, and for these errors we recommend that the judgment be reversed, •and the cause remanded to the trial court to render a judgment as indicated in this opinion. By the Court: It is so ordered. All the Justices concurring.	[ 112, 109, -16, 110, 74, 96, 8, -37, 64, -80, -90, 87, 109, -60, 85, 109, -57, 121, -43, 104, 103, -78, 39, 49, -46, -77, -47, 77, -71, 125, -12, -41, 76, 100, 66, -107, -26, -128, -57, 84, 14, -123, 10, 101, -39, 64, 52, 59, 80, 12, 81, -82, -13, 44, 24, 64, 76, 42, -19, 40, -16, -72, -67, -116, -3, 7, -111, 100, -98, 103, -22, 14, -112, 53, 0, -24, 115, -90, -122, 116, 77, -117, 45, 34, 102, 50, 41, -21, -8, -71, 15, -41, -115, -90, -73, 88, -126, 33, 63, -99, 124, 16, 7, -10, -9, -107, 25, 108, 7, -114, -42, -127, 15, -16, -102, 10, -13, 7, 32, 113, -53, 56, 93, 102, 94, 91, -114, -8 ]
Opinion by Simpson, C.: In an action brought by the Richards & Conover Hardware Company against Joseph Weeks, an attachment was issued out of the district court of Dickinson county, and Miller, the sheriff, levied the order of attachment upon a certain stock of hardware, together with tinners’ tools and materials, as the property of Weeks. This action in replevin was commenced by Weeks against the sheriff to recover possession of the tinners’ tools and materials, they being claimed as exempt to him by virtue of the eighth subdivision of § 3 of the exemption law. The cause was tried by a jury, which returned a general verdict for Weeks, fixing the value of the tools and materials at $500. They also answered special interrogatories, as follows: “1. At the time plaintiff made the assignment to S. G. Cooke, was his principal business that of a hardware and agricultural implement dealer? Ans. It was the principal branch of his business. “2. Did Weeks, prior to the making of his assignment and up to that time, depend principally upon his hardware and agricultural implement business for the support of himself and family? A. He relied upon all as one business. “3. Was Weeks, at the time of said assignment, a practical tinner? A. No. “4. Were the tools in question used in the hardware and implement business of plaintiff? A. Yes, in connection with his business. “5. Did the hardware and implement business of plaintiff consist principally in the buying and selling of goods already manufactured, and did the tinware and so forth, made in plaintiff’s shop, constitute only a small percentage of the goods sold in the entire business of plaintiff? A. The tinware was the smaller part of his business. “6. Was the tinning business of plaintiff carried on independently of his hardware business? A. No. “Q,. Was the business of making tinware and sheet-iron ware run in connection with the hardware business at the time the assignment was made, or was it at that time a separate business? A. All parts of his business were run in connection. “Q,. After making the assignment, did the plaintiff have any other means of support except his tinware and sheet-iron work? A. No.” A motion for a new trial was overruled, and the cause brought here for review. The only question discussed or urged by counsel for plaintiff in error is, whether the tools and stock in trade are exempt under the facts presented. It is shown by the record that after Weeks had made an assignment of his hardware stock for the benefit of his creditors he immediately went to work at the tinning business, and was actually engaged at tin work when the levy was made. He had no other means of support for himself and family than that derived from his tin work. While he was not a good, practical tinner, skilled in all branches of such work, yet he had before the assignment worked some at the business, and had personally used the tools, and at the time the levy was made was engaged in putting a tin roof upon a building. The jury find specially that after he made an assignment of his hardware stock his tinshop was his only means of support. With this state of facts, we have been unable to distinguish this case from that of Bliss v. Vedder, 34 Kas. 57. Indeed, we think the ease is a stronger one for the claimant than the one cited, because of the fact that after the assignment his tools and stock in trade were the only means of livelihood for himself and family. In the case in 34 Kas., Bliss, the claimant of the exemption, was engaged in editing and publishing a weekly newspaper, was engaged in job printing in partnership with one Crosby, and was engaged in the loan, land and insurance business with one Mudgett. The business he was engaged in with Mudgett was entirely disconnected with and dissimilar to his printing business. Bliss was not a practical printer, but to some extent used the printing press and type through the agency of employés. In this case, the sole work of the claimant of the exemption at the time of the levy was in his tinshop; and there is no conflict in the evidence but that the proceeds of such work performed by himself were his sole means of support. It was agreed by the parties in open court that the value of the property involved in this action is as follows: The value of the tools, $300; and the value of the stock in trade, $200. For the reason that at the time of the levy he was actually engaged in the tin-work business, and it was the only means of support he had for himself and family, we hold that the tools and stock in trade were exempt. It is recommended that the judgment be affirmed. By the Court: It is so ordered. All the Justices concurring.	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Opinion by Green, C.: On the 21st day of May, 1886, William M. Duncan sued E. J. Stewart before A. R. Blackburn, a justice of the peace of Harper county, to recover the sum of $58 for services rendered. The justice of the peace issued a summons, which was regular upon its .face, and delivered it to C. M. Bodley, a constable. The summons was returned with the indorsement that service had been made by a copy left at the residence of the defendant. On the return-day the defendant made no appearance, and judgment was rendered in favor of the plaintiff for the amount claimed. On the following day an execution was issued on said judgment and delivered to Bodley, as constable, which was levied upon the property in controversy in this action. On the 12th of June the plaintiff in error brought an action in replevin against Bodley and Stewart to recover the property taken on execution. The defendants in this replevin suit gave a redelivery bond, retained possession of the property, and it was sold under the execution. This replevin action was never tried, but was continued from term to term, until June, 1887, when it was dismissed by the plaintiff without prejudice. This action was commenced in the district court of Harper county on the 19th day of July, 1887, to recover the value of the property sold upon execution by Bodley, as constable. The defendant answered, and set up three defenses: First, a general denial; second, justification under the execution, and, third, the replevin action. The plaintiff demurred to the third ground, which was sustained by the court. The plaintiff then filed a reply to the second defense, denying the judgment, and alleged that Bodley did not serve a copy of the summons upon the plaintiff, but made a false return; that the copy left at the residence of Stewart was signed by C. M. Bodley, justice of the peace; and that no appearance was made by Stewart. It was further alleged that Bodley knew that said return was false. At the January term, 1889, the case was tried by the court, and resulted in a finding and judgment for the defendant, and the plaintiff brings the case here for review. The assignment of error is, that the court should not have overruled the plaintiff’s'demurrer to the evidence of the defendant, and this raises the question as to whether or not the judgment rendered in the case of Duncan v. Stewart, before A. R. Blackburn, justice of the peace, was void. This is the main question in the case. If the judgment was rendered without service, it was void. To determine the question of service, we must consider what was left at the usual place of residence of the defendant. The summons issued by the justice of the peace was regular. The copy served was signed by the constable instead of the justice of the peace. It was addressed to Bodley, as constable, and contained the indorsement that if the defendant failed to appear, judgment would be taken for the sum of $58, with interest at the rate of 7 per cent, per annum from the 21st day of May, 1886, and costs of suit, and signed by A. R. Blackburn, justice of the peace. It could be seen at a glance that Bodley could not have been the justice of the peace and constable too; that his signature to the copy must have been a clerical error. The defendant served lived in the same township where the officers resided, and would be presumed to know who they were; and the fact that the name of the justice of the peace did appear in one place upon the copy, and that the process was addressed to Bodley, was sufficient to inform him that he had been sued. There is no question but that the service would have been set aside if a motion had been made for that purpose; but we are not prepared to say that the judgment was absolutely void, but might have been set aside in a direct proceeding. We conclude, therefore, that the service made upon E. J. Stewart, in the original suit, was only voidable, and not void. (See Bassett v. Mitchell, 40 Kas. 549; Friend v. Green, 43 id. 167.) Holding, as we do, that the judgment rendered in favor of Duncan and against Stewart was not void, but only voidable, there was no error in the trial of this action in the court below, and we therefore recommend an affirmance of the judgment. By the Court: It is so ordered. All the Justices concurring.	[ -80, -20, -8, 13, -72, -32, 40, -102, 67, -125, -78, 83, -83, -62, 16, 99, 99, 105, 117, 105, -50, -73, 23, -25, -14, -77, 65, -43, -75, 77, -12, -42, 76, 32, -62, 85, 102, 74, -51, -42, -114, -124, 40, 100, -39, 8, 52, 57, 20, 7, 113, -98, -9, 46, 16, -61, 73, 44, 111, -71, 80, -15, -101, 77, 109, 4, -125, 103, -104, 3, 88, -82, -112, 61, 0, -8, 115, -74, -122, 116, 103, -87, 8, 102, 98, 32, 69, -1, -88, 44, 46, 58, -115, -89, -112, 120, 123, 109, -74, -99, 127, -108, 7, 116, -26, -116, 29, 44, 7, -49, -106, -95, -115, 60, -120, 79, -13, 19, 20, 84, -51, -86, 92, 86, 113, -101, -113, -2 ]
The opinion of the court was delivered by Johnston, J.: Two actions were brought in the district court of Cowley county by the Winfield National Bank against Peter C. Croco. The first was brought upon a promissory note for $5,405, which was not then due; and the second was upon promissory notes which were past due, amounting to $3,731.91. Orders of attachment were obtained by the bank, upon the grounds that the defendant was about to convert a part of his property into money for the purpose of placing it beyond the reach of his creditors, and had assigned and disposed of his property, or a part thereof, with the fraudulent intent to hinder, delay and defraud his creditors. Afterward, the defendant moved to discharge the order of attachment in each case, for the reason that the grounds alleged in the affidavit made to obtain the attachment were untrue. The motions were heard together and upon the same evidence, before the judge at chambers, and the attachments were discharged. Without waiting for the final disposition of the cases, the plaintiff comes here asking a review and reversal of the orders discharging the attachments. The question tried by the judge at chambers was the good faith and honesty of certain transfers of property made by Peter C. Croco about February 1, 1889, and while he was in a failing condition. In the early part of 1889 defendant became financially embarrassed, and transferred land and other property to his wife, of the estimated value of $6,100. He conveyed property to S. E. Fink, his attorney, worth about $500, and soon afterward made an assignment of the remainder of his property for the benefit of all his creditors. In 1881 his wife obtained from her father, in Ohio, $2,000 in cash, and $2,000 in promissory notes, which were subsequently collected, and the testimony is that she loaned this money to her husband at the interest rate of 10 per cent, per annum. Later on, and some time about April, 1888, she received the additional sum of $500 from her father, which was also loaned to her husband on the same terms. At the time of the transfer his indebtedness to her amounted to more than $7,000, and the testimony offered by defendant in error shows that the property transferred to his wife in payment of this indebtedness was worth less than $7,000. She, however, accepted the property as full payment, and is claiming no interest in the estate conveyed by the general assignment. , Upon testimony somewhat conflicting, it has been found that the transfer was made in good faith, to pay a bona fide debt, and hence, as to this transfer, there is little left for us to determine. A reading of the evidence satisfies us that it was amply sufficient to sustain the finding of the judge. No good purpose would be served by reciting or analyzing it. It is enough to say that the defendant showed quite clearly the receipt of the money by Mrs. Croco from her father, the loaning of the same to the defendant, and his promise to repay the amount and a stipulated rate of interest; and that all this was done while he was in a sound financial condition. It is true that the transfer was made to her while he was insolvent, and that he had consulted an attorney to ascertain whether he could prefer his wife to other creditors; and further, that he was contemplating a general assignment when the transfer was made to his wife. But these things do not affect the validity of a transfer made in good faith to pay a bona fide debt. It is well settled that a debtor in failing circumstances may prefer one creditor to another, although that creditor should be his wife, and he & ; n . may in good faith transfer his property at a fair price to her in payment of her bona fide claim. (Monroe v. May, 9 Kas. 473; Tootle v. Coldwell, 30 id. 125; Bailey v. Kas. Mfg. Co., 32 id. 73; Kennedy v. Powell, 34 id. 22; Chapman v. Summerfield, 36 id. 610; DeFord v. Nye, 40 id. 665.) A decision upholding the validity of the transfer to the wife, however, does not settle that there were no grounds for the issuance of the attachment, nor that the conveyance of property to Croco’s attorney is valid. About the time that the transfer was made to his wife', and just before the general assignment, he conveyed about 165 acres of unimproved land, worth about $500, to S. E..Fink, his attorney, not for services that had been rendered, but largely for services to be rendered in the future. It was made, not only for services in behalf of Croco himself, but also for services to Croco’s wife, his father, his mother, as well as for the administrator of the estate of a deceased brother. The conveyance was made in pursuance of a written contract entered into on the same day, which is as follows: “Contract between P. C. Croco and Rachel A. Croco, his wife, John Croco and Barbara Croco, his wife, and P. C. Croco as administrator of the estate of Melancthon Croco, deceased, and S. E. Fink. “It is this day agreed by and between the parties hereto, that the said S. E. Fink shall transact all legal business for all the parties named, for the period of two years from and after the 31st day of January, 1889, that may be done in any of the courts of Cowley county, Kansas; and in the event of suits begun within the two years and not ended, that the said Fink shall continue to transact the necessary business pertaining thereto until all business for said estate by way of settlement until the estate is finally settled; and all allowances made as counsel fees are to be transferred to said administrator and to become his property. “ For and in consideration for such services rendered and to be rendered under this contract, P. C. Croco and wife agree to pay the same, and the said Fink agrees to accept as pay the following-described piece of real estate: Being lots 2 and 3, and southeast quarter of northwest quarter, and west five acres of south half of northeast quarter, and northeast quarter of southwest quarter, section 18, township 34, range 7 east of 6th principal meridian, containing 156\| acres more or less— all in the county of Cowley and state of Kansas; that the said lands so deeded by these parties is because of all the anticipated legal aid needed by the said John Croco and wife, that arises and probably will arise out of the complications growing but of his indorsing and security given to the said Peter C. Croco by going upon his paper. “It is further understood and agreed, that should there be any expenses attending the transaction of the business for the parties hereto, the same shall be paid by the party employing, and not the employed. “In witness whereof, we hereunto set our hands, the day herein written. S. E. Fink. Peter C. Croco. Rachel A. Croco. John Croco. Barbara Croco. Peter C. Croco, Administrator While Croco could have paid his attorney with money or land for any preexisting bona fide indebtedness, he cannot, while in an insolvent condition, take any portion of the property which fairly belongs to his creditors to pay the debts or obligations of other people. By this contract he undertook to pay the expenses, not only of his own litigation for the period of two years in advance, but for all legal business that might be transacted for Rachel A. Croco, John Croco, Barbara Croco, and the administrator of the estate of Melancthon Croco, in any of the courts of Cowley county. The agreement also contemplated that the attorney should obtain allowances as counsel fees from the probate court in the settlement of the estate of the deceased brother, and that these allowances were to be paid over to Peter C. Croco, and to become his property. Whatever may have been the intention of Croco, this agreement and the carrying out of the same amounted to a withdrawal of that which justly belonged to his bona fide creditors, and operated, to delay and defraud his creditors in the collection of their debts. While in an insolvent condition he created a new debt for something to be obtained two years in the future, and tried to pay it with property which should have been devoted to the payment of debts then existing. He goes further, and tries to provide and pay legal counsel for his relatives an equal length of time in the future, when his entire estate was insufficient to meet his own existing obli gations. The validity of the transfer to Fink, therefore, cannot be sustained, and the making ' ' _ of the same furnished grounds for the issuance of an attachment. While the property conveyed to the wife could not be taken on the attachment issued, the land attempted to be transferred to Fink was subject to a levy, and there may have been other property that might properly have been seized under the order that was discharged. While the judge was warranted in discharging and releasing some of the property which had been seized, his finding that the attachment should not have issued, and the absolute discharge of the attachment that was issued, was error, for which there must be a reversal of the order made by the judge at chambers in each of the cases. That will be our judgment. All the Justices concurring. Per Curiam: The case of J. C. Fullee v. P. C. Ceoco is a proceeding brought to reverse an order discharging an attachment. The grounds for attachment, the evidence submitted on the motion to discharge the same, and the questions raised for determination, are substantially the same as in National Bank v. Peter C. Croco, just decided, and on the authority of that case the order of the district judge discharging the attachment must be reversed.	[ -16, 108, -72, -4, 42, 96, 47, -70, 114, -95, -73, 83, -21, -30, 80, 105, 102, 61, 101, 121, 102, -77, 55, 107, -46, -13, -15, -35, -75, 93, -28, -43, 77, 48, -54, -99, -26, -64, -63, 84, -50, 1, 9, 101, -39, 72, 52, 123, 52, 79, 53, -114, -13, 46, 28, 86, 104, 42, -21, -87, -48, -79, -98, -123, 95, 21, -109, 100, -116, 1, -56, 45, -104, 53, 0, -87, 114, -90, -122, 84, 77, -101, 8, 102, 98, 17, -12, -21, 24, -120, 39, -2, -99, -89, -112, 89, 11, 37, -66, -99, 102, 82, -121, -4, -21, -115, 57, 108, 5, -49, -74, -77, -115, 124, -104, 3, -13, -93, 48, 97, -49, -32, 93, 71, 57, -103, -50, -79 ]
The opinion of the court was delivered by Johnston, J.: This was an action brought in the district court of Cowley county by Barbara Croco and John Croco to cancel and set aside a mortgage executed by them to the Win-field National Bank on February 20, 1889. It was alleged that the property mortgaged was the homestead of Barbara Croco and John Croco, situated in Winfield, and a farm near to Winfield, and that both the homestead and the farm were owned by Barbara Croco. The plaintiffs below averred that the signatures to the mortgage were obtained by fraudulent representations, duress, intimidation, and threats of injury. They averred that the pretended mortgage was procured without any consideration, and without any knowledge on their part of its contents, but, on the contrary, that the bank and its agents, with the intent to defraud them, falsely represented that the instrument was not a mortgage, but was a paper necessary to be executed to keep John Croco from being criminally prosecuted and imprisoned. They alleged that they were unable to read, and did not read or hear the instrument read, and were not aware of its contents at the time of signing the same. They further said that the acknowl edgment of the mortgage was taken by G. H. Schuler, a stockholder and officer of the bank, but that he did not inform them, or either of them, that the instrument was a mortgage, or that he was attempting to take their acknowledgment to a mortgage. The bank denied all the averments of fraudulent representations and duress alleged in the petition, and stated that the mortgage was procured from the Crocos in the ordinary course of business and for a valid consideration, to secure the payment of a promissory note executed by P. C. Croco and John Croco, for the sum of $5,405. The case was submitted to the court upon conflicting testimony, and the claims of the plaintiffs below were sustained, it being held that they did not voluntarily or legally execute or acknowledge the mortgage, and that it was without consideration, and void. It is not disputed that the instrument sought to be canceled in this proceeding was signed by John Croco and Barbara Croco on February 20, 1889. The name of John Croco was signed to it in a back room of the bank, in the presence of the officers, and the name of Barbara Croco was attached to it at her home, in the absence of her husband, and when no one was present but G. H. Schuler, an officer of the bank. It further appears, without question, that Barbara Croco was the owner of the property described in the mortgage, and that she was in no way indebted to the bank. Peter C. Croco, a son, was largely indebted to the bank, and his father, John Croco, had signed, as surety, with him a note of $5,405 held by the bank. When the mortgage was signed by John and Barbara Croco, Peter was insolvent, and the officers of the bank, learning of his financial condition, were actively endeavoring to obtain security for his indebtedness to the bank. The record does not disclose the ages of John and Barbara Croco, but they are spoken of as old people, and the testimony is that the eye-sight of each was greatly impaired. The testimony of John Croco with reference to the signing of the mortgage, in substance, is, that on the morning of February 20, 1889, he started to the railway depot to take the train for the town of Floral to visit his daughter; that while waiting for the train at the depot J. N. McDonald, the vice-president of the bank, came in, and invited him to return to the bank, but Croco declined. McDonald insisted that he must go to the bank as there was urgent business, and picking up Croco’s valise, he started toward the bank with it, and finally Croco reluctantly accompanied him. He was taken to a back room in the bank building, where McDonald sat down and commenced writing. Shortly afterward, George H. and Everett Schuler came into the room, and the paper upon which McDonald had been writing was presented to Croco for signature. Croco inquired what the nature of the paper was, stating that he had not his glasses and was unable to read what was upon the paper. He was told that it was for the purpose of keeping the United States officers from arresting him upon the charge of obtaining money under false pretenses; that money had been obtained from the bank upon the note signed by him; that it was a United States bank, and that they must telegraph the United States officers at Washington by noon that day if the paper was not signed, and that they would telegraph to the marshal or some other officer at Kansas City, who would proceed to Winfield and arrest him. George H. Schuler sat down and wrote a dispatch which he held up in Croco’s face, saying that there was a dispatch that would go to Washington if he did not sign that paper, and that the officers there would telegraph and cause him to be arrested and taken to Leavenworth. Everett Schuler made a similar statement and argument, and McDonald pushed the paper over to him and said if he would sign it now that he would be all right. Croco said he repeatedly asked what the paper was, and to have it read, and at each time was told that it was simply to protect him from prosecution and arrest. He states that he declined to sign, and that he arose and started for the door, telling them that he would go and see his lawyer, and, if his lawyer said it was right to sign the paper, he would do so, when George H. and Everett Schuler jumped to their feet and sharply said that he could not go, but must sign the paper. Dr. Perry, another director of the bank, came in and joined with the others in an effort to obtain his signature to the paper. He had been a friendly neighbor of Croco’s, and he talked pleasantly to him and advised him to sign it and avoid trouble, and that if he did not, the officers at Washington would be notified at once. He was repeatedly told that if he did not sign it before 3 2 o’clock, the telegram would be sent, and about 15 minutes before 12 he signed the paper. He said that he was at no time informed that it was a mortgage, and was told that it was not intended to affect his or his wife’s property. After he had written his name, George H. Schuler tore up the dispatch, and when they started from the room they found that the doors of the same were locked. After leaving the bank, he stated to Schuler that he was going to the office of his lawyer to consult him. When he started up stairs to the law office, he set his valise down, and Schuler informed him that he would not go up. Croco found the office door locked and started for the residence of his lawyer, but when he came down stairs he found that Schuler had gone and taken the valise with him. Soon afterward he reached home, and found that George H. Schuler had been there and obtained the signature of his wife. Barbara Croco testified to the effect that, about noon of the day on which the mortgage was signed, she was at home alone, lying in bed, having been sick for some time; that she heard some one rapping at the back door of her house, and on going to the door saw a stranger, who proved to be George H. Schuler, standing there; that he spoke to her, and stated that he had brought Mr. Croco’s satchel home, when she inquired what had happened to her husband, and she says that it occurred to her that he had been injured or killed. He walked into the room and presented a paper to her to sign, and when she inquired the nature and purpose of the paper she was told that Peter Croco had made an assignment; that the bank had telegraphed to Washington, and the officers would come tomorrow and arrest her husband. She stated that'he told her that the paper presented was simply to protect Mr. Croco from the officers, and from arrest. She told him that she could not read the writing, and asked him what it was, when he replied again that it was simply to protect them; that Mr. Croco had signed it, and that if she refused, Mr. Croco would be arrested on the next day. After a good deal of talk of a similar character, and that if her husband was arrested he would be handled roughly, she stated that she became alarmed and anxious for the safety of her husband, and signed the paper. Between 5 and 10 minutes after her signature was attached, her husband returned home. She stated that Schuler never intimated that the paper was a mortgage upon her property, nor inquired whether she acknowledged the execution of the same as a mortgage, and that in fact she did not know that it was a mortgage until the following day. The mortgage was taken to the office of the register of deeds at once for record. An employé in the register’s office testified that he heard a conversation between McDonald and another employé in the register’s office with respect to the signing of the mortgage, and while he did -not remember the exact language used by McDonald, it was to the effect that they took Croco into the bank and made him sign the mortgage; that one of the Schuler boys went down to the house and got old lady Croco to sign it; and that he thinks he used the term “bull-dozed” in speaking of the manner in which they had obtained the mortgage. The bank assails the finding and judgment upon the ground that they are not sustained by sufficient evidence, but if we accept the testimony of the Crocos to be true, as we must, there can be no question that it abundantly supports the finding of fraud and invalidity. Taking their testimony to be true, it is inevitable that their signatures were obtained by a gross deception and a species of duress. It should be stated that the officers of the bank emphatically deny that there were any misrepresentations or any threats made to induce either Croco or his wife to execute the mortgage. They state that Croco went to the bank without any compulsion; that the mortgage was drawn up in his presence, and its nature explained to him; that they reminded him of his representations as to the property and solvency of himself and his son, made before that time as a basis for credit, and urged him to make good those assurances by tangible security. In the argument, it is said: “The old man was unable to withstand- these proper appeals .to his moral sense, and thus gave the securities, not very freely we admit, but with thorough knowledge of what he was doing, and not under such circumstances as to entitle him to any relief in a court of equity.” Some things in- the testimony of Croco would sustain the theory of the bank, and indicate that he may have known' the character of the paper he was signing. Por instance, he ad-, mits that when the mortgage was in course of preparation, McDonald inquired the name of Croco’s wife, and also made inquiry in regard to the extent and description of Peter Croco’s land. On the other hand, some circumstances are shown by the testimony of the bank which tend to sustain the claim that there was both fraud and duress in procuring the signatures to the mortgage. It is admitted that the old man was taken into a rear room of the bank, and that great pressure was required to obtain his signature, and that for more than two hours the four officers of the bank, in turns, labored with him to induce him to sign the paper. It is admitted that a telegraphic dispatch was written in his presence about 12 o’clock — the hour mentioned by Croco — and a statement was made to him that if the matter was not satisfactorily arranged, the telegram would be sent; but it is claimed that it was a telegram to Schuler’s father. It is also admitted that some of them may have told Croco that the transaction would be reported to the United States officers at Washington* Then the action of Schuler in hurrying to the home of Croco and obtaining the signature of Mrs. Croco, when he knew that Mr. Croco was absent and endeavoring to find and consult his lawyer in regard to the matter, tends to support the theory of the Crocos. All these circumstances, and others which we are not possessed of, were before the trial court, and enabled it to determine whether the mortgage was fairly and voluntarily executed, or whether the signatures to the same were obtained by fraud, fear, and compulsion. Whether the weight of the evidence supports the finding that was made, is not a question in this court now. If there is competent evidence to sustain the same, that is decisive with us. (Weil v. Eckard, 37 Kas. 696; Goodrich v. Magers, 39 id. 746.) It is true there were more witnesses testified in behalf of the theory and claim of the bank than for that advanced by the Crocos, but the trial court was not obliged to believe their evidence unless it convinced and satisfied its reason and judgment; and the presence of the witnesses, and the circumstances surrounding the transaction and occurring at the trial, no doubt threw considerable light upon the matter, and enabled the court to reach a decision upon testimony which was so contradictory and conflicting. If the officers' of the bank Pm'Posely deceived the old people,'who could not rea(3 the instrument presented for their signatures, in regard to its character, as the Crocos have testified, then the mortgage was invalid, and the decree of cancellation is correct. (Bird v. Logan, 35 Kas. 228; Warden v. Reser, 38 id. 86.) If they operated upon the fears of John Croco by threats-of illegal arrest and imprisonment, believed by him to be imminent, as he has testified, and thus overcame his will, aD(l through fear and by undue influence compelled him to sign the mortgage, the signature is not binding. “If the wife was induced to execute the mortgage from fear excited by threats made to her by the plaintiffs of an illegal criminal prosecution against her husband, the instrument thus obtained would not be binding upon her.” (Green & Densmore v. Scranage, 19 Iowa, 461, 466; Foley v. Greene, 14 R. I. 618; Harris v. Carmody, 131 Mass. 51; Schultz v. Culbertson, 46 Wis. 313.) Barbara Croco was the exclusive owner of the property described in the mortgage, and unless it is binding on her, it cannot be sustained. She did not sign the note upon which her husband was surety, and was not indebted to the bank in any amount. The note sought to be secured was made December 24,1888, and did not mature until 90 days thereafter. The mortgage was signed by Barbara Croco and her husband more than 30 days before the maturity of the note, to secure an indebtedness for which she was in no way liable. It is conceded that the note was not then due, that no extension of time was asked or obtained, and no present consideration passed from the bank to her or anyone else at the time of the execution and delivery of the mortgage. It is therefore difficult to discover any consideration that would support the execution of the mortgage by Barbara Croco. Looking at the whole testimony, however, there is no difficulty jn say{ng ¿bat there is sufficient to sustain the finding and judgment rendered by the court. The plaintiff in error contends that a new trial should have been granted because of bias and prejudice entertained by the trial court against the officers of the bank. On the motion for a new trial, three affidavits in behalf of the bank were presented by McDonald, Schuler, and Perry, and in behalf of the Crocos, oral testimony was given by one witness, and a statement with reference to the charge of bias and the conduct of the trial was made by the court, and the testimony produced falls far short of sustaining the charge. The statements of the affiants are largely expressions of opinion that the judge was prejudiced against the officers of the bank, and that his conduct during the trial indicated such prejudice, without reciting the facts and circumstances upon which such opinions and statements were based. The mere expression of the opinions of these witnesses, without a statement of the facts or grounds upon which such opinions were based, canno¿ be regarded as testimony, and is entitled to no consideration. It is stated as a fact, that the court allowed great latitude in the cross-examination of the officers of the bank, but allowed no latitude whatever on the cross-examination of John and Barbara Croco. We find that the record does not sustain this claim. It is also stated that the judge in rendering judgment remarked that, if he believed the testimony of the Crocos, some of the officers of the bank were criminally liable, and should be proceeded against for a criminal offense; but this is qualified to some extent by the oral testimony and statement of the judge. But, even if the statements imputed to the court in rendering its judgment are accepted, it does not indicate that the court entertained any prejudice at the commencement or during the course of the trial, nor yet at the time the statement was made. If the judge believed the testimony of the Crocos, and that the charge made against the officers of the bank was true, it is quite natural that some strong and severe language should be used; but we find nothing in what was said when the judgment was given, or in the conduct of the judge during the trial, which convinces us that the judge had any bias or prejudice for or against any of the parties to the action. Judgment affirmed. All the Justices concurring.	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The opinion of the court was delivered by Johnston, J.: This was an action of ejectment to recover possession of a tract of land in Chase county. The verdict and judgment were given in favor of the defendants, and the plaintiff alleges error. The defendants challenge the sufficiency of the record, and claim that there is nothing here for review, for the reason that the pleadings and proceedings now found within the case are not specifically marked and identified. There is attached to the petition in error what is termed a “case-made,” in which there is, first, a brief recital of the dif ferent proceedings in the trial, which are referred to as being “hereto attached,” without special designation. Then follow what purport to be copies of pleadings, evidence, instructions, verdict, motion for a new trial, and judgment; and at the end of all these is a stipulation of both parties as to the time of settling the case, which is followed by the certificate of the judge. In this state of the record, there can be no question but that the pleadings and proceedings are what they purport to be, and a fair presumption is that all were included in the case-made when it was served upon the defendants and settled and signed by the judge. Though the case is here for review, we are unable to examine the points contended for by plaintiff in error. One of these is that the evidence is insufficient to sustain the verdict and judgment, and the other, that the jury were improperly instructed in a certain particular. The sufficiency of the evidence cannot be examined unless it properly appears that all the testimony is included in the record. There is a recital at the beginning of the case-made that “the plaintiff, to maintain the issues on his part, offered his evidence and rested; and the defendants, in- order to maintain the issues on their part, offered all their evidence and rested; all of which evidence is hereto attached.” An inspection of the record, however, shows that, after the defendants had rested, testimony was offered by each in rebuttal, and still more, on surrebuttal. There is no statement at the end of the testimony showing that the case-made contains all that was offered. There is in the record a certificate by the official stenographer that what precedes it is a full and correct transcript of the testimony in the case; but it is not within the province of the stenographer to determine whether a case-made contains all the evidence or not, or to settle the truthfulness of the statements included therein. (Rld. Co. v. Grimes, 38 Kas. 241.) We also find that there is considerable testimony in the record which follows the certificate of the stenographer. A statement is included in the certificate of the judge who settled the case, to the effect that the case contains all the evidence that was in troduced on the trial, but such a statement was improperly included in the certificate, and is ineffectual to accomplish the purposes intended. (Eddy v. Weaver, 37 Kas. 540; Hill v. National Bank, 42 id. 364.) The first recital in the case-made is to the effect that the ease includes the evidence offered by each party before they rested — necessarily excludes that which was afterward introduced. This was evidently deemed to be insufficient by the plaintiff in error, as he attempted to supplement it by the certificate of the official stenographer, and later by another certificate of the judge. We conclude that the record fails to properly show that all the evidence is preserved, and hence, under the authorities cited, we cannot say that the verdict is without support. The other objection is, that the court did not fully and correctly state the law in respect to transactions between attorney and client. It may be first remarked that no other or additional instructions were requested by the plaintiff. If the plaintiff desired fuller instructions given upon any question in the case, he should have asked the court for such instructions ; and, failing in this, he has no cause to complain. (The State v. Pfefferle, 36 Kas. 90; Phinney v. Bronson, 43 id. 451.) The plaintiff objects to a single proposition in the charge that was given, but his objection is unavailing because no sufficient exception was taken. The only exception taken is found in one of the preliminary recitals in the case-made, and is as follows: “After both sides had rested their case, the court of his own motion proceeded to instruct the jury; a copy of said instruction is hereto attached; to which the plaintiff at the time excepted.” The charge contains several propositions of law, only one of which is challenged; but instead of pointing out to the district court the objectionable proposition and excepting to the giving of the same, the plaintiff was content to take a general exception to the entire charge. This is insufficient, and brings up for review only the general scope and meaning of the charge. It is ineffectual to present the objection made by the plaintiff. ( Wheeler v. Joy, 15 Kas. 390; Hentig v. L. & T. Co., 28 id. 617; The State v. Wilgus, 32 id. 126.) We find nothing in the record which warrants a reversal of the judgment. It may be proper to remark that the question who has the title to the property at present has not received any consideration. The judgment of the district court will be affirmed. All the Justices concurring.	[ -16, -18, -27, -67, -86, 96, 42, -118, 65, -93, 102, 115, -83, -54, 8, 97, -5, 61, 117, 106, 70, -77, 54, -61, -110, -77, 122, 85, -79, 109, -12, -44, 76, -76, -54, -43, 102, 104, -57, 80, -50, -85, -103, 100, -55, 104, 36, 51, 114, 15, 117, 79, -29, 42, 61, -61, 105, 45, 75, -67, 80, -8, -98, -115, 93, 5, -79, -90, -98, -126, 88, 42, -112, 49, -128, -24, 114, -106, 2, -12, 73, -69, 8, 102, 98, 1, -35, -17, 44, -120, 15, 62, 29, -90, -112, 65, -53, 41, -106, -99, 117, 82, 38, 102, -19, 4, 25, 108, 7, -49, -110, -77, -113, 56, -128, 75, -29, -93, 16, 113, -59, -30, 92, 103, 17, -101, -49, -109 ]
Opinion by Strang, C.: Action in ejectment for lot 1, in block 6, in the city of Oberlin, Decatur county, and for mesne profits. The action was brought in the court below in the names of Henry S. Beardsley and Charles E. Chandler, plaintiffs, against J. R. Neil and L. E. Cross, defendants. It was afterward dismissed as to Cross, and we do not know where Beardsley fell out, nor why he was ever in, as he had conveyed the lot to Chandler before suit. However, he does not seem to be here. Neil answered, claiming superior title to the lot in controversy. Plaintiff demurred to the second amended answer of the defendant, which was overruled, and exception allowed. At the April term, 1888, the case was tried before the court without a jury, and a general judgment was rendered in favor of the defendant. Plaintiff interposed a motion for new trial, which was overruled. The first contention of the plaintiff in error is, that the court erred in not sustaining his demurrer to the defendant’s second amended answer. This demurrer alleged that the answer did not contain facts sufficient to constitute a cause of action. We think the court was right in overruling the de-. murrer. The answer states a defense. It sets up a purchase of the lot in question from J. P. Mathis, through his agents, Wilson and Adelman, by a verbal contract at a time long prior to the sale of the lot by said Mathis to Beardsley, from whom Chandler obtained his title, and alleges part payment of the purchase-money, a tender of the balance due on the contract, possession of the property, which is admitted by the plaintiff, and his erection of lasting and valuable improvements thereon. The receipt mentioned by counsel for plaintiff in this connection was not a contract, but a simple receipt for money paid on a verbal contract, and beyond that it cuts no figure in the case. The defendant recovered on the strength of his title under the verbal contract with the agents of Mathis, and his possession thereunder. It is admitted that Wilson and Adelman were the agents of Mathis for the sale of the lot in controversy. The undisputed evidence in the case shows that they sold the lot to Neil for $240, and gave him possession of the premises immediately. Neil paid $20 down when the contract was made, and was to pay the balance when the deed was ready. Wilson thought it would take 30 days to get the deed round from Mathis. Before the 30 days were up Neil tendered the balance of the money to the agents of whom he purchased, and afterward to Mathis himself, and demanded a deed. What more could he have done? What more was required of him? Nothing. He was entitled to a deed; and being entitled to a deed, the court was right in adjudging that he should have one, with his costs. The evidence shows bad faith on the part of Mathis. On the witness-stand he says his refusal to execute the deed was because the sale was made on 30 days’ time, when in fact the balance of the purchase-money was tendered before the time fixed by his own agents at which they would be able to deliver a deed. Wilson’s evidence undoubtedly discloses the real reason why Mathis refused to execute a deed, when he says upon the witness-stand that Mathis asked him “if there was not some way for him to squirm out of the Neil contract.” Mathis had learned that there was likely to be a railroad built into Oberlin, and he considered his lot worth more money, and he wanted to “squirm out” of his sale to Neil. The judgment is fully sustained by the evidence. We find no error in the record, and therefore recommend that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.	[ -16, 124, -8, -115, -38, 104, 40, -8, 75, 1, -73, 95, 109, -50, 8, 47, -29, 109, 113, 106, 100, -77, 19, 34, -46, -13, -5, -59, -75, -51, -28, 87, 76, 4, -62, 21, -57, 34, -59, -108, -50, 36, -86, 76, -35, 72, 52, 61, 72, 73, 17, -114, -13, 46, 21, -37, 107, 41, -49, 57, -63, -8, -82, 69, 111, 19, 16, 39, -104, 3, -56, 42, -80, 53, -110, -24, 115, -90, -58, -12, 71, -103, -120, 102, 103, 17, -59, -81, -72, -104, 15, -98, -115, -89, -108, 65, 107, 8, -66, -99, 117, 16, 37, 126, -24, -60, 25, 60, 3, -121, -106, -77, -81, 122, -98, 3, -45, -117, 53, 65, 79, -94, 93, 71, 112, -101, 15, -23 ]
The opinion of the court was delivered by Horton, C. J.: On the 8th day of April, 1885, J. S. Edwards leased to A. S. Van Patten a house in Garden City, in this state, for the term of two years. It was subsequently agreed in writing between these parties that Van Patten should put up a small addition on the south side of the house, the addition to be 12x28 feet. At the expiration of the lease Edwards was to purchase from Van Patten the building or addition at what it might be worth at that time. In accordance with the written agreement, Van Patten constructed the addition, and at the expiration of his lease demanded payment therefor, claiming that it was worth $300. Edwards offered $100, but refused to pay any more. Then Van Patten brought his action against Edwards to recover the value of the building or addition on the 8th day of April, 1887, the date of the expiration of the lease. Trial before the court with a jury, at the June term, 1888. The jury returned a verdict in favor of Van Patten for $170. Edwards excepted, and brings the' case here. Upon the trial, Van Patten was permitted to prove the cost of the building or addition, which was erected in the summer of 1885. The cost was $330. During the examination of the witnesses, the district judge said: “Under this contract the theory of the court is, that it ought to be proven what it cost to construct this building, and then the reasonable deterioration of the value, whether from use or abuse. It does not seem to the court proper that general deterioration or increase in value of real estate in Garden City would be proper estimate (of value or worth) in this case.” The court also instructed the jury that— “In determining such value, you have a right to consider the proper cost thereof, and the depreciation in value consequent upon use and lapse of time after it was completed.” All of this is complained of. The question of fact for the jury to pass upon was, what the building or addition was worth on the 8th day of April, 1887. Witnesses who were acquainted with such buildings and knew their market value could have testified thereto; but it was erroneous to introduce evidence showing the actual cost of this particular building or addition in the summer of 1885. Edwards was to pay the value or worth of the building or addition on the 8th day of April, 1887; not the original cost of the building, less deterioration from use or. abuse. If witnesses who were acquainted with the cost of such buildings in Garden City had testified to the general cost of putting up such an addition, this might have been some evidence which the jury could have properly considered in arriving at the value or worth of the addition on the 8th of April, 1887; but the cost of this particular building in 1885 was not the true or fair basis of its value or worth on the 8th day of April, 1887. The judgment of the district court will be reversed, and the cause remanded for a new trial. All the Justices concurring.	[ -15, 106, -112, 110, 90, -96, 74, -40, 96, -94, -76, 95, -19, -34, 16, 105, -74, 77, 81, 105, 70, -77, 6, -29, -109, -13, 83, 85, -79, 77, -28, -41, 72, 37, -62, -103, -58, 2, 81, 84, -114, -91, -87, 100, -35, 80, 52, 123, 0, 10, 17, -98, -13, 46, 25, 99, 104, 44, -37, 43, 81, -15, -126, -99, 111, 6, -112, 39, -100, -125, 74, 12, -112, 49, 0, -8, 115, -92, -122, 124, 69, -103, 12, -30, 98, 33, 37, -49, -16, -100, 15, -34, -121, -89, 22, 89, -54, 109, -68, -33, 117, 16, 39, -10, -25, 21, 24, -19, 7, -114, -106, -78, 47, 56, -105, 75, -45, -117, 49, 97, -50, -94, 92, 86, 123, -109, -113, -35 ]
Opinion by Green, C.: On the 1st day of April, 1884, D. P. Shaft took possession of the west one-half of the southwest quarter and the southwest quarter of the northwest quarter of section 14, township 20, range 8, in Chase county, claiming the same under a tax deed. On the 5th day of April following, J. L. Crawford brought suit in ejectment, in the district court of Chase county, for the land, claiming title under a patent. The case was tried and resulted in a judgment in favor of Shaft, which judgment was reversed by this court, (Crawford v. Shaft, 35 Kas. 478,) and when again tried judgment was entered in favor of Crawford for the possession of the premises, and, upon the suggestion and application of Shaft, the court determined the tax lien, and caused a journal entry to be made that the defendant was entitled to the benefit of the occupying-claimants’ act. The defendant having neglected to call for a jury, on the 20th day of January, 1888, the plaintiff filed his application therefor, and an appraisement was made, which was, upon motion of the defendant, set aside, upon the ground that proper notice had not been given him of the meeting of the jury, and leave was given to either party to require a new jury to be drawn. On May 9, 1888, the plaintiff again filed his application fora jury, which made the following return: Value of land, July 11, 1887.............................. $1,050 00 Rent of land, April 7, 1884, to July 11, 1887......... 201 30 Waste on land, April 7, 1884, to July 11, 1887...... 49 00 Improvements, July 11, 1884.............................. 13 30 On December 11, 1888, the plaintiff filed his motion for judgment for the amount of rent and waste, after deducting the value of the improvements, according to the assessment of the sheriff’s jury. Upon the oral request of the defendant, the court gave him an affirmative judgment against the land for the value of the improvements, and gave the plaintiff judgment for the costs, under the occupying-claimants’ proceedings, but overruled the plaintiff’s motion and refused to give him judgment against the defendant for the rents and waste, or to allow him to set off the same against the improvements. This ruling of the court we are asked to review. I. It is first insisted by the defendant in error that a motion for a new trial was necessary to have the assigned errors considered by this court. It has been determined otherwise. The proceedings under the occupying-claimants’ act were all after the rendition of the judgment in the original case, and the matter complained of is apparent of record. An error in the final judgment of the district court may be reviewed, although no motion has been made to correct the error in ’the trial court. (Coburn v. Weed, 12 Kas. 183; Earlywine v. T. S. & W. Rld. Co., 43 id. 746.) II. We think the court erred in its ruling. The defendant asked and obtained a judgment for the improvements that he had placed upon the land when occupying the same under his tax deed. He was not in a situation to question the regularity of the assessment and return of the jury. He was ready to accept the benefits of a verdict, so far as it related to him. Section 607 of the code of civil procedure reads: “If the jurors shall report a sum in favor of the plaintiff or plaintiffs in said action, for the recovery of real property on the assessment and valuation of the valuable and lasting improvements, and the assessment of damages for waste, and the net annual value of the rents and profits, the court shall render a judgment therefor without pleadings, aud issue execution thereon as in other cases; or, if no excess be reported in favor of said plaintiff or plaintiffs, then, and in either case,, the said plaintiff or plaintiffs shall be thereby barred from having or maintaining any action for mesne profits.” The object of this section of the occupying-claimants’ act was to provide a simple method by which the occupant and the owner might have settled and determined, without pleadings, the amount due upon the one hand to the occupant for his improvements, and upon the other, the sum due the owner of the land for rents and waste during the period that the other was in the wrongful possession of the premises. The rule is an equitable one which makes it the duty of the party in possession, who claims pay for the improvements he has placed upon the land, to respond to the owner for its net rental value during the period that he has unlawfully held possession of the property. The rent and waste, as returned by the sheriff’s jury, having accrued to the plaintiff since the commencement of the original suit, it was within the power of the court, under § 607 of the code, to render judgment in favor of the plaintiff for the amount of such rent and waste, less the im- ■ provements, and that amount should have been awarded him without pleadings. It is recommended that the judgment of the court under the occupying-claimants’ proceedings be reversed, and that the district court proceed in accordance with the views herein expressed. By the Court: It is so ordered. All the Justices concurring.	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Opinion by Simpson, C.: Brant & Beachy sued D. P. Johnson in the district court of Franklin county, alleging substantially that they were partners conducting a real-estate agency, at Ottawa, in said county; that on the 19th day of March, 1883, they made a contract with Edwin E. Wilson, by which Wilson employed them to sell seven tracts of land lying in said county for the sum of $22,252, and if they sold at that price they were to receive 3 per cent, commission, and were to make no charges or expenses; that if all the land should be sold within six months, they were entitled to the amount realized in excess of $21,000; that if the total amount realized by a sale within six months should be $500 or more in excess of $22,252, then their commission was to be 6 per cent, of the gross sales, and no more; that if not sold within six months, but within one year, then the commission should be 4-J per cent.; that if any of the property should remain unsold after one year, or if the land did not sell for $22,252, the commissions and charges of every kind should not be in excess of 3 per cent. Brant & Beachy were to take charge of and lease the land, but no lease to interfere with the sale. On the 10th day of May, 1883, an additional contract was made between the parties^ wherein it was provided that the amount of $814 is due Brant & Beaehy when that sum shall have been derived from the sale of the real estate known as the “Hamilton lands,” in Franklin county, subject to á payment out of the proceeds of said sale of $1,500 due Hamilton. On the 26 th day of .December, 1883, Brant & Beaehy entered into a contract with one W. A. Clark, which recited that the previous contracts with Wilson were made for Clark, Underwood & Co., and for convenience in business Wilson had conveyed to Clark the lands mentioned in the original contract, who holds the same for Clark, Underwood & Co.; that said conveyance shall not be considered a breach of the original contract, and that Brant & Beaehy shall continue to handle the lands upon the terms agreed upon, the firm of Underwood, Clark & Co., however, to have the full benefit of and be subject to any agreements in existence between Wilson and Brant & Beaehy in relation to said lands, the same having been made by Wilson for Underwood, Clark & Co. It is then alleged that Clark mortgaged these lands to D. P. Johnson to secure the payment of $20,000 due from Underwood, Clark & Co. In said mortgage it was agreed that at any time that a sale was made of any part of the land at fair prices, the said Johnson, on receiving the purchase-price of the land sold, should credit it on the notes, and release the tract sold from the operation of the mortgage. On the 15th day of May, 1884, it was further agreed between Clark and Brant & Beaehy, that in consideration of the sale of the balance of the Hamilton lands to Fickenger at the price of $8,500, the said Brant & Beaehy were to receive as total commissions the sum of $365, there being the sum of $814 to be paid Brant & Beaehy out of the sale to Fickenger, Brant & Beaehy representing that the proceeds of rent in their hands amount to $300; that on the 25th day of September, 1884, the said D. P. Johnson, through his agent, the Goodin Bank, of Ottawa, duly authorized, promised and specially agreed with Brant & Beaehy, that if they would complete the sale to Fickenger, or his assignee, Kerr, and to David Fogle, that as soon as the proceeds of said sale were paid them, the sum due them would be paid by his agent, the bank, or by himself; that they did complete said sales, the one to Fogle for $4,800, and the other to Kerr for $8,500, which sums were paid to the Goodin Bank; that Johnson refused to pay, and they ask judgment against him for $978.64, with interest from May 1, 1885. Johnson answered, denying generally, and for a second defense pleaded the statutes of limitation, and for a third defense alleged that heretofore, in a certain action in the district court of Franklin county, wherein these plaintiffs brought an action against W. A. Clark, defendant, the identical fund of $1,100 mentioned in the petition (being the balance of the proceeds of the sales to Fogel and Kerr remaining on deposit in the Goodin Bank) was attached as the property of Clark; that thereupon this defendant filed an interplea in said action, claiming said funds as his, and the plaintiffs filed a reply to said interplea, denying the claim set up therein, and setting forth the same facts which are now set- up in this petition as the foundation of their action, and praying judgment therein against the defendant. Said action came on for trial, and was tried upon the issue presented by the interplea, reply and denial, and judgment was rendered thereon in favor of this defendant. The defendant alleges that all the matters and things now complained of and sought to be litigated were finally adjudicated in that action in favor of this defendant. The entire pleadings, records and proceedings in that action are made a part of the answer. This case was tried by the court at the October term, 1888, and findings of fact and conclusions of law were entered as follows: “findings of fact. “1. The plaintiffs are, and at the times herein referred to were, co-partners in the business of real-estate agents and loan brokers at Ottawa, Kansas. “2. On the 19th of March, 1883, the plaintiffs, by written agreement, undertook as such brokers to sell for E. E. Wilson certain land in this county. This agreement was modified by a further writing on May 10, 1883, whereby it was agreed that $814 of the proceeds of said sale, when made, should be paid over to the plaintiffs. This was a balance of purchase-money due on said land to one Hamilton, and by agreement between him and the plaintiffs, was to be received by the latter in satisfaction of a debt Hamilton owed them. “3. Wilson conveyed said lands December 26,1883, to W. A. Clark as a member of and for the firm of Underwood, Clark & Co., whose agent Wilson was, and for whom fie had held the legal title to said lands; and therefore said Clark adopted and ratified the said prior agreements between Wilson and plaintiffs. “4. On December 28,1883, Clark mortgaged said lands to D. P. Johnson, the defendant, to secure $20,000 on indebtedness due him from Underwood, Clark & Co. This mortgage contained a condition that Clark might sell the lands or parcels thereof at fair prices, and that upon receipt of the purchase-price Johnson would release the tracts so sold; when he took this mortgage the defendant had no knowledge of the plaintiff’s claim upon proceeds. “5. On May 15,1884, the plaintiffs agreed, in writing set out in the petition, with said W. A. Clark that in consideration of certain sales of the remainder of said land by the plaintiffs they should have a total commission for such sales of $365, and that they should have also out of the proceeds of such sale said $814, and should account for $300 rent received. “6. Written agreements for the sales of said remainder of the Hamilton lands had been made by the plaintiffs as such agents with two certain parties, and were outstanding and in full force on May 15, 1884, and remained without being carried into effect for considerable time because of defects in the title which said plaintiffs were endeavoring to and did afterward correct, at the request of Clark and his grantor, Wilson, whereby they became entitled to $99.64 for their services and expenses therein from said Clark. “7. On September 22, 1884, the defendant, upon request of Clark, forwarded to Goodin Bank, at Ottawa, releases for •the lands so sold by the plaintiffs, with instructions to deliver on payment of purchase-money in full to the bank for him (Johnson). Plaintiffs learning of this informed the bank of their claims heretofore referred to, and demanded payment thereof out of said proceeds. The bank at once informed the defendant by letter of said claims and demands. Thereupon defendant’s agents, thereto duly authorized, instructed the bank in writing, duly signed by them, as follows, in relation thereto: “‘Underwood, Clark & Co. told us that they would settle Beachy’s claim. Presume they will do so if they have to. We think it will be arranged, but perhaps they hope to reduce the demand some. We would prefer to have the whole amount, but if Beachy’s claim must be settled, let it be done. U., C. & Co. will make the amount good to us. (Signed) Bxohmond & Titus.’ “8. On receiving this letter and instructions, the bank showed Mr. Beachy the letter, and orally promised the plaintiff payment out of the proceeds when they came in. Considerable delay, however, occurred, occasioned by an apparent defect in the title, to cure which the plaintiffs were endeavoring to obtain a certain quitclaim deed, which they finally procured and placed on record November 5,1884. Pending this delay, the defendant ordered' and caused the return of his releases and all other papers from said bank. “9. After said deed was procured, still further delays occurred, occasioned by the effort of the purchasers to negotiate loans upon the lands to pay the purchase-money. In March, 1885, the defendant, who lived in Iowa, came in person to investigate the matter and look after the lands. After seeing the lands, he called upon the plaintiffs and inquired for and obtained the particulars of their claim, and of the terms and conditions of the pending contracts of sale, and promised to plaintiffs to pay said claim, saying to them with reference thereto, ‘I will make it my debt and see it paid;’ and told the plaintiff Beachy to go on and close up the trade, and he should have his pay out of the proceeds. This promise was entirely verbal. “10. The plaintiffs negotiated the sales of the lands referred to, and, after the contracts were signed, were active in making the title satisfactory to the purchasers and in bringing about a compliance on the part of both parties. They were engaged in this when .the defendant made the promise just referred to, and continued the same service afterward, and finally, in May, 1885, the parties were ready to and did perform on both sides. In anticipation thereof the defendant had, after said promise, again forwarded said releases to Goodin Bank, with instructions to deliver them only upon full payment of all the proceeds of sale for him being first made. The deeds from Clark were accordingly delivered (by another agent), and the full proceeds of the sales paid to Goodin Bank for Johnson. The plaintiffs protested against this, and demanded payment of their claims from Clark’s agent and from the bank, but were refused. “11. While the plaintiffs were at all times active and energetic in making the sales and procuring a compliance with the contracts, and expended much time and work therein, it does not appear that they did anything more or differently because of the defendant’s promise than they otherwise would have done, and they in fact did nothing further than they would have done without such promise, but they relied upon receiving their pay out of such proceeds, and when refused, they brought suit against Clark and garnished the bank, as shown in the action of Brant v. Clark, referred to in the preliminary statement. “12. The plaintiffs’ claims so due from Clark, and which defendant promised to pay, are: Balance of purchase-money, as stated...................... $814 00 Commissions............................................. 365 00 Services and expenses in perfecting title................... 99 64 Total..................'..............................$1,278 64 Less moneys for rents.................................... 300 00 Interest........................................................ Total amount due plaintiffs................................. “For the above amount judgment was duly rendered in this action against Clark November 1, 1888, which judgment is still in full force and unpaid. Underwood, Clark & Co. are insolvent, and after applying all said purchase-money they are still heavily indebted to the said D. P. Johnson upon said mortgage debt, and otherwise. “ 13. It is admitted that all the written agreements attached to and copied into the petition were duly executed and delivered by the parties thereto alleged.” “conclusions on law. “1. That the plaintiffs had no lien upon the proceeds of the lands sold by them for Clark for the indebtedness due them from the latter. “2. The defendant’s promise to pay Clark’s debt was a special promise to answer for the debt of another, and not being in writing, is within section 6 of the statute of frauds, and cannot be enforced. “3. The authority given by Richmond & Titus to the Goodin Bank, in the letter of September 22, 1884, is merely an instruction by one of the defendant’s agents to another, and cannot be construed into a contract between the defendant and plaintiffs, or as giving to the latter a lien upon funds still in the hands of the purchasers of the lands. Further, it appears that this instruction was revoked, and other instructions given. “4. No legal liability of the defendant to the plaintiffs, as alleged in the petition, is shown by'the facts appearing on the trial, and judgment will therefore be rendered for the defendant for costs.” The case is properly here for review, and counsel for plaintiffs in error insists that the promises of Johnson, as shown in the seventh, eighth and ninth findings, were original and not collateral. I. A case in which both Brant & Beachy and Johnson were parties, heretofore decided by this court, (Johnson v. Brant, 38 Kas. 754,) to some extent discusses the questions involved in this controversy. The counsel for the plaintiffs in error now insists that the promises of Johnson, as shown in the seventh, eighth and ninth findings, were original and not collateral. In the case reported in 38 Kas., Mr. Justice Valentine says: “As before stated, we think the plaintiffs did not have any lien upon these funds, and besides, Johnson’s waiver appears to have been wholly by parol, and without any consideration whatever. And it was also an agreement to answer for the debt or default of another person.” This was said in an action between these same parties, in which the validity of Johnson’s promise to pay was directly in issue by the pleadings. It is plain that Brant & Beachy did not at the time consider Johnson’s promise to pay the debt of Clark an original one, because they did not rely on it, and did not discharge Clark from the debt, but sued him and insisted on payment from Clark, attempted to garnish funds in the bank which they supposed belonged to Clark, and never attempted to enforce the promise against Johnson until all hope of securing their money from Clark had departed. This conclusively establishes the promise of Johnson as a collateral one. The ingenious theory of counsel for the plaintiffs in error, that seeks to apply the rule that “ where one seeks to promote or subserve some interest or purpose of his own by a promise to pay the debt of another, which if made on a good consideration is unaffected by the statute of frauds,” is not applicable here, because the greater part of the services of Brant & Beachy had already been performed, with a full knowledge on their part that the proceeds of all sales were to be paid to Johnson, and with a special written agreement in their behalf that their agency should not be affected by the execution of the mortgage by Clark to Johnson. With this knowledge, when finally they commenced legal proceedings to enforce collection of their commission, Clark was the party against whom they moved, and not Johnson. It would seem from their own acts that this action against Johnson was a dernier ressort. There was no antecedent obligation on the part of Johnson to pay these plaintiffs in error. It is not shown that he was specially benefited, because by the litigation that has resulted it has been adjudicated that he was entitled to the balance in the bank, independent of any agreement with or promise to Brant & Beachy. Brant & Beachy are not brought within any of the judicial exceptions to the statute of frauds. There was no original obligation, and in the nature of things the promise of Johnson was a collateral one. In any event, the parol promise must be made upon good consideration, and it is now urged that a good consideration was the fact that Johnson would be saved the trouble and expense of a foreclosure; but he had already provided for that by his contract with Clark, and the mortgage executed by Clark provided in express terms that Clark might sell portions or all the land at fair prices, and that Johnson, upon receiving the purchase-price of said sales, should credit them upon the notes secured by the mortgage. This contract was made by the principal, and Johnson could not be specially benefited by its repetition by the agents. The weight of modern authority now is, that the promise, although made upon a new consideration, of benefit to the promisor, is held to be collateral if the original liability remains, and that the promise is within the statute unless it is in effect substituted for the original lia bility. This rule is sustained from citations from the supreme court reports of Indiana, Iowa, Massachusetts, Michigan, Wisconsin, Mississippi, Georgia, Maine, New York, Nebraska, Ohio, and Pennsylvania, in notes 1 and 2, on page 682, 8 Am. & Eng. Encyc.'of Law. II. But it is said that the promise of Johnson is in writing, as evidenced by the letter of his agents, Richmond & Titus, to the Goodin Bank, as set forth in the seventh finding of fact. The third conclusion of law of the trial court adopts the language of this court with reference to that contention, and is a conclusive refutation of that claim. It says the authority given by Richmond & Titus to the Goodin Bank in the letter of September 22, 1884, is merely an instruction by one of Johnson’s agents to another, and cannot be construed into a contract between Johnson and the plaintiffs in error; and further, it appears that this instruction was revoked and others given. No legal liability of Johnson to the plaintiffs in error is shown by the facts contained in the record. It is recommended that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.	[ -13, 102, -36, 77, 26, -88, 40, -70, 27, -31, -74, 119, -17, -22, 9, 37, -89, -19, -43, 104, -123, -89, 122, 98, 82, -109, -45, -19, -75, -51, -12, 87, 76, 52, -54, -99, -58, 2, -51, 94, -58, -96, -71, -20, -35, 64, 60, 61, 86, 79, 117, -84, -13, 44, 21, 75, 109, 46, 79, 41, -47, 120, -85, -107, 95, 31, 17, 116, -40, 67, -56, 14, -112, 53, 8, -40, 83, -90, -42, 117, 5, -103, 8, 38, 103, 64, -63, -17, -64, -106, 46, -6, -115, 38, -127, 72, 18, -118, -74, -114, -48, 16, 55, 118, -30, -35, 21, 108, -121, -113, -106, -93, -113, 106, -102, 3, -41, -114, -80, 81, -51, 34, 94, 69, 48, 27, -113, -20 ]
The opinion of the court was delivered by Smith, J.: This action was brought in the name of the state of Kansas, on the relation of the attorney-general, to oust the city of Atchison from exercising certain powers it had assumed to exercise in the passage of ordinance No. 3096. The ordinance purports to annex sixty-five acres of land to the city, which power it is alleged was not authorized by law but was usurped. The relief asked for, as stated by the appellant, is: “The prayer of said petition was that the said City be required to answer all such matters; that it might be ousted forever from the exercise of said usurped corporate powers, and that its said action in the pas sage of said ordinance, and attempt to annex said sixty-five acres of land to the City of Atchison, as a part thereof, should be annulled and held void, and in excess of its corporate power.” The city, in its answer, admitted that it was a city of the first class, as alleged by the appellant; that is had all the powers of such a city, and that included in such powers was the power to annex to the city unplatted lands which lie within or mainly within the city, and that the 65-acre tract described in the petition was unplatted land and lies mainly within the city of Atchison. The entire boundary of the 65-acre tract is set forth, with the length in feet of the several boundary lines. To this answer a demurrer was filed, particularly to the third paragraph describing the metes and bounds of the tract. The demurrer was overruled. Thereupon a reply was filed which contained a general denial except as to facts previously admitted. The reply further alleged that the boundary lines of Atchison, as described in the answer, had never, previous to the passage of ordinance No. 3096, been established by any legal or valid ordinance and that said ordinance was therefore void. ■ The case was tried to the court without a jury. The appellant, assuming the burden of proof, introduced evidence tending to show that the 65-acre tract of land had been laid off in lots, blocks, streets and alleys in 1860, but that by proper proceedings by the board of county commissioners the tract was expunged from the record and restored to its former condition of unplatted land; also evidence tending to show that more than one-half of the boundary of the 65-acre tract did not consist of the boundary lines of the city prior to the passage of ordinance No. 3096, except as the same were attempted to be changed by ordinance No. 3074 and ordinance No. 3096. To this evidence the city interposed a demurrer, which was overruled. The appellant produced in evidence ordinance No. 8096. Thereupon the appellee offered in evidence ordinance No. 3074, to which objection was made that it was incompetent and immaterial and because the ordinance itself showed that it was not passed in pursuance of any law of the state. No foundation was laid for the introduction of the ordinance, nor was there any evidence tending to show any invalidity therein. This obj ection was overruled and the ordinance read in evidence. Appellee thereupon introduced as a witness one Altman, who testified that he was city engineer of the city of Atchison, and produced a- plat which he testified he had prepared from descriptions he got at the courthouse. Whereupon the following questions were asked and answers returned:' “Q. What, if any, ordinance did you use in defining the boundaries of the city? A. The ordinance prepared before 3096. “Q. 3074? A. Yes, sir. “Q. This plat shows the boundaries of the city drawn by you from that ordinance ? A. Yes.” There was no evidence showing the boundaries of the city except ordinances Nos. 3074 and 3096, and the plat made therefrom by the city" engineer. Appellant thereupon filed a motion for judgment in its favor, which was denied. In 2 Dillon, Municipal Corporations, 5th edition, section 649, it is said: “It will be presumed that an ordinance is valid and the burden of proving its invalidity is on the person asserting it.” The ordinance could only be valid if one of the conditions prescribed by section 872 of the General Statutes of 1909 existed; hence the presumption of validity carries with it a presumption of the existence of such condition. The presumption that the ordinance is valid is not conclusive, but is sufficient to- cast upon appellant the burden "of proving its invalidity. No evidence whatever being offered, the court did not err in admitting the ordinance in evidence. The ordinance, No. 3074, described the boundaries of the land thereby annexed to the city, and thereby furnished the basis for the enactment of ordinance No. 3096. We have not overlooked the contention of appellant that in a quo warranto proceeding, as in the case of McGahan v. The People, 191 Ill. 493, 61 N. E. 418, the burden of proof is upon the respondent. In this case the introduction of ordinance No. 3074 met the requirement, and the burden of proof, as we have seen, shifted upon the appellant. The court made findings of fact which, in substance, gave the boundaries of the tract annexed by ordinance No. 3096; that it contained 65 acres, more or less, and was unplatted; that ordinance No. 3074 defined the boundaries of the city just prior to the passage of ordinance No. 3096, and, in substance, that ordinance No. 3074 defined the boundaries of the city so that the boundary of the 65-acre tract in its entire length was 7290 feet, of which 4645 feet was coextensive with the boundary of the city of Atchison immediately prior to the passage of ordinance No. 3096; that the 65-acre tract of land lies mainly within the city of Atchison, and in effect that ordinance No. 3096 was duly passed, signed and published. As conclusions of law, the court found that ordinance No. 3096 was duly passed and is a valid ordinance of the city, and the city had the power to adopt such ordinance; that the annexation of the 65-acre tract of land by Ordinance No. 3096 was legal and valid, and not in excess of the power of the city. Judgment was rendered for the defendant. Motion for new trial was overruled. The principal question in this case seems to be when the validity of only one ordinance of the city is attacked, and its validity depends upon the validity of a prior ordinance, whether the burden is imposed upon the city to establish the validity of the prior ordinance which is not attacked. If so, it may be said the validity of the prior ordinance may depend upon the validity of an ordinance prior thereto, that the city must establish the validity of each sustaining ordinance so long as the validity of each ordinance depends upon the validity of a prior ordinance. The converse is that the validity of a sustaining ordinance, regularly passed, approved and published, is to be presumed until the validity thereof is impeached. The petition in this case admitted the legal existence of the city of Atchison, and it is contended by appellee that such admission admits the corporate boundaries of the city except so far as such boundaries are put in issue. On the other hand, the appellant claims, in substance, that its allegation that the city had no authority to annex land attempted to be annexed by a certain ordinance, the validity of which depends upon the validity of a prior ordinance, 'the burden rested upon the city to establish the validity of the antecedent ordinance. In appellant’s supplemental brief it is asserted that “the act of the territorial legislature of 1858, incorporating the city of Atchison, specially defined its boundary, and, nothing further appearing, each ordinance, No. 3074 and No. 3096, was void.” If this be true it might be necessary to sustain the validity of ordinance No. 3096, which only is attacked, to establish the validity of every ordinance affecting the corporate boundaries of the city which has been enacted since 1858. This would impose an unnecessary burden upon the city. No specific facts are alleged in the petition as to the invalidity of any prior ordinance, .and the relief prayed for, as we have seen, relates only to ordinance No. 3096. The judgment is affirmed.	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The opinion of the court was delivered by Valentine, J.: This was an action of replevin, brought in the district court of Sumner county by George M. Miller, as cashier of the First National Bank of Wellington, against L. W. Hamilton, C. C. Hamilton, John H. Hamilton, and -Horsley, to recover certain neat cattle, .of the alleged value, in the aggregate, of f9,450. The plaintiff claimed a. special ownership therein, with the right to the immediate possession thereof, under a certain chattel mortgage executed by L. W. Hamilton, as the owner of the cattle, to Miller, as cashier, etc. The case was tried before the court and a jury, and the jury found generally in favor of the plaintiff and against the defendants, and also found that the value of the property in controversy was $4,305, and that the amount of the mortgage debt was $6,223.56; and the court rendered judgment accordingly in favor of the plaintiff and against, the defendants in the alternative for a return of the property, or for the value thereof, to wit, $4,305, together with interest and costs; and all the defendants except L. W. Hamilton bring the case to this court for review, making themselves the plaintiffs in error, and George M. Miller, cashier, the defendant in error. The only substantial question involved in this controversy is, whether the aforesaid L. W. Hamilton was the owner of the cattle in controversy at the time of the execution of the aforesaid chattel mortgage, or whether the aforesaid C. C. Hamilton, his father, and John H. Hamilton, his brother, were at that time the owners thereof. Ample evidence was introduced on the trial to prove that L. W. Hamilton was the owner of the cattle, and that his father and brother were not the owners; and therefore that question must now be considered as at rest. But it is claimed by the plaintiffs in error that various errors occurred during, the trial in the court below, which will require a reversal of the judgment of that court. Whether this is correct or not, we shall now proceed to consider. The first and principal claim of error, as stated in the brief of counsel for the plaintiffs in error, is as follows: “The evidence showed that L. W. Hamilton did not claim any cattle except those he claimed to have bought from his father, and their increase, and that there were about 30 or 35 head of cattle bought by John (J. H. Hamilton), in 1884 or 1885, ancl put in the herd. They were marked in the same way as the balance of the herd, and were never separated from it up to the time the suit was brought; yet when L. W. Ham-, ilton was put on to prove his title to the cattle included in the mortgage, and their identity with the cattle he had bought from his father, the court refused to permit the defendants to show, upon the cross-examination of said witness, as to how many of those cattle were separated from the cattle taken in replevin, although the witness assisted in making the separation.” Counsel for the defendant in error, who was plaintiff below, answer this as follows: “The court did not refuse to permit the defendants to show, upon cross-examination of L. W. Hamilton, how many of the said 30 or 35 head of cattle were separated from the cattle taken in replevin, as claimed in the brief of the plaintiffs in error, but, on the contrary, allowed very great latitude in the cross-examination of witness upon that question, and only refused to allow such examination continued after it had been thoroughly gone over by the witness on cross-examination.” The question objected to, and the objection and the ruling of the court thereon, as shown by the record, are as follows: “Ques. How many of those cattle that John put in there did you pick out? “ (Counsel for plaintiff objects to this question for the reason that it has been answered, and for the further reason that the witness shows that he cannot tell. The court sustains the objection.)” Up to this point the record contains about 70 pages, in type-writing, of cross-examination, about five times as much as all the examination-in-chief, “and the end is not yet.” This matter had already been amply gone over on the cross-examination. And the record shows specifically, with respect to this matter, that the following, among other questions had been propounded and answered, to wit: “Ques. How many did you pick out? Ans. I don’t know; I didn’t keep any memorandum; it seems to me, though, that it was some 20, may be 30'; I don’t recollect just how many.” While a trial court should always be liberal in permitting a full and exhaustive cross-examination, yet it may nevertheless, in the exercise of a sound judicial discretion, impose reasonable limits. The next claim of error is, that the court below permitted L. W. Hamilton on his redirect examination to testify as to threats made to him by a Mr. Horsley, who claimed to have purchased from the witness’s father and brother a portion of the cattle. The question and answer objected to are as follows: “ Ques. What did he say about your getting out of the country? Ans. He said that I had better get out of the country.” This had reference to matters testified to upon the cross-examination of this witness, and brought out originally and for the first time by the defendants below, a portion of which testimony brought out on cross-examination is as follows: “It was right at the time — the morning after the cattle were attached. Mr. Horsley came up there and tried to bluff me, but I did not take a bluff very well. He told me that if I did not get out of the country that they would put me in the penitentiary.” Certainly no error was committed by the trial court in permitting the plaintiff, after the foregoing testimony was given on the cross-examination, to ask and to have answered by th'e same witness the above question on the re-direct examination. The next supposed error is, that the court below permitted a witness to answer a question over an objection of the defendants that the question was “double” and “leading.” No error was committed in this respect, either in substance or in form. The next complaint is, that the court below permitted the plaintiff to prove the signature of the wife of C. C.' Hamilton; but in what respect this was prejudicial, is not shown. There are many other supposed errors, but we do not think that it is necessary to mention all of them, nor to follow them in their order as presented by the plaintiffs in error. Of the remaining alleged errors, the ninth is perhaps the most serious. The court permitted evidence of conversations had between the defendant L. W. Hamilton and others, not in the presence of any of the other defendants, tending to show that L. W. Hamilton was the owner of the cattle in controversy. The most of these conversations were had while L. W. Hamilton was in the actual custody of the property, and were therefore competent as evidence, not only as against him as a defendant, but also as against the other defendants. But some of them were possibly had at a time and place when and where L. W. Hamilton was not in the actual custody of the property. But in the light of the whole evidence — over 750 pages of type-writing — the error, if error, was wholly immaterial, and immaterial errors must be disregarded. In answer to the tenth supposed error, we might say that there can be no question in this case with regard to any supposed imperfect description of the property in controversy as contained in the mortgage. L. W. Hamilton, the mortgagor, is not complaining of any imperfect description, and if the property really belonged to him, as he claims, then the other defendants can have no reason to complain. The other defendants can have no right to recover property which does not belong to them. But the description was sufficient. There was sufficient evidence introduced on the trial to authorize the giving of the instruction with regard to estoppel; but even if there was not, still no sufficient exception was'taken to that or to any other instruction. Believing that substantial justice has been done in this case, and that no material error has been committed, 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 Benson, J.: The petition alleges: “That on the 22nd day of July, 1909, the said T. J. Myers, as the duly authorized agent of said plaintiffs, sold for the said plaintiffs two thousand barrels of pork at $21.05 a barrel, and the said T. J. Myers failed to remit the said plaintiffs the sum of $772.50 thereon.” The answer contained a general denial and a special verified denial of agency. A demurrer to the evidence of the plaintiffs wás overruled. The defendant offered no evidence, and judgment was rendered for the plaintiffs for $772.50, the amount claimed, with interest. The defendant appeals. The defendant contends that there was in fact no purchase or sale of pork; and that the transaction was a mere gambling speculation — a wager' upon the rise and fall of market prices, denounced as criminal by statute. The plaintiffs are farmers in Lyon county and the defendant is a broker in Topeka. On May 12, 1909, the plaintiffs sent an order to the defendant by telephone through a branch office in Reading for the purchase of 1000 barrels of pork, and on May 18 they sent in a like order for another 1000 barrels, all for September delivery. Notifications were received through the Reading office that these orders were filled at $18.15- and $18.40 per barrel, respectively. Margins of $200 on each order were called for by the defendant and remitted to him through the same office. About July-15, the plaintiffs, by telephone to Mr. Cross, the Reading agent, ordered the 2000 barrels of pork sold at the-market price of $21.05 per barrel. Soon after, a report, of such sale was received from the defendant, and on July 22 he sent a check, to the order of Mr. Cross, to cover the amount due to several parties in the vicinity, on like deals, including $5077.50 for the plaintiffs, which amount they received, leaving $772.50 of the profits which the defendants accounted for by crediting the amount to Mr. Cross. It appears that the Reading agency owed the defendant that amount on a settle-men of commissions and margins in this and other-like deals. Although the defendant insists that Mr.. Cross was not his agent, the evidence seems to establish that fact, but it may not be necessary to the decision of this case to precisely determine the relation between the defendant and Cross. The testimony of the plaintiffs shows that they had been engaged in deals in pork, corn and wheat for some time. They could not state-the number of transactions or whether there were as many as twenty-five deals in a year. In all these deals, except one in corn, there was no delivery made to or by the plaintiffs. In the corn deal the only delivery was by warehouse receipt, and a sale was made without rémoving the com from the elevator in Kansas-City. The telephone orders received from time to time by Mr. Cross were transmitted to the defendant. by private wire. Each deal was designated by a number in the defendant’s office and margins received were credited upon the number to which they applied, but they were not credited to the particular persons who .sent them in. Accounts of remittances and of commissions were kept with the Reading office, and daily settlements were made and commissions divided with that agency. It appears from all the evidence that there was no pork either bought, sold, or delivered in the transactions under consideration and no deliveries were intended. The business was all done on margins, put up as the market fluctuated. The amount included in the check, before referred to, for the plaintiffs, plus the balance sued for, was the difference between the price when the transaction was booked and the price when it was closed. Thus the plaintiffs staked $400 on an advance in the market, expecting to gain the amount of such advance or more, and willing to lose that sum and any amount additional they might put up after-wards if the market should fall. This method of gambling in commodities has met with general judicial condemnation, and independently of special prohibitory •statutes forbidding it courts have refused their aid to either party. Such transactions are very clearly described in Legislation against Speculation and Gambling in the Forms of Trade, by T. Henry Dewey, as follows: “Gambling on prices is betting on the rise or fall in market prices by means of pretended purchases and sales or pretended employment as a broker or commission merchant to make pretended purchases and sales. In other words, it is using the forms of buying or selling, or the forms of employment to buy and sell, where no real buying or selling or real employment is contemplated, the parties agreeing to settle with each other by the mere payment of differences between the prices of pretended purchases and pretended sales. . . . The usual implements of gambling on prices are a black-board, upon which are posted from time to time the market prices of stocks, cotton and other produce, slips of paper purporting to he orders to the keeper of the place to buy or sell for the account of the other party and other slips of paper purporting to be notices of purchases or sales made bW the keeper of the place for the account of the other party. Each transaction is settled by the payment of the difference between the price of a pretended purchase and the price of a pretended sale, it being agreed or understood that no delivery of the things pretended to have been bought and sold is ever to be made. A deposit is required by the keeper of the place which is called a margin, but is really security to him for the payment of the wager. If the market goes in his favor, he closes the transaction as soon as the fluctuation in price equals the amount of the deposit, which he then keeps; or it may be closed by the other party at any time before the loss to him equals the amount of the deposit. If the market goes in favor of the other party, the transaction is closed whenever he gives an order for that purpose, and then the keeper of the place pays to him the difference between the market prices of the pretended purchase and sale and returns the deposit. A place in which such pretended dealing is carried on is called a ‘bucket-shop.’ ” (pp. 5, 6.) Some of the testimony shown by the abstract is as follows. Mr. Cross testified: “Mr. Myers had a telephone wire in my office in the back room. When Carey Brothers or anybody wanted to place an order for pork, wheat or corn, they would call me up. When they wanted to buy or sell any pork they telephoned it in to me. ... I would make a memorandum of the telephone order. I have not got that memorandum; threw them away after they were O. K’d and the day’s business was over with. . . . The order usually read, buy or sell so and so, with the number, say 500 of pork, N. G. Carey Brothers. . . . I would number each order. . . . There were lots of other dealers. They made a lot of deals every day. If it was wheat they bought, it was one per cent per bushel, they would put up as margins; if they bought pork it was two and a half or five cents a barrel they put up. ... It was all done on the margin basis. There was no sale of any stock, pork, wheat or corn in any of these deals. When a man dealt with me, either buying or selling, I would take down his deal, charge him a margin on it and he paid the money to me, that is the margin, and I would remit the deal to Mr. Myers at Topeka, and Mr. Myers would receipt to me for the order that would come to me. ... If this pork had been bought on the 12th day of May and the pork went down next morning Mr. Myers would call on me for an additional five cents, and I would have to put it up. . . . If pork went down three cents he would call on me for margins, so much per thousand barrels. ... If the margin was not put up the deal was closed out. . . . Mr. Myers made his statement to me of the amount of margins each day, and just how my margins stood, and if I was shy he would call on me for it. He would make a settlement or statement every day. . . . The second deal with Carey Brothers was transacted in exactly the same way. . . . They had other deals, I could not say how many others; they had a good many. . . . Whenever Mr. Myers would remit me Saturday night he remitted me more money than the amount of Mr. Carey’s deals. He would remit me the amount of commissions I had earned during the week and the statement included, Carey’s deals, Jones’ deals and Brown’s deals. . . . The checks averaged weekly all the way from thirty dollars up to ten thousand dollars, and they represented the closing of transactions between me and Myers.” The plaintiff R. E. Carey testified: “I had a conversation with Myers concerning the establishing of an office in Reading, Kansas. I met Mr. Myers at our farm. Our conversation was in regard to establishing a branch office at Reading. Said he came to solicit our business. . . . Mr. Myers said, you would not have to trust him (Cross). The business is done through me. ... I dealt in margins right along. Before the time for delivery I disposed of it, if there was a profit in it, and in all these transactions I simply put up a margin whenever it was needed, as I was called on for it. As the market went down I would be called on for additional margins. . . . I frequently put up margins and when the market got right I would sell and take down the profits. . . When I ordered this pork I telephoned the order to Mr. Cross. ... He asked for $200.00 margin. ... I sent him a check for $200. I keep my checks for receipts. ... He told me over the ’phone my order was filled and gave me a number. . . . I was never called on for a re-margin on those purchases. From those two purchases I received $5077.50, upon which I had placed only a margin of $400.00. The pork never was delivered to me..... I don’t remember whether in the deals we had during that year my brother and I received the sum of eighteen or twenty thousand dollars from Mr. Cross.” The defendant testified: “I could not figure out how much Carey Brothers had deposited as margin. I have no record in books as to the amount of margins put up or how much margin was put up. I never knew how much margins anybody at the Reading office put up. ... I did not know how much margin every man put up, but I knew how much each number put up. I knew how much margin every number brought, certainly, and made it a matter of record in my office, and I knew how much margin was on Nos. 613 and 632. . . . - Mr. Cross made a lot of trades in pork, but I don’t remember any particular order, when they were made or whom they were made for. . ,. . Had no way of making an investigation. The records had all been destroyed. I saw Mr. Carey once. I don’t know that I ever threatened Mr. Carey with closing out his deals and taking the losses the other parties at Reading out of those pork deals. I threatened Mr. Cross, not Mr. Carey, that I was going to close his trade. . . •. Mr. Cross had told me they were Carey’s deals. Mr. Cross told me he had some pork deals booked with other people down there, had lots of other deals. We closed them all out. . . . The orders were by number. There would be several others come along together all by number. r . . When an order came in saying buy one thousand barrels of pork as testified to here, signed E. M. Cross, that order was put to E. M. Cross, credited to his account, and all other orders that came in the same day were credited the same way and a, statement sent each day showing just how many orders, purchasing or buying or closing- out of that day to E. M. Cross each and every day, and those statements. showed exactly the transactions for the day, the money received, the money remitted to him less the commission that I would be entitled to in placing those orders. . . . I never sold or disposed of two thousand barrels of pork for Mr. Carey or Carey Brothers. I never had two thousand barrels of pork in my possession nor under my control for Carey or Carey Brothers.” The statutes relating to this subject in force when the orders were placed provided: “Every person who shall buy, sell, exchange, or in any other manner deal in grain, stocks, bonds, securities, provisions, or any other commodities whatsoever, upon telegraphic or telephone market reports and quotations, it not then being the intention of such person, in pursuance of such purchase, sale or exchange, to receive or deliver such grain, stocks, bonds, securities, provisions, or other commodities, and the said person selling or agreeing to sell not then being in the possession and control of such grain, stocks, bonds, securities, provisions, or other commodities, shall on conviction be adjudged guilty of a misdemeanor, and shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months.” (Laws 1899, ch. 77, § 1, Gen. Stat. 1909, § 5167.) The act also defined and prohibited the keeping of “bucket shops,” where telegraphic or telephone market reports or quotations upon, the commodities referred to were received or made public by blackboards or any other manner, where persons resorted for the purpose of buying, selling, exchanging or dealing in such commodities, where such persons did not intend to receive or deliver and were not in possession and control of the same. The places referred to were declared to be nuisances, and violations of the statute were declared io be misdemeanors subjecting the offender to fine and imprisonment. By chapter 121 of the Laws of 1909, which took effect May 29, 1909, the act of 1899 was amended and new sections were added, but the section above quoted remained unchanged. Section 2 of the act of 1909 contains the following: “All pretended purchases and sales or contracts and agreements for the pretended purchase and sale of the commodities aforesaid, in manner aforesaid, wherein there is, in fact, no actual purchase and sale or sale and purchase of such commodities for or on account of the party or parties thereto, are hereby declared gambling and criminal acts, whether the order or contract for the pretended purchase or sale of such property purports to be offered, accepted, executed or consummated in this state or in any other state or country: Provided, The offer to make such pretended purchase or sale of said property is placed or given or communicated from this state; and any person violating the provisions of this section shall be guilty of a felony.” (Gen. Stat. 1909, § 5169.) It will be seen that the section first copied was in force during the time covered by the transactions under consideration here, but the section last copied did not take effect until a few days after they were commenced. The statutes remaining in force are sections 5167 to 5176, inclusive, of the General Statutes of 1909. The plaintiffs deny that the deal was in violation of law or public policy, but earnestly contend that if it was they may still recover the profits of the game on the ground that it was closed and the money was in the hands of their agent, which he can not withhold merely because it came to him through an illegal transaction. (Floyd v. Patterson, 72 Tex. 202, 10 S. W. 526, 13 Am. St. Rep. 787.) Decisions supporting this proposition rest upon the principle that money may be recovered from one who receives it, by one for whose benefit it was paid, if such recovery does not involve the enforcement of an illegal contract. (Willson v. Owen, 30 Mich. 474.) Money deposited with a third person under an arrangement with a broker, to be used as margins in deals of this nature, may be recovered by the customer before it is so used, it being con sidered as in the hands of a stakeholder. (Dauler et al. v. Hartley et al., 178 Pa. St. 23, 35 Atl. 857.) An agent entrusted with money to purchase property at a judicial sale under an illegal agreement to suppress competition can not withhold a surplus after the agreement is fully executed. (Hardy v. Jones, 63 Kan. 8, 64 Pac. 969, 88 Am. St. Rep. 223.) The same rule was followed in Ware v. Spinney, 76 Kan. 289, 91 Pac. 787, 13 L. R. A., n. s., 267, where it was said that parties seeing the error of their ways are given an opportunity to repent and rescind. The question is whether the principle of these and similar cases is applicable where the transaction is entirely between the broker and the customer, where no purchases or sales are in fact made, and there is only a settlement of differences in the market price between the dates of opening and closing the transaction. In a similar transaction in Pennsylvania, one Ruchizky dealt.in stocks on margins with De Haven & Townsend, brokers. An action was brought to recover the margins. In the opinion it was said: “When, under the case stated, the court below assumed the defendants must be regarded as the agents of Ruchizky in the buying and selling of stocks, in other words, as the mere hand or medium through which he acted in transactions with other parties, it committed an error. An assumption of this kind is in the very face of the statement before us; the parties were dealing, not in stocks, but margins, and Ruchizky knew no principals but De Haven & Townsend. It was with them and no one else he was dealing, and with them alone he had to account.” (Ruchizky v. De Haven, 97 Pa. St. 202, 209.) While that opinion has been criticised in respect to its interpretation of the facts, the -quotation is made to show that the proposition that a recovery of profits in the hands of the broker, where the transaction is a gambling one, on the ground that he holds it as agent, is not adopted in Pennsylvania. In Pearce v. Foote, 113 Ill. 228, involving option deals, the court, after referring to the statute declaring such deals unlawful, said: “The suggestion that Hooker & Co. merely acted as the agents for plaintiff in these unlawful transactions may be rejected at once as having nothing in its support. There is and can be no such thing as agency in the perpetration of crimes or misdemeanors, or, indeed, in the doing of any unlawful act. All persons actively participating are principals. Treating all the parties engaged as principals, it is immaterial to which one the money or property lost was in fact paid or delivered— whether to Hooker & Co., or to any of the parties on the board of trade with whom- they may have made fictitious contracts and lost, — and paying to either principal is, in law, paying to the ‘winner.’ ” (p. 238.) In Norton v. Blinn, 39 Ohio St. 145, although a recovery of money accruing from a similar illegal transaction was allowed, it was said: “In offenses against trade, and the like, the law regulating the administration of penal justice, does not recognize the relation of principal and agent, unless the agent be an innocent instrument merely. In such cases the guilty offenders against the law are all principals; hence, as between such, with some show of reason, it might .be said that the law will afford no redress by civil remedies.” (p. 149.) In Lester v. Buel et al., 49 Ohio St. 240, 30 N. E. 821, 34 Am. St. Rep. 556, the claim that the broker in such a transaction is the agent of the party who gives the order and puts up the margins is repudiated. The court said: “If these purchases and sales of grain were in fact wagers on the future price of the grain ostensibly dealt in, then it is clear that the relation of principal and agent did not exist between the defendants and the plaintiff, and, that they were such, was found by the verdict of the jury under proper instructions from the court. . . . The assumption of the plaintiff that he was buying or selling wheat for the defendants, was a mere disguise adopted for the purpose of concealing the nature of the real transaction; and, as it had no f ounda tion in fact, the agency based upon it is alike a mere assumption and had no real existence.” (p. 254.) The discussion of this question in the case last cited appears to meet the argument based upon the agency of a broker in such cases, holding to the rule that the parties are partieeps criminis. (See, also, Note, 13 L. R. A., n. s., 267.) A multitude of cases hold that a broker in transactions of this nature can not recover for losses. One of the more recent cases is that of Anderson v. Holbrook, 128 Ga. 233, 57 S. E. 500, where it was said: “If the broker is a privy to the wagering contract, and brings the parties together for the very purpose of entering into the illegal agreement, and advances money for margins in furtherance of the transaction, he can not recover it.” (p. 239.) A concise statement of the same rule, with references to many decisions supporting it, will be found in a note appended to the report of the same case in 11 L. R. A., n. s., 575. The same principle was declared in Irwin v. Williar, 110 U. S. 499. Although in these cases the broker sought to recover from the supposed principal, decisions are not wanting applying the same rule against the broker in actions for profits. It was held in Clarke, Harrison & Company v. Brown, 77 Ga. 606, 4 Am. St. Rep. 98, that the profit on futures in grain can not be recovered from an agent who won it for his principal with the use of the latter’s money on the illegal venture. That, however, was an action to recover of the principal money deposited with the agent, and a recovery was allowed. But the court said: “If it had been won as profits on the venture, it could not have been recovered back from agents, who got it for the principal with the use of the principal’s money on the illegal venture, because that would be money recovered on a chance venture, and considered by this court as equivalent to a gambling venture. . . . The agents can not set up the illegal contract, because they made it, and got a consideration for using the money illegally, and are particeps eriminis. Just as if it had been necessary for the plaintiff — the principal — to use the illegal contract to recover the money, which would have been necessary had he sued for the profits of the venture; so it is illegal for the agents to use it to defend the suit for money they have belonging to the principal.” (pp. 609, 610.) A broker in Boston received an order to buy wheat, accompanied by the deposit of a margin, and bought, “deliverable seller’s option” two months later. The customer ordered a sale, which was made at a profit, and the broker sent a statement of the account, showing the balance due. In an action against the broker for this balance, a defense was made on the ground that, the deal involved a gambling transaction, and therefore was void. The defendants offered evidence tending to prove that the purchase and sale were merely formal, constituting a wager on the price of wheat, to be determined by the difference in quotations at the time of the pretended purchase and sale, and the court found in their favor. On appeal it was held that the trial court did not err in refusing an instruction that the brokers were agents, and as such were not entitled to set up the transaction by which the money came into their hands. The court said in the opinion that the defendants, the brokers, were principals in dealing with the defendants-(the customers). (Wakefield v. Farnum, 170 Mass. 422, 49 N. E. 640.) While the opinion is quite brief, it appears to refute the contention of the plaintiffs in this case that the defendant can not maintain a defense based on the illegality of the transaction. In the opinion in Peters et al., Appellants, v. Grim, 149 Pa. St. 168, 24 Atl. 192, 34 Am. St. Rep. 599, affirming the general rule that a purchase and sale of stock on margins, when there is to be no delivery, is a gambling transaction, earlier Pennsylvania cases on that subject are. criticised, but the court said that in this, class of cases the decisions had only gone so far as to sustain the opening of the whole transaction after it had nominally closed, where the demand is for a part of the actual gains or losses of the illegal acts, thus placing the recovery of gains and losses, as the case may be, upon the same footing. In Kahn, Jr., v. Walton et al., 46 Ohio St. 195, 20 N. E. 20B, the general subject is thoroughly considered, citing many decisions holding that in such cases the broker is particeps criminis and can not recover for advances or losses; that checks given to him for forwarding the unlawful undertaking are tainted with the vice of their origin; and that the transaction was void under the statute and upon principles of public policy. The court said: “In contracts of the kind now under consideration, we have held that they are inoperative and void, as contrary to good morals and positive enactment, and that as such, they are not fit subjects for the action of a court; it is true that in all the cases we have heretofore had, the attempt has been to enforce them; but we can see no difference in the position of the winner and loser, so far as to their right in becoming active movers upon such contracts in the courts.” (p. 209.) A majority of the court in that case held that the plaintiff, who prayed for cancellation of the checks and an injunction to prevent their payment, should have no relief, because he traced his cause of action through the illegal transaction, which he was obliged to prove as a basis for the relief sought. The court applied- the rule that in such a case equity left the parties where it found them. A minority of the court dissented only from the conclusion denying relief, and strongly insisted that the checks should be canceled. The underlying principle which we believe to be applicable to this controversy is, that no action can be maintained on a contract the consideration of which is either wicked in itself or prohibited by law. (Armstrong v. Toler, 24 U. S. [11 Wheat.] 258, 271.) Courts will not aid in the enforcement of such a contract. To compel one party to render to the other the service or payment stipulated in the corrupt bargain is to enforce it. As we have seen, the authorities are overwhelming to the point that the broker can not compel the payment of losses. On the same principle, the patron or customer can not compel payment of the gains. In Alexander v. Barker, 64 Kan. 396, 67 Pac. 829, it was held: “One of two parties to an illegal contract, who receives profits through the execution of it, will not be compelled to account to the other, because to require him to do so would be the enforcement of the illegal agreement.” (Syl. ¶3-) A like decision was made in Hinnen v. Newman, 35 Kan. 709, 12 Pac. 144. Referring again to the opinion in Norton v. Blinn, 39 Ohio St. 145, cited above on the proposition that in transactions of the nature under consideration the relation of principal and agent is not recognized, it should be stated that the court, notwithstanding its emphatic declaration upon that point, decided that a recovery of profits made in the illegal transaction should be allowed against the broker. Following the part of the opinion already quoted the court said: “The rulings upon this question, however, have been so uniformly the other way, it becomes our duty to follow them, unless we find them totally repugnant to public policy and morality. Upon a careful examination of the authorities, we find no such repugnancy— indeed they commend themselves to our judgment.” (p. 149.) Although the facts of that case differ in some respects from those appearing here, yet conceding that it is an authority of great weight in support of the plaintiffs’ claim, it still undermines a highly important ground upon which- their claim rests, and in our opinion its conclusion should not be followed in this case. The petition alleged, as we have seen, a sale of pork by an agent and that a balance of the money received remained in his hands. The only evidence was produced by the plaintiffs, and it failed to prove a transaction as alleged. On the contrary, it showed a gambling deal. The plaintiffs traced the money which they sought-to recover through an illegal transaction, condemned by the statute. The defendants received no pork when the deal was commenced nor afterwards, and did not-intend to receive any, as their entire course of dealing' and all the evidence shows. Having received no pork, they had none to sell or deliver. When the transaction-was closed out, they still had no pork to deliver, and it is not claimed that they intended to go into the market and procure it. It is true that one of the plaintiffs-testified that the defendant put out rules written over the market quotations on the blackboard in the Reading office that “in buying, actual delivery was contemplated.” Following this statement the counter-abstract-shows these questions and answers: “Q. Did you have any other idea in your mind at the time you gave the order? A. I didn’t. I was prepared to handle them. “Q. When was that pork, according to your orders,, to be delivered ? A. In September. “Q. You may state to the court about your being able to take that pork if it was delivered to you. A. I was ready to take it and handle it in any way I seen fit, and market it to the best advantage.” What the witness meant by “taking and handling the pork,” as plainly appears from the course of dealing and all the evidence, was to close it out on the differences in market quotations; to his profit if the market advanced; to the loss of his margins if it receded. This accords with all his testimony, a part of which is quoted above. It is impossible to find otherwise upon the evi dence. The legend above the blackboard was unnecessary if transactions were legal. Besides, Mr. Cross, who was in charge of the blackboard and received the order, testified, “I never delivered any pork to Mr. Carey and never intended to. It was all done on the margin basis. There was no sale of any stock, pork, wheat or corn in any of these deals.” We conclude from the undisputed facts of this case, as shown by the evidence, that the transaction out of which the balance claimed by the plaintiffs was evolved is in plain violation of the statute. No parties appear in this transaction except the plaintiffs, the defendant, and Mr. Cross, through whom the orders were given and the margins paid, and who may be dropped out of sight in determining the rights and liabilities of the parties in this action. The parties mutually engaged in an illegal deal, condemned by public policy and by the statute. Each hoped to gain by the transaction. The defendant, we must suppose, did gain at least by the amount of commissions received. The plaintiffs gained over $5000 by their wager, actually paid, and would gain in addition the balance sued for if the court could enforce the illegal venture. Upon well-settled principles of equity it will not assist either party to compel the other to keep his promise. The following language in the syllabus of Setter v. Alvey, 15 Kan. 157, is deemed pertinent: “Where both parties to a contract void as against public policy are equally at fault, the law will leave them where it finds them. If the contract be still ex-ecutory, it will not enforce it, nor award damages for its breach. If already executed, it will not restore the price paid nor the property delivered.” A promissory note made in renewal of another given to cover margins in a gambling transaction in grain prohibited by the statute in question is void between the parties. (Hutchins v. Stanley, 88 Kan. 739, 129 Pac. 1180.) (See, also, Washer v. Bond, 40 Kan. 84, 19 Pac. 323, and Dolson v. Hope, 7 Kan. 161, syl. ¶ 3.) The judgment is.reversed and the cause remanded with directions to sustain the demurrer to the evidence.	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The opinion of the court was delivered by Mason, J.: C. G. Davis sued Coler L. Sim and others for injuries to his property caused by a flood which he alleged to have been occasioned by the giving way of a dam maintained by them, due to negligence in its construction. A verdict was rendered for the defendants, the special findings showing that the jury were of the opinion that the flood that caused the injury was not the result of the going out of the dam. Judgment was rendered in accordance with the verdict, and the plaintiff appeals. A reversal is asked principally because of the over ruling of a motion for a new trial on the ground of newly discovered evidence. The answer, in addition to . a general denial, contained allegations that if the plaintiff’s premises were flooded, and if the dam went out, the cause thereof was a rain of such extraordinary volume that it could not reasonably have been anticipated. There was evidence for and against the proposition that the volume of the rainfall was unprecedented. There was also evidence on both sides of the question regarding the exercise of due care in the construction of the dam, and the .jury may have thought that the defendants were negligent in. this regard, but that the negligence was not the proximate cause of the plaintiff’s injury. The plaintiff’s property, where the damage was done, was situated four or five miles below the dam. The jury obviously concluded that the loss was not due to the breaking of the dam, for they found specially that the water was highest on the Davis land between four and five o’clock in the afternoon, and in effect that the dam did not go out until some time after that. One of the defendants and four other witnesses testified that they were at the dam just before dark (the date was May 31), and that it had not then gone out. The plaintiff had no direct evidence on the subject, and his newly discovered evidence is that of three persons who make affidavits that they saw the dam go out in the afternoon (of May 31, 1908), between three o’clock and half past four. This evidence can not be regarded as cumulative, for while it was of the same character and bore upon the same point as that introduced by the opposing party, it was to the contrary effect. (Haughton v. Bilson, 84 Kan. 129, 113 Pac. 400.) The new evidence is so important that its weight is a matter that ought to be determined by the jury, assuming that due diligence was shown in procuring it. The testimony of the five witnesses for the defendants, as to the time the dam went out, if accepted as correct, was practically conclusive against the plaintiff. He was able to oppose it only by inferences. The three newly-found witnesses offer directly contrary testimony, presenting an issue of veracity. If the jury should find their testimony persuasive, a verdict for the defendants might still be returned, but it would have to be based upon different grounds from those on which the first one rested. The considerations upon which it must be decided whether the plaintiff showed sufficient diligence to entitle him to a new trial on the ground of the discovery of this evidence are somewhat complex. The new witnesses are Frank O. Hoff, his wife and daughter. The affidavits in support of the motion allege these facts: Hoff and his wife and their daughter were living near the dam at the time of the flood, as tenants of the defendants. When the plaintiff began looking up the evidence in his case, he knew that Hoff lived near the dam. He believed that Hoff might know something as to when the dam went out, and made search for him, finding him at Goddard, to which place he had moved. The plaintiff asked him what he knew as to when the dam went out and matters connected therewith. Hoff refused to tell him. The plaintiff regarded Hoff as hostile to his interests, but intended to subpoena him. Several months before the trial Hoff removed -from the county, and the plaintiff did not know until the preliminary statement of counsel at the trial that the defendants claimed that the dam did not go out until after five o’clock. The trial began November 2, and ended November 11, 1911. On November 5 the plaintiff learned that Hoff had a sister living at Viola, and was told by her that Hoff was living near Cherryvale; he was unable to pursue the inquiry until after the verdict had been rendered. Immediately thereafter the plaintiff went to Cherryvale, but was unable to find Hoff or his residence. “After great difficulty and diligent search” (no particulars of which are given) the plaintiff found Hoff in a small town six miles north of Neodesha (the date is not stated). He then learned what Hoff and the other two witnesses could testify to. The defendants filed affidavits tending to show that Hoff and his family connections were so well known in Goddard that an inquiry there would readily have disclosed his residence, and that Hoff had given a statement to the defendants shortly after the flood that is inconsistent with his present testimony. They also introduced oral evidence contradicting Hoff’s affidavit as to what took place on the day of the flood. Witnesses for the defendants also testified orally as to what had been known concerning Hoff’s residence. The denial of the motion for a new trial means the final defeat of the plaintiff by the verdict of a jury who heard no evidence in his behalf upon a vital question in the case. The granting of the motion leaves the matter to be heard by a new jury in the light of all the evidence now procurable on both sides, and subjects the defendants only to the inconvenience of another trial, if their view of the facts is finally upheld. The court reaches the conclusion that sufficient diligence is shown to require the granting of the motion. The jury found that the storm of May 31 was an extraordinary one, extending in its sweep over several townships. It is suggested that this finding compels a judgment for the defendants irrespective of when the dam went out. The use of the term “extraordinary” in characterizing the storm is not conclusive. The test (as the court properly instructed) is whether reasonable diligence required it to be anticipated and guarded against. Complaint is made of an instruction to the effect that in building the dam the defendants were not bound to take into consideration conditions further down the stream. It seems clear that no actual prejudice resulted, but the language may have been so broad as to be subject to misapprehension. It is hard to see how conditions below the dam could affect the pressure it would have to withstand, but if such conditions could arise they should doubtless be taken into account. The judgment is reversed and a new trial ordered.	[ -29, -24, -76, -83, 26, -32, -22, -110, 73, 32, -9, 83, 13, -125, 24, 103, -58, 109, -12, 107, 70, -89, 23, -29, -46, -45, 123, -49, -77, -4, -20, 93, 76, 32, -126, -43, 102, 74, -43, -48, -50, -106, 32, -27, -40, 24, 52, 43, 54, 15, 117, -97, -13, 47, 29, -61, 41, 40, -37, -68, 64, 113, -118, 79, 95, 4, 51, -90, -98, -61, 104, 62, -112, 49, 0, -24, 114, -74, -122, -12, 97, -101, 8, 114, 103, 1, 61, -17, -7, -104, 47, -42, -113, -90, 21, 8, -54, 97, -74, -99, 112, 20, -90, 126, -18, -51, -35, -84, 39, -97, -110, -69, -51, 60, -102, -95, -61, 51, 50, 112, -113, -22, 76, 69, 81, -99, -100, -34 ]
The opinion of the court was delivered by West, J.: On April 12, 1911, the city accepted the bid of a paving company to curb, gutter and pave Twelfth avenue. On the following- day a street-car franchise authorized by popular vote was accepted in writing by the assignors of the street railway company. The contract with the paving company provided for a double foundation consisting first of a subgrade of natural earth, thoroughly compacted as therein specified, upon which subgrade a course of concrete was to be laid, in no place less than four inches in thickness, and upon such double foundation was to be laid a two-inch course of asphaltic concrete. The franchise ordinance provided, among other things, that all tracks should be so constructed and maintained at all .times as not in any way to impede the free use of the street by the public, and should be so laid as to interfere as little as possible- with the public travel on the street, and in case of laying and relaying or repairing tracks the grantees were to put the streets in as good condition as they were before such work was done, and when the grantees should occupy any street or part thereof paved or macadamized by the city they were to repair all of that portion lying between the inside of the ties whenever the same should get out of repair and keep and maintain the track at all times in good condition, and upon failure so to repair after reasonable notice the city was "authorized to make such repairs at the expense of the grantees, and if not paid within thirty days thereafter to maintain an action therefor. Another section provided that whenever it became necessary to pave any street over' which tracks were laid or being laid the grantees should pay for paving between the tracks and for 18 inches on the outside thereof, “the said work to be estimated and the construction contracted for by the city, with the contractor in the same manner and at the same price per square yard as the balance of the street is awarded to them, and payment for said paving shall be assessed and be a lien on said street railroad, to be paid for in installments in the same manner as payments are required to be made by the owners of abutting real estate in said street.” Another section provided that the grantees' should furnish a bond in the sum of $5000 to secure the performance of these conditions, but such bond was never given. The paving company gavé a bond in the sum of $75,000 for the faithful performance of its contract, also a maintenance bond in the sum of $5000. The railway company contracted with a construction company for the building of its line. The paving company claimed the right to occupy the streets, and objected to the placing thereon of ties and rails unless satisfactory arrangements could be made between it and the construction company. Whereupon the construction company, unknown to the city, made a contract with the paving company, by the terms of which the former was to place the track on the street in accordance with the line and grade as given by the city engineer, and make the necessary excavation, and when the track should be laid to fill up with gravel between the rails for eighteen inches on the outside thereof, uniformly within two inches from the top of the ties and thoroughly tamped with gravel, and that thereupon the paving company should place upon this surface four inches in depth of concrete and two inches thereon of asphalt, so as to bring the finished track even with the top of the rails, and place sufficient grooves inside and along the rails to allow the flanges of the wheels to run therein freely. The construction company was to pay the paving company twenty cents -a square yard for the strip in addition to the paving company’s contract price with the city. About this time the defendant requested the paving company to use brick instead of asphaltic concrete for surfacing the part of the street to be occupied by the railway track, which under the contract was permissible if approved by the city commission. The paving company advised that it had already made a contract with a Kansas City firm for asphaltic concrete, and as no satisfactory arrangements could be made with that firm it would be impossible to accede to the defendant’s request. The commissioners of the city were twice requested by the defendant to permit the use of brick in this way, but took no action upon such requests. The cost of paving the strip occupied by the street railway track, except the cost of excavating, was assessed against the property of the railway company, payable in. ten annual installments, two of which installments were paid in July, 1913. The court found that the track was constructed in conformity with the contract entered into between them, but that the excavation was made about ten inches below the level of the subgrade established for the paving, in which excavation were placed the ties and rails properly united by spikes, and gravel was thrown in and the track elevated to the proper grade by tamping the gravel under the ties and to within about two inches .of the top thereof; that the subgrade upon which the foundation was laid was not compacted, but upon this foundation was laid four inches of concrete, and upon this two inches of asphaltic concrete. It was also found by the court that the plaintiff exercised no control over the defendant in digging the trench or in laying its track; that the commissioners, city engineer and the paving contractor had personal knowledge in a general way of the manner in which it was being done, the city engineer having general supervision of all paving in the city, and the laying of concrete and the asphaltic surface of the strip in controversy being under his general direction the same as the rest of the street. It was found that the entire cost of the reconstruction of the street-car track on the strip would be from $11,000 to $14,000, but that the evidence did not show the cost of repairing if repairs would be practical. It was testified, however, that the only way to remedy the defect was by reconstruction. It was found that the operation of loaded cars caused the track in question to vibrate and to sink underneath the weight, in places, from three-quarters of an inch to an inch; that later the asphaltic concrete on the inside of the rails began to disintegrate and pull loose, caused by the vibration and due to the instability of the base or foundation; that the asphaltic surface breaking away from the concrete base permitted the water to enter and freeze and thaw, causing the asphaltic surface to curl up to such an extent as to interfere with traffic; that the paving company, with the knowledge of the city and the consent of the defendant, attempted to repair this pavement on the strip in question by cutting out the broken portion of the asphaltic concrete next to the inside of the rails and filling in with concrete, which attempt was a failure owing to the fact that the concrete used in such repair work did not adhere to the concrete foundation, and to the fact that the running of the cárs caused such vibration and sinking as to separate the concrete repair from the four-inch base. It was also found that the gravel used by the defendant as ballast or foundation for its track was of inferior quality, insufficiently tamped, and that part of it was put in after a rain, when the trench was soft and muddy. “The use of inferior material and poor construction, as above stated, is the primary cause of the condition of the said street at the time of the commencement of this action and now.” That by reason of these things the track became uneven and in bad condition, and at the time of the trial was in numerous places from one to three inches below the level of the street, and the strip in question was unsafe and unfit for public use and travel. That the paving on the street in question had never been fully accepted solely because of the condition of the strip, but all of the paving except that on' the strip had been approved as satisfactory, and the paving company had been paid substantially in full therefor; that in June, 1912, the city sued the paving company and the surety company, charging faulty construction in that part of the street occupied by the street-car track and seeking to recover damages, but after learning of the contract between the construction and paving companies this action was dismissed without prejudice. The trial court after taking the matter under advisement gave judgment for the plaintiff and ordered the defendant to proceed forthwith to repair the strip in question, using either brick or asphaltic concrete as surfacing, and to put such strip in such condition as would present no obstacle to the use and travel of the street as a public thoroughfare. The railway company appeals and insists that the judgment is wrong because the city has a plain and adequate remedy in the ordinary course of the law; that the cause of action, if any, is doubtful, and that the alleged duty sought to be enforced is private and contractual and not of a public nature subject to enforcement by mandamus. It is complained that some of the findings .are unsupported by the evidence and that others are contrary to the evidence, also that the court erred in refusing to make certain findings requested by the defendant. We can not say that any of the findings are contrary to or entirely unsupported by the evidence or that material error was committed in refusing those requested by the defendant. Certain things are clear beyond question. The strip was not paved In accordance with the requirements of the paving company’s contract with the city. The method of the work, however, was fully known and understood by the city engineer and no protest appears to have been made while the work was in progress. The defendant desired and attempted to use brick instead of asphaltic concrete for the top course but was not permitted so to do, and had such permission been given some features of the alleged defect would have been eliminated. An attempt was made by the paving company to repair the defects complained of, but apparently without success. The work required by the trial court’s order is practically a reconstruction. According to the testimony of various witnesses versed in street railway construction gravel is fully as good as concrete for foundation 'purposes. The trouble now complained of seems not to consist of any defect in the track itself, but in the kind of paving and foundation used in the eight-foot strip, and there is much plausibility in the argument that for this the city should look to the paving company and its bondsmen or follow its contract and make the repairs and look to the defendant for the expense. Can the extraordinary remedy of mandamus be invoked in a case of such apparent hardship, or has the city a different but sufficient means of redress? It is demonstrated that the paving was not done according to the contract with the city, but differently according to the express terms of the contract made, without .the knowledge of the city, between the construction and paving companies, and that the kind of paving actually done was well known to the city engineer. But whether or not the city should be held to be at fault for negligently or tacitly permitting such work to be done, there is no escape from the fact that the defendant is directly responsible in the way already indicated, and if the method of paving thus used has proven bad it can not shirk the blame, and it remains to consider whether it can evade or avoid the responsibility. It is under a clear contractual duty to put the track in proper shape, and if the city must be restricted to an ordinary action at law the bad condition of the street and the track must continue or grow Worse pending the final result of such litigation. The recognized duty of the city to keep its streets in safe condition must be given due consideration, for the entire traveling public using the street are dependent on the city for the safety of passage thereover. No matter from what cause or by whose fault the paving was improperly done the franchise ordinance requires the railway company to keep its track in condition, and it was its duty to bear this in mind when contracting for the paving of the strip. It is unfortunate if to repair the track a repavement of the strip is necessary, but thát feature of the case is not determinative. Counsel cite numerous decisions to support their contention that mandamus will not lie, and assert that most of those relied on by the plaintiff are aside from the facts, here involved and hence inapplicable. But a consideration of the situation presented convinces us that the railway company, both as an occupier of a public street and as a contracting party, owes it to the city to put the track in proper condition. It is the duty of a street railway company, whether so obligated by its charter or franchise or not, to keep its track in repair so as not to obstruct travel across or upon it. (Railway Company v. State, 87 Tenn. 746, 11 S. W. 946; 83 Cyc. 236; 36 Cyc. 1403.) “The participants in this transaction are a branch of the law-making power of the state, on the one hand, and a corporation organized for public purposes, on the other. The subject of the treaty is a matter of purely public concern.” (Pitney, J., in Rutherford v. Hudson River Traction Co., 73 N. J. Law, 227, 237, 63 Atl. 84.) “We think public policy and public necessity alike demand that street railway companies should see to it that the streets between the rails and next to them on all sides should be kept level with the rails, or so nearly level as to not endanger the lives or property of those having a right to cross them or be upon them.” (Groves v. Louisville Ry. Co., 109 Ky. 76, 85, 22 Ky. Law Rep. 599, 58 S. W. 508, 52 L. R. A. 448, 457.) “Independently of charter provisions and of subsequent statutes and ordinances, the street railway company is bound so to conduct and maintain its road that the free use of the whole street by the public shall not be materially impaired.” (23 A. & E. Encycl. of L., 1st ed., 983.) To enforce the performance of similar duties mandamus is held to be the proper remedy. (26 Cyc. 341; 36 Cyc. 1402; State of Indiana v. Lake Erie & W. R. Co., 83 Fed. 284; Rutherford v. Hudson River Traction Co., 73 N. J. Law, 227, 63 Atl. 84.) It is argued, however, that although the duty to repair exists, still under the rule in this state and in view of the equities of the case the plaintiff should be relegated to its ordinary action. It was held in The State v. Bridge Company, 20 Kan. 404, that obligations arising upon contract merely, and involving no trust, can not be enforced by mandamus; but here, as we have seen, there is the plain public duty added to a contractual obligation. In The State v. Mo. Pac. Rly. Co., 33 Kan. 176, 5 Pac. 772, it was argued that mandamus will not lie to enforce an ordinance or to compel the performance of a duty not resulting from an office, trust or station, but it was said that a railroad company is a quasi-puhlic corporation, and its powers are conferred upon it not only for its own but for the public’s benefit, “and whenever it neglects or fails to perform any of its corporate duties, it may generally be compelled to perform the same by an action of mandamus.” (p. 185.) In The City of Potwin Place v. Topeka Rly. Co., 51 Kan. 609, 33 Pac. 309, it was expressly held that a street railway company may be required by mandamus to perform public duties in accordance with the provisions of a city ordinance under which it was constructed. “Whether the company’s duties be denominated contract obligations, or duties imposed by the terms on Which a franchise has been granted, the duties are essentially public, and such that no adequate rem edy in the ordinary course of legal proceedings is afforded the plaintiff and its citizens.” (p. 615.) This ruling was followed with approval in City of Topeka v. Water Co., 58 Kan. 349, 49 Pac. 79, holding that'a water company could by mandamus be compelled to extend its mains as required by its contract with the city. In The State v. Irrigation Co., 63 Kan. 394, 65 Pac. 681, in holding that an irrigation company could be compelled to construct bridges over highways which it had • obstructed, it was said: “We think that if the performance of a duty is enjoined by law, either by express statutory enactment or by the rules of the common law, its performance may be compelled by mandamus.” (p. 399.) To the same effect is Rea v. Telephone Co., 87 Kan. 665, 668, 669, 125 Pac. 27. While the equities of the case invoked by counsel are somewhat unusual, a careful consideration of all the facts and circumstances shown fails' to convince that the city, has estopped itself to pursue the remedy sought, and the foregoing authorities leave no room for doubt that the order made by the trial court is well within the rule applicable to mandamus. The judgment is therefore affirmed.	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The opinion of the court was delivered by Smith, J.: The plaintiff brought this action in the district court of Harvey county to recover a balance alleged to be due him for commissions as agent for the defendant in the sale of silos and cutters in the territory defined in a written contract, a copy of which was made a part of the petition and was admitted in the answer. It was also admitted that the plaintiff sold forty-two silos, the list price of which was $14,518. The defendant in its answer denied all the allegations of the petition, except that it admitted the residence of the plaintiff, his capacity as its agent, and that the contract was entered into between them. It was alleged that the written contract did not provide what per cent as commission was to be paid in case the plaintiff sold less than fifty silos, but that it was agreed and understood between plaintiff and defendant, at and before the execution of the contract, that in case less than fifty silos were sold the plaintiff was to receive 25 per cent commission, and no more; that plaintiff did not sell fifty silos and was entitled to receive only 25 per cent commission. The defendant admitted that it owed the plaintiff $735.69, and confessed judgment therefor. The reply was a general denial as to all matters inconsistent with the petition. A trial was had to a j ury, and after the introduction of the evidence of each party the court gave the jury a number of instructions, one of which, No. 2, presents the principal controversy in the case. It reads: “2. The jury are instructed that under the admitted contract between the plaintiff and defendant, which is set out in plaintiff’s petition, the defendant agreed to pay the plaintiff commissions on all sales of silos made at list price, 25 and 5 per cent on any number of silos sold by plaintiff if the number sold did not exceed 75, and it is further agreed that in case the plaintiff should sell any silos for defendant at less than list price' then the difference between the price for which said silo was sold and the list price should be deducted1 from plaintiff’s commissions. It is further agreed in said contract that the plaintiff will pay defendant 3 per cent additional on all cash settlements made by the plaintiff on or before August 1, 1912.” The written contract prescribed no percentage of commission for the sale of silos in a less number than fifty, but if fifty silos were sold it fairly implied there was to be some rate of commission to be paid on a less number of sales. The instruction that the percentage on sales of silos from one to seventy-five was 25 and 5 gives no force whatever to the words “on fifty.” These words, with the context, indicated a change in the rate of commission if fifty silos were sold. The appellant asked leave to introduce evidence that there was an agreement and understanding concurrent in time with the written contract that the commission on sales less than fifty in number was to be 25 per cent; on fifty to seventy-five, the commission was to be 25 per cent and 5 per cent; on seventy-five or more, 30 per cent. This evidence was erroneously excluded. The appellee’s evidence shows that he sold only forty-two silos, and appellant admitted that it was to pay 25 per cent for such sales. As to the freight charges there was a so-called written contract and a printed contract. They seem to contain conflicting provisions. The rule is, in such case, that if the written part is definite and certain in its provisions, it must govern. The court found, however, that the written part was ambiguous, and that the printed contract in this respect was definite and certain and should be followed as to this item. This conclusion is disapproved. The ambiguity should have been removed by parol evidence and the two provisions then considered together as in other cases. The judgment is reversed and the case is remanded.	[ -16, -4, 36, -51, -102, 96, 40, -102, 72, -29, 39, 87, -23, 14, 12, 115, -93, 57, 80, 104, -26, -77, 19, 115, -45, -77, -39, -63, -67, -55, -12, -44, 76, 36, 74, -107, -93, -62, -59, 88, -50, 1, -119, -20, -7, 2, 48, 59, 4, 75, 85, -114, -5, 44, 29, 75, 13, 46, -21, 59, -63, -15, -104, -115, 31, 3, 17, 102, -98, 71, 88, 46, -112, 53, -104, -56, 115, -74, -122, 116, 107, -119, 8, 38, 98, 2, -99, -51, 88, -72, 39, -65, -115, -90, 80, 88, 43, 64, -66, -99, 120, 18, -106, -10, -6, 5, 24, 104, 7, -81, -106, -94, 15, 114, -103, 11, -21, -122, 16, 97, -49, -78, 92, 103, 123, -109, -113, -102 ]
The opinion of the court was delivered by Benson, J.: This appeal is from a judgment on a promissory note which was made subject to deductions as provided in a contemporaneous agreement, and a memorandum upon the note. The principal facts are stated in the report of the first appeal in this case in Richolson v. Ferguson, 87 Kan. 411, 124 Pac. 360. The trial was to determine the amount of these deductions. The defendant produced in evidence an account, called the “Royston Suspense Account,” kept in the mill after the sale of the shares of stock, purporting to show payments of claims not appearing on the books but outstanding at the time of the sale. The defendant also produced an inventory of the resources and liabilities of the milling company, taken at the time of the sale, showing in the column of resources an item of $1427.39, interest, and offered to prove that Mrs. Royston, who had the general management of the business at the time of the sale, and who sold the stock, told the persons who. made the inventory that interest had been paid on certain notes; that upon that statement the interest was allowed; and that the statement was not true. The defendant also offered to prove that the plaintiff, a bookkeeper in the mill at the time of the sale, who was a creditor of Mr. Royston to the amount of $5000, had said that the sale of the stock was a good sale and if it had not been made his $5000 would have been lost. The defendant also offered to prove by one of the persons who made the inventory what, in his opinion, the actual value of the stock was. Another offer was to prove that a large per cent of the flour of an inferior grade had been put up in sacks bearing the brand of a superior grade. All these offers were rejected. Among the items of the Royston suspense account were “H. E. Brooks, $3111.65,” and “H. E. Brooks, $1141.30.” It was shown that these items represented claims of H. E. Brooks, a salesman of the milling company, for damages and loss of commissions upon failure of the company to fill orders which he had taken. In an action brought by Brooks against the company he recovered a judgment for only $300. The defendant offered the contract with Brooks and correspondence relating to these claims, which the court held to be immaterial because they had been merged in the judgment, conclusively fixing the amount of the liability. In considering the admissibility of the testimony, reference must be made to the agreement upon which the nóte in suit and other notes were made, which ■provided: “The notes due in six months to be subject to deduction of pro rata shares of any just claims or bills of any nature that may be held by any parties against said Mill Company and which for any cause do not appear •on the books of the Company at time of inventory.” This clearly states what deductions are to be allowed, ■and the court could allow no other. This disposes of the contention that evidence of the value of the stock .should have been admitted. It is true that it was said in the former opinion that the purpose of the guaranty given Ferguson was that he should get the stock at its value. This was said with respect to the question then considered, and related to the value as diminished by claims not appearing on the books of the company. 'That was the method the parties agreed upon to determine the value. It does not appear that the interest item was a claim held by any party against the com-, pany when the trade was made, not appearing upon the books, and therefore was not a deduction provided for in the agreement. The fact that the flour had been put up in misbranded sacks might have afforded a basis for claims against the company if sold according to the brand, and loss to customers had resulted from the deception. There was no offer to prove that any such claim had ever been made or contemplated. The mere fact that flour had been put in sacks indicating a superior quality fell short of proving any right to deduction under the agreement. The ruling upon the Brooks items was correct. The only loss of the milling company on that claim was the amount of the judgment, $300, which was paid by the company and allowed'by the j ury. The correspondence relating to the matter, if admitted, would have served no good purpose. The district court admitted in evidence the suspense account, and instructed the jury that if they found “that any of said items were claims made against said corporation and not shown on its books at the date of said inventory and that the new manager paid them after a full investigation, the burden of proof is then upon the plaintiff to show by the greater weight of the evidence that the claims so made and paid were not just.” The instruction is in harmony with the former opinion. The jury allowed deductions for several of the items in the account, and disallowed others, upon conflicting evidence. The questions of fact thus settled can not be reviewed here. Complaint is made that an excessive number of special questions were submitted to the jury. The large number of items for which credits were claimed afforded a reason for asking a corresponding number of questions. Thes^ were simple and methodical. It does not appear that any confusion or prejudice resulted, and no sufficient reason is discovered for interfering with the discretion of the district court in submitting them. The judgment is affirmed.	[ -80, 124, -8, -99, 26, 96, 42, -70, 98, 33, 39, 83, -23, -46, 17, 123, 118, 29, 116, 106, -10, -77, 23, -37, -26, -77, -103, -59, 57, 75, -25, 87, 76, 32, -54, -107, -26, -126, -63, 20, -114, 37, -87, -60, -7, 96, 48, 59, 36, 8, 113, -102, -5, 45, 30, 79, 105, 44, -21, 40, 80, -7, -86, -113, -113, 16, 18, 101, -100, 71, -40, 14, -112, 57, 3, -24, 112, -122, 6, 116, 43, 41, 8, 98, 99, 17, -75, -21, -104, -116, 39, 95, 29, -89, -16, 72, 3, 41, -97, -100, 124, 21, -121, 94, -2, -99, 25, 44, 7, -33, -76, -109, 11, 126, 30, 11, -17, -77, -112, 113, -57, -96, 92, 7, 30, -109, -122, -77 ]
The opinion of the court was delivered by West, J.: Plaintiff’s stock of j ewelry was damaged by fire, and after some negotiations with the defendant a written agreement was made to submit the amount of the loss to arbitration. Each party chose an appraiser and the two appraisers chose an umpire. The award in writing of any two was to determine the loss and be binding. An award was made in the sum of $863.35, signed by the umpire and the appraiser chosen by the company, and the plaintiff, not accepting this, sued to recover $2000 and attorney’s fees, and in reply to an answer setting up the awjard alleged that the company’s appraiser and the umpire acted arbitrarily, unjustly and unfairly, and that long before the appraisement was completed the plaintiff repudiated the same and refused to be bound by it, and that the award was unjust, unfair, wholly insufficient and much less than the damages actually sustained, and was procured by the defendant through fraud and collusion and undue means and influences. The cause was tried by the court, a general judgment rendered in favor of the plaintiff for the amount sued for, and the defendant appeals. There was considerable testimony indicating that the award was less than the damages sustained; that certain property lost or damaged, which was not mentioned in the original proofs of loss, was left out of consideration, the judgment of the court indicating that the award was less than fifty per cent of the loss sustained. There was also testimony tending to show unfairness and arbitrary conduct on the part of the company’s appraiser and the umpire, and the real question is whether, in view of this testimony and the general finding of the court, the judgment should be set aside as a matter of law. The defendant well argues that arbitration is a convenient, domestic method of settlement chosen by those interested and the courts will not interfere When one of the parties has sought to watch the work of the appraisers, accept if satisfactory and repudiate if not, nor when the only ground is that the award is less than a court or jury might deem proper, and this position is sustained by principle and by authority. But if the arbitrators refuse to consider a material portion of the property lost or damaged and intend arbitrarily to make an award so low that the insurer will not object, require the umpire to place his estimates between the limits fixed by the two appraisers, and return an award of less than one-half the loss, neither the insured nor the courts are bound by the result. There is testimony tending to show that this course was pursued in this instance, and while the showing is not as strong, as it might be still it was sufficient to convince the trial court whose decision can not be said to have lacked evidence to support it. The sum allowed on tools and machinery was in excess of the total insurance thereon, and hence the plaintiff was not harmed by such allowance. It is suggested that as the agreement provided that the appraisers should submit to the umpire their “differences” it was entirely proper for him to confine his estimates within the limits fixed by them. We think, however, that “differences” as here used means matters about which they were unable to agree, and that when he was called upon to fix a sum he acted as a juror and was to exercise his own untrammeled judgment. In Luther v. Medbury, 18 R. I. 141, 49 Am. St. Rep. 753, instead of choosing a third the two arbitrators added their estimates and divided by two, and this was held to avoid the award, the court saying that the parties to a submission are entitled to the judgment of the arbitrators. The situation presented is somewhat similar to that in Ross v. Insurance Co., 86 Kan. 145, 119 Pac. 366, except that there the insured whose appraiser had withdrawn made no objection to the appraisal going on and did not declare her intention to ignore it, but appeared before the other two and tried to secure better allowances than they were making. That awards may- be set aside for reasons similar to those advanced here has been decided in Russell v. Seery, 52 Kan. 736, 35 Pac. 812 (statutory award) ; indicated in Insurance Co. v. Payne, 57 Kan. 291, 46 Pac. 315, and held in the Ross case already cited, a rehearing being denied (86 Kan. 352, 119 Pac. 1126.) The plaintiff testified that after discovering the methods pursued he accused the umpire and the company’s appraiser of bad faith and notified them that he would not be bound by the award.. While there was other evidence indicating that he was over-officious and greedy and finally refused to accept the result merely because dissatisfied with the sum awarded, this was all for the court to weigh and determine and it is not our province to change the result. The judgment is affirmed.	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The opinion of the court was delivered by Smith, J.: The following are the facts, so far as not controverted, of this case: The action is ejectment for the recovery of about four hundred acres of land lying in Cowley and Elk counties owned by one Hardin McLean at the time of his death, in 1910. The appellees, plaintiffs, are an alleged bastard son of Hardin McLean, and those to whom this alleged son has conveyed undivided interests by deed since the death of the intestate; and the appellants, defendants, are those collateral relatives of McLean to whom the land would descend under our statute of descents (Gen. Stat. 1909, §§ 2935-2967) if the alleged bastard son is not qualified to inherit. The only issue in the case is that of the qualification of the alleged illegitimate to inherit by reason of recognition of him as a son by the putative father otherwise than in writing. The petition, after stating the names and addresses of the plaintiffs, is the usual petition in ejectment. ' The case was tried to a jury, and a general verdict returned for the appellees, plaintiffs, and judgment followed in accordance with the verdict in their favor. The appellee, Walter W. McLean, was bom in Kentucky in 1877, and remained in that state for about eighteen months thereafter, as did also his mother and the decedent, his putative father. When the boy was Uflbut eighteen months old he was removed with his mother and her family to Tennessee, where they remained six or eight years, and then removed to Arkansas, where they resided until the mother’s death and where the son resided until after the death of decedent. Shortly after the removal of that family to Tennessee the decedent moved to Kansas, where he remained about ten years; he then returned to Kentucky for about ten years, when he came to Kansas and resided, here until about two years before his death, when he removed to Oklahoma, where he remained until a short time before his death, which occurred at Winfield, Kan. Walter W. McLean never heard of or from decedent until after the latter’s death, in December, 1910. The appellants, for the first defense to the petition, admitted the death of Hardin McLean in December, 1910, and alleged that at the time of his death he was a resident in good faith of the county of Osage, in the state of - Oklahoma, and further that at his death they were his sole heirs at law; that they inherited, as such heirs, all his property, and were the owners and in possession of the real property in controversy, and further denied all the allegations of the petition. In the second defense they alleged that the decedent was never married, and admitted his residence in Kentucky and removal to Kansas, as alleged in the petition. They further alleged that at the death of Hardin McLean one E. R. McLean, a resident of Osage county, Oklahoma, was by the county court of Osage county, Oklahoma, which court had sole jurisdiction in the premises, duly appointed administrator of the decedent’s estate; that he at once duly qualified as such administrator and took possession of all property belonging to the estate found in Oklahoma. They also pleaded the laws of Oklahoma; in force in that state, by which it is provided that “Every illegitimate child is an heir of the person who in writing, signed in the presence of a competent witness, acknowledges him-' self to be’the father of such child.” (Compiled Laws of Okla. 1909, § 8987.) They further pleaded the laws of the state of Kentucky, in force in 1877 and ever since, on the question of the inheritance of illegitimate children from the father. In the third defense they allege that the plaintiff, Walter W. McLean (whom they designate as Williford), is not the bastard child of the decedent, and that his coplaintiffs obtained whatever interest they now claim in the real estate in controversy by reason of advancements made to him by them in their joint efforts to perpetrate a fraud upon these defendants, and that all took their respective interests therein with full knowledge of such fraudulent claim. And further, they allege that they are the owners of the legal and equitable title and in possession of the land described in plaintiff’s petition, and that plaintiffs have no interest therein. The case was tried to a jury in the district court of Cowley county in December, 1912, verdict and judgment were for appellees, and a motion for new trial was overruled. The appellants made numerous assignments of error, but in the argument in their brief they say that the case should be reversed upon the ground that the evidence fails to show such a general and notorious recognition as our statute requires to enable an illegitimate to inherit from the father. This is the principal question remaining in the case. The rights of the parties depend, first, on whether the laws of Kansas or of Kentucky or Oklahoma are to be applied. It is believed to be a universal rule that the descent of real property is governed by the law of the state or nation within which it is situated. (14 Cyc. 21.) In accordance with the general rule, we hold that the law of Kansas determines the descent of the property in dispute and that it is entirely immaterial what the law of Kentucky or Oklahoma may be. Sections 2955 and 2956 of the General Statutes of 1909, relatirig to inheritance by illegitimate children, read: “Illegitimate children inherit from the mother, and ■ the mother from the children. “They shall also inherit from the father whenever they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing.” It only remains to be determined whether the plaintiff, Walter W. McLean, was the illegitimate son of the decedent, Hardin McLean, and whether Hardin McLean had recognized such relationship in such manner as to be called a general and notorious acknowledgment thereof. These are questions of fact for the determination of the jury under proper instructions as to what constitutes a general and notorious recognition of the relation of father and son on the part of the father. There is no claim of any recognition thereof in writing. The law of the state of Iowa is essentially like our statute cited. Section 2466 of the Iowa Code of 1873 provides that illegitimate children “shall inherit from the father whenever the paternity is proven during the life of the father, or they have been recognized by him as his children, but such recognition must have been general and notorious or else in writing.” Van Horn v. Van Horn, 107 Iowa, 247, 77 N. W. 846, and other cases are referred to by appellants to show that the evidence of recognition by decedent of the appellee as his son was not sufficient to make it general and notorious. The' circumstances of each case are, of course, different, and the gist of the decisions is that the extent of recognition necessary to meet the statutory requirements depends in some measure upon the circumstances of each case. Where frequent opportunities for such recognition are presented for a long period more is required than where such opportunities are less in number or in a more limited time. The first assignment of error urged by the appellants is that counsel were permitted to say to the jury in the opening statement that the deceased had been prosecuted for bastardy by the mother of the child and adjudged to provide for its support, and that he did not testify on the trial. The opening statement at the beginning of a trial is designed to give the court and jury a general idea of the case and what the party expects to prove. However much the party may -fall short of what he says h.e expects to prove can not be determined by the court at the time, and only good faith should be required on the part of the attorney. No evidence of prosecution for bastardy was formally produced by a production of a record thereof, but witnesses on the part of appellees and appellants referred to incidents as about the time of the bastardy proceeding, and there was evidence of the decedent paying money to the mother and of his complaining of the drain upon his resources .in supporting the mother or child. There was sufficient to show that appellees had some ground for the statement. We think the court did not err in not withdrawing it from the jury. Much of the appellant’s brief is taken up in discussing the evidence of the numerous witnesses, and apparently balancing the evidence of witnesses who testified to acts and declarations of the decedent which admitted or recognized his parentage of Walter W. McLean with the statements of other acquaintances who had heard nothing in that respect, especially the evidence of close acquaintances after the decedent came to Kansas. The preponderance of the evidence and what it proves, if conflicting, are for the jury and the trial court. It is only for us to determine whether there was sufficient evidence to sustain their verdict and to justify the approval thereof by the court. It is claimed by the appellees, and we believe correctly, that there were fifteen witnesses who testified to acts and declarations of the decedent indicating his paternity of the child, while the appellants claim that seven witnesses, intimate friends of the decedent, never heard him mention the child in any way, nor did they know of any rumor or understanding in the neighborhood that the decedent had made such recognition. The latter evidence tends in no way to disprove the former unless each refers to the same time, which does not appear. It is especially urged that the court erred in permitting several witnesses to testify that there was a general rumor and understanding in the Kentucky neighborhood among the neighbors and friends of the decedent that he was the father of the child; also in permitting the witnesses for the defense to be asked, over appellants’ objection, if such rumor and understanding did not exist in the neighborhood. It is urged that this is hearsay, but the fact, if it is a fact, that a rumor of this character prevailed in the neighborhood at about the time the birth occurred is some evidence that the decedent knew thereof. As said in the Iowa cases cited, the existence of such a rumor is a matter for consideration by the jury, and espécially if it is a general rumor and understanding it is natural that the person, if falsely implicated therein, would take some pains to deny it or disprove it. Instead of denying the rumor the evidence shows that at the time the mother and child were about to be removed from the neighborhood in Kentucky to Tennessee the decedent went to the gateway to the house where they were and asserted that the child was as much his as hers, referring to the mother, and was about to force his way into the house to see the child or to prevent its being taken away; that he went there armed with a gun, and manifested an intention to carry out his purpose by force if necessary, but was dissuaded and induced to go away by a statement that a relative of the mother was in the house with a gun and there would be trouble if he persisted in going into the house. At this time, the evidence shows, there was quite a large gathering of people, neighbors and friends of the mother. It is said that the decedent talked with but two or three persons, but there is no evidence as to how many persons may have heard what he said, and naturally the people there would be informed of what he said and what transpired. He apparently made no effort at concealment of his purpose. This with the other evidence, we think, is sufficient to justify the finding of the jury that there was on his part a general and notorious recognition that the child was his own. The trial took place over thirty years after this event, and the lapse of time might be considered in excusing either party from producing all of the evidence which may have at one time existed. There is some criticism in appellant’s brief of the instructions given by the court to the jury. The appellants requested the court to give a number of instructions to the jury, which request was refused, but the substance of most of them was embodied in the instructions given. We have examined all these objections and requests and think the jury were fully and fairly instructed by the court, and find no material error therein nor in any of the trial errors assigned. The judgment is affirmed.	[ -12, 108, -76, 28, 26, -32, 106, 26, 83, -29, -92, 115, -55, 10, 4, 99, -30, 13, 81, 105, -31, -109, 23, -15, 82, -13, -7, -43, -77, 73, -18, -41, 72, 32, 74, -43, -26, 108, -59, -44, -114, 4, 41, 77, 88, 0, 62, 107, 2, 75, 21, 15, -13, 42, 29, -63, 41, 47, -37, -70, 80, -8, -114, -121, -33, 14, 49, -125, -78, -63, 72, 58, -104, 49, 0, -20, 87, -90, -106, -12, 95, -55, 44, 118, 103, 17, 93, -17, 120, -104, 46, 63, -99, -26, -110, 88, 67, -23, -66, -103, 123, 80, 15, 126, -21, -115, 16, 104, -92, -113, -42, -95, 13, 56, -120, 3, -13, -93, 32, 113, -49, -94, 92, 71, 113, -71, -122, -6 ]
The opinion of the court was delivered by Burch, J.: The plaintiff sued the defendant for damages for personal injuries sustained as a result of the plaintiff’s horses taking fright at the defendant’s automobile. A demurrer was sustained to the petition and the plaintiff appeals. The charging part of the petition reads as follows: “On or about the 18th day of February, 1912, this plaintiff was driving his said team attached to said buggy by said harness from what is known as ‘The Casaday Corner,’ in Bolton township, Cowley county, Kansas, towards Geuda Springs, Kansas, on the road to this plaintiff’s home, and that the defendant approached this plaintiff from the north, in an automobile driven by the said defendant, and said automobile was propelled by a gas or gasoline engine motor which gave forth as the machine ran a loud, throbbing, chugging and singular noise; that as this plaintiff and the de fendant continued to approach each other, this plaintiffs horses became restive and exhibited signs of extreme fright, which the defendant observed, and without shutting off his engine or stopping, continued to approach this plaintiff with his machine and the sounds heretofore mentioned; that this plaintiff pulled his team of horses to the right-hand side of the road, brought his. team to a halt, and as the defendant approached more closely the said horses still continued to show signs of extreme fright, which the defendant observed, and the defendant also observed that it was necessary for this plaintiff to use both hands to control his team and that there were two other persons in said buggy besides this plaintiff; that instead of the defendant stopping his machine and shutting off his engine, he continued to approach this plaintiff and the other parties in said buggy, notwithstanding the fact that the defendant saw that this plaintiff was exerting every method and power to control said horses and that there were three persons in said buggy and that said horses were badly frightened, and instead of meeting and passing this plaintiff and lessening the fright of the said horses, the said defendant, carelessly and negligently stopped his automobile almost opposite to the place where this plaintiff held his team, and carelessly and negligently did not shut off the engine, but allowed said engine to continue in motion; that the automobile was a large machine and its sudden stoppage and leaving said engine in motion and the said engine making a throbbing, explosive, whirring, grinding and nerve-racking noise after the said large car had been stopped by the carelessness and negligence' of the said defendant, caused the said team to take sudden fright and to become panic-stricken and to make a sudden lunge and a short turn to the right, doubling up and breaking the pole of the said buggy and overturning said buggy, in which this plaintiff and the others were riding, and thus throwing the other persons and this plaintiff out of the said buggy, throwing this plaintiff upon and against a barbed wire fence.” The statute relating to the operation of automobiles on public highways which was in force at the time the plaintiff was injured reads as follows: “Every person having control or charge of a motor vehicle or automobile shall, whenever upon any public street or highway and approaching any vehicle drawn by a horse or horses, or any horse upon which any person is riding or driving domestic animals, operate, manage or control such motor vehicle or automobile in such manner as to exercise every reasonable precaution to prevent the frightening of any such horse or horses or domestic animals and to insure the safety and protection of any person riding or driving the same; and if such horse or horses or domestic animals appear restive and frightened, the person in control of such motor vehicle shall reduce the speed thereof, and if practicable turn to the right and give the road, and, if requested by signal or otherwise by the driver of such horse or horses or domestic animals, shall proceed no farther towards such animal or animals, but remain stationary so long as may be necessary to allow such horses or domestic animals to pass. This provision shall apply to automobiles or motor vehicles going either in the same or in the opposite direction.” (Gen. Stat. 1909, § 452.) In support of the court’s ruling on the demurrer it is said that a petition charging negligence as a cause of action must state facts upon which a specific duty arises as a matter of law and not as a mere matter of opinion on the part of a jury. In a general sense this is true. The standard of duty which the law adopts, however, is what a reasonably prudent man would have done under the same circumstances. This standard may be indefinite, illogical, and fictional, but it is the best the law affords. The legislature was unable to provide a better one, as the statute quoted demonstrates. The legislature was able to say that an automobile driver must stop on meeting a restive team if signalled to do so, but it could not undertake to solve the entire situation by specific directions given in advance. It was obliged to fall back on the standard of reasonable precaution. If reasonable precaution to prevent the frightening of a horse and to insure the safety of its driver should require the automobile driver to stop without a signal, he would be negligent if he failed to do so and injury resulted. The statute does not forbid an automobile driver to stop without a signal, but if reasonable precaution should require him to proceed, he should do so. The statute does not require an automobile driver to stop his motor after the car had been stopped, on signal or- otherwise, but if reasonable precaution should require it he must do so or be at fault. (See Mahoney v. Maxfield, 102 Minn. 377, 12 Ann. Cas. 289, and Note, p. 292; Messer v. Bruening, 25 N. Dak. 599, 142 N. W. 158, 48 L. R. A., n. s., 945, and Note, p. 946.) Applying the. standard of reasonable precaution to the facts stated in a petition attempting to charge negligence, a court may be able to declare as a matter of law that a cause, of action has been stated, or has not been stated. The facts may be, however, of a more dubious character. They may be such that a reasonable person well qualified to speak would be satisfied that negligence appeared, while another equally competent person would draw a different inference. In such a case a cause of action is stated, but the ultimate pronouncement upon liability must be made by a jury. The result is that a cause of action is stated by a petition charging negligence if the court is able to say that a reasonable mind might fairly infer negligence from the facts alleged. It is clear that no injury resulted from the failure of the defendant to stop when he first observed that the plaintiff’s horses were frightened and that the plaintiff’s hands were so engaged in holding the horses that he could not signal. What would have occurred if the defendant had then stopped is wholly conjectural, and the first part of the story told by the petition must be regarded as explanatory of what followed. Although the automobile continued to approach, the plaintiff was able to control his frightened horses to the extent that he gave the road to the automobile and stopped them. This fact fairly indicated to the defendant that if he went ahead he ought to pass by the team. A j ury might well conclude that he was not warranted in bringing the terrifying agent practically alongside the restive horses and then stopping it there and leaving the engine in the production of the noises described in the petition. It would be entirely reasonable to say that if he stopped he should have stopped the engine, and that he might have anticipated that after he stopped abreast of the horses and did not stop the engine they would become panic-stricken and lunge sidewise away from the car. The conclusion is that the petition stated a cause of action which should have been submitted to a jury under proper instructions from the court. The judgment of the district court is reversed and the cause is remanded with direction to overrule the demurrer.	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The opinion of the court was delivered by Mason, J.: S. J. Gilmore brought action against The Royal Salt Company, alleging that the water underlying his land was contaminated by reason of a dump, of refuse salt which it had suffered to accumulate upon its property, and asking relief by injunction. Upon a first trial the district court held that the injury complained of was not actionable and on that ground denied the plaintiff relief. Upon appeal the acts complained of were held to be unlawful, but the question whether an injunction should be granted was committed to the determination of the trial court, “upon the equities of. the case, in view of the practical consequences of the wrong and the means available for its correction.” (Gilmore v. Salt Co., 84 Kan. 729, syl. ¶ 3, 115 Pac. 541.) Upon a new trial the plaintiff was awarded an injunction, but appeals from the judgment finally rendered, on the ground that the relief granted is inadequate — that it does not afford a sufficient measure of protection. The trial court on April 29, 1912, made detailed findings of fact and two conclusions of law — the latter being to the effect that the maintaining of the salt dump was an invasion of the plaintiff’s rights, and that the plaintiff was entitled to an injunction. At the same time the judge entered upon the trial docket a memorandum reading: “Judgment for plaintiff enjoining defendant from maintaining nuisance described in plaintiff’s petition. . . . Order of the court that the nuisance be abated within six months from this day.” The plaintiff thereafter prepared a form for a journal entry, reciting among other things that the defendant was enjoined from maintaining the salt dump on the ground, and that an abatement of the nuisance was ordered, so that there should not be, after six months, any of the salt from the defendant’s mines resting on the ground. This form the court refused to approve. On June 26, 1912, the court approved a form of journal entry reciting that the defendant was enjoined from maintaining the salt dump without a covering, and was required within six months to abate the nuisance, so that after six months there should be no salt dump exposed to the weather, or in- such condition that any salt or brine therefrom cojuld sink into the ground and pollute the underflow. The plaintiff then filed a motion asking that this form.should not be followed in the entry of the final judgment. The motion was denied. The plaintiff having died, the proceeding is prosecuted by his sole heir, Elizabeth Gilmore Dickinson. The judgment as recorded is complained of as not conforming to that actually rendered and announced at the time the findings were filed, and as not affording proper protection to the plaintiff. The entry made upon the trial docket by the judge was a mere memorandum, not a formal record. (Pennock v. Monroe, 5 Kan. 578.) It served to indicate the general scope of the decision, but did not preclude a subsequent amplification and formulation of details. The statement of the judge as to what was actually decided is necessarily conclusive. The vital controversy is as to the adequacy of the relief granted. The view of the trial court was that the uncovered salt dump constituted a nuisance because the rain would dissolve the salt and cause it to sink into the 'ground.; that this condition could be remedied by providing a cover, so as substantially to shield the salt from the weather; and that the dump would not then be a nuisance. It appears that a cover has been provided, in accordance with the order of the court. The plaintiff contends that even with this cover the dump continues to be a nuisance, because the salt will still be dissolved, permeate the soil, and pollute the water. We think this was a fair matter for the determination of the trial court, which must be regarded as having decided that the covering of the salt would prevent it from being dissolved in such quantities as to work a substantial injury to the owner of the adjoining land. None of the findings is in itself in conflict with this conclusion, but the plaintiff contends that the established facts, considered in connection with the known truths of natural science, necessarily disprove it. We can not accept this view, but regard the entire question as one of fact, upon which the decision of the trial court is final. It is urged that no issue was framed as to the manner in which the nuisance complained of could be abated, and that no testimony was taken thereon. The petition alleged that the salt dump was not protected.by any cover, and that the action of the rain and snow caused the formation of brine, which sank into the ground. The trial court in deciding that the salt dump, as it previously existed, was a nuisance obviously took account of the conditions that in the judgment of the court made it a nuisance — the lack of any protection against the weather; and having determined that it was a nuisance only by reason of these conditions, held that their removal would change its character in that regard. The judgment is affirmed.	[ -16, 120, -100, -116, 42, 96, 58, -8, 73, -111, -27, 87, -51, 67, 12, 35, -109, 57, 116, 123, -42, -90, 11, -64, 2, -13, 82, -51, -15, 124, 124, -34, 12, 48, 74, -107, -26, 89, 81, -34, 70, -123, 56, -27, -7, 0, 60, 123, 86, 79, 65, 60, -13, 46, 24, 67, 9, 44, -53, 61, -8, -16, -66, 5, 109, 20, 51, 86, -66, -57, -54, 46, -104, 29, 0, -24, 115, -74, -122, -12, 35, -69, 40, -10, 98, 33, 37, 99, -24, -72, 46, -2, 15, -90, -79, 106, 43, 72, -66, -99, 62, 20, -89, -6, -18, -123, 94, 44, 3, -53, -106, -31, 3, -72, -105, 5, -21, -93, 52, 116, -52, -88, 92, 67, 81, -101, 15, -33 ]
The opinion of the court was delivered by West, J.: It is insisted that the measure of damages is the difference between the value.of the land and $1600, the sum at which it was to be taken off the plaintiff’s hands, instead of the difference between the value of the land and the value of the car — on the theory that the plaintiff is entitled to the benefit of his bargain. Had the land been as represented its value might have been much more than the price fixed for the car, but the plaintiff can at most claim nothing beyond the difference between such price and the value of the land, and hence, as said in the former opinion, the rule in Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496, that the measure is the difference between the actual and the represented value of the land is not so directly applicable as to be controlling. But upon full consideration the court is not disposed to depart from the rule often announced and recently reaffirmed, that the plaintiff is entitled to the benefit of his bargain. (Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496; George v. Lane, 80 Kan. 94, 102 Pac. 55; McDanel v. Whalen, 91 Kan. 488, 138 Pac. 590; Epp v. Hinton, 91 Kan. 513, 516, 138 Pac. 576; Page v. Pierce, ante, p. 149, 139 Pac. 1173.) Hence, in this case, after accounting for whatever else of value he received in the transaction, the measure of the plaintiff’s damages is the difference between the value of the land and the sum for which it was to be taken off his hands, which was also the price of the car, $1600. The third paragraph of the syllabus is modified accordingly.	[ -14, -6, -36, 46, 27, 96, 42, -102, 65, -28, -74, 19, -83, -61, 21, 49, -9, 89, -16, 104, 87, -93, 23, -125, -110, -77, -5, 77, -67, 72, 110, 86, 76, 48, -62, -99, 102, -62, 69, 84, -50, 6, 43, 77, -55, 64, 52, 75, 64, 11, 113, -113, 35, 46, 24, -59, 109, 40, 27, -79, -47, -8, -118, -113, 127, 4, 17, 36, -68, 39, 88, 72, -104, 57, 0, -24, 115, -90, -106, -12, 109, -101, 9, -90, 103, 48, 8, 111, -8, -104, 46, -40, 15, -90, 22, 88, 3, 65, -105, -98, 100, 16, 76, 126, -6, 29, 93, 105, 23, -53, -106, -125, -81, 96, -118, 91, -49, -93, 48, 113, -55, -30, 92, 69, 94, -109, -97, -36 ]
The opinion of the court was delivered by Benson, J.: This is an action to recover possession of an undivided one-half of a quarter section of land in Haskell county and for partition. The defendant asserts that he is the owner of the land in fee simple, and denies that the plaintiff has any interest in it. Both parties allege that Angenette A. Hunt and Ysidora B. Payne became the owners of the land on July 27,1893, subject only to a tax deed issued June 12, 1902, to Orthy Connet for the delinquent taxes of the years 1893 to 1901, inclusive, recorded June 13, 1902, and a tax deed of an earlier date, referred to as the Eyman deed, issued to C. C. Rush. Miss Hunt died in New York in December, 1891, while a resident of that state, leaving a will, under which her interest in this land became vested in three trustees. In January, 1903, Orthy Connet commenced an action in the district court of Haskell county against Angenette A. Hunt and Ysidora B. Payne, E. O. Eyman and others to quiet his title to the land in controversy. Service was made by publication and judgment was rendered on March 9, 1903, by default, quieting title as prayed for. Afterwards Connet, by warranty deed, conveyed the land to Elbert H. Rice, who, by warranty deed, conveyed it to John S. Wallace, and John S. Wallace, on September 13, 1905, conveyed it to the defendant, Winderlin, who, relying upon the judgment quieting title, paid $600 for the conveyance, which was made by warranty deed. It is conceded that in this situation Winderlin owns oné-half the land in fee simple. The title to the other half only is in dispute. In February, Í906, Ysidora B. Payne applied to the district court under the statute for leave to come in and defend the action of Orthy Connet. On the same day the trustees under the will of Miss Hunt filed their application in the same cause, setting forth the fact that the testator was dead at the time that action was commenced, asking for an order setting aside the judgment that had been rendered against her and for permission to come in and defend. Both applications were sustained, and on May 14, 1907, all the parties appearing, the cause was tried and judgment was rendered declaring that Ysidora B. Payne owned one-half of the land and the trustees under the will of Angenette A. Hunt owned the other half in fee simple, setting aside the Connet tax deed, and also the Eyman tax deed, but adjudging a lien of $275 in favor of the holder, who appeared in the action. In the year 1906 the trustees filed an exemplified copy of the will of Angenette A. Hunt in the probate court of Haskell county, which was admitted to record in that court. On June 17, 1907, the trustees conveyed the land to Fred L. Morris, who afterwards commenced this action. No bond was ever filed, as provided by section 9843 of the General Statutes of 1909, which provides that trustees named in a foreign will may execute the trust upon giving bond to the state, with sureties approved by the court in which the will is recorded. The defendant invokes the protection afforded to an innocent purchaser who has relied upon a judgment afterwards set aside. (Civ. Code, § 83, former Civ. Code, § 77.) This claim would readily be conceded if Miss Hunt had been living when the Connet action was commenced, but being dead, the judgment against her was void. It is contended, however, that although void when rendered, yet when the application was made to open it and to be let in to defend, the question of jurisdiction was waived. (Aherne v. Investment Co., 82 Kan. 435, 108 Pac. 842.) This was not a question of jurisdiction arising in proceedings against a living person which are fatally defective. ' There was no action against Angenette A. Hunt. She was not in being. The fact that she was dead was stated in the application to open the judgment. A void judgment may be vacated at any time on the motion of a party interested. (Civ. Code, § 598.) The form of the application is not important, and the fact that the trustees .chose to come in and try their title in connection with that of their cotenant, Miss Payne, was a matter of convenience. They did not by asking to have a void judgment vacated make it effectual before it was set aside, or for any purpose. As Miss Hunt was dead when the Connet suit was commenced, the effect of that suit was the same as though her name had not appeared in it. On the retrial of that action the Connet tax deed was set aside, but that judgment did not affect Mr. Winderlin’s title to one-half the property owned by Miss Payne, for as to that interest he is protected as an innocent purchaser, but he is not protected against the interest of the trustees holding the other half under the will of Miss Hunt, for as to her and the trustees the first judgment was void. The fact that Connet’s grantee is protected as an innocent purchaser in the enjoyment of one-half the land owned by Miss Payne, against whom the court had jurisdiction to render the first judgment, did not preclude her on the second trial from obtaining a valid judgment setting the Connet tax deed aside. This judgment setting aside the tax deed inures to the benefit of her cotenant, the trustees. “A tenant in common owning a moiety of the fee may in an action of ejectment recover the entire possession of a tract of land from one who holds the same only by virtue of a voidable tax deed, on payment of the lien for taxes.” (Horner v. Ellis, 75 Kan. 675, syl. ¶ 3, 90 Pac. 275.) There is a suggestion in the defendant’s brief of a possible reliance upon the old Eyman tax title, but that was set aside on the trial of the Connet case and a judgment given for the taxes it represented. It is said in the argument for the defendant that if he “had been made a party to the cross-petition filed by defendants in the former case and served with summons, and thereafter judgment had been rendered on said cross-petitions in the form that it was rendered, Mr. Winderlin could not in this case claim any title.” This action, however, reaches the same end. Winderlin could make any defense in this action that he could have made had he been brought into the former action, and no more. Had he been impleaded in that action as suggested, he could have claimed the protection of an innocent purchaser of all the interest in the land that the court had jurisdiction to adjudicate upon at the time the first judgment in the former action was rendered. He has the same right here. It is also argued that if the defendant is not given the protection of the judgment in the former case as to the entire title, then he is not bound by any part of the judgment, and his title stands as though it had not been rendered; that is, that his tax title remains in force. In this argument greater effect is given to the statute protecting the innocent purchaser than is warranted. That statute does not affect the rights or remedies of the parties, or the right to proceed to a new trial with all its incidents and results, excepting only that the title of an innocent purchaser who relied upon the judgment can not be disturbed. The court had the same power to adjudicate upon the tax title after the conveyance as before. Only the title of the innocent pur chaser is unaffected. The real owner recovers judgment for his land precisely the same as though it had not been conveyed. While he can not enforce the judgment by wresting possession from the purchaser, he ■may recover its value from the party through whose action it was taken from him. (Flint v. Dulany, 37 Kan. 332, 15 Pac. 208.) Both parties rely upon the opinion in Howard, Adm’r, v. Entreken, Adm’r, 24 Kan. 428. The distinguishing feature of this case is that the original judgment in the former action was rendered against a dead person, and was therefore void. It was as though it had not been rendered. Other authorities are cited, but are not controlling in the situation here presented. It is contended by the defendant that the conveyance by the trustees is void because no bond was given, as required by the statute. While the execution of the deed without a bond is irregular, it is not void, and the defendant who has no title to the one-half interest conveyed is not concerned to protect the estate in the custody of the trustees. (Watts v. Cook, 24 Kan. 278.) It is argued that the trustees’ deed is void because of the lack of power to make a sale under the will. The will devises the property to the trustees, to be placed in a fund, and provides that the income derived therefrom shall be used in the support of a charitable trust created by the will. In order to place this land in the fund, and apply the income as directed, it was necessary to sell it. Hence the power existed. (Robinson v. Robinson, 105 Maine, 68, 72 Atl. 883, 134 Am. St. Rep. 537.) The judgment is reversed and the cause remanded with instructions to render judgment as prayed, for.	[ -12, 126, -8, -65, -118, 96, 42, 26, 67, -15, -92, 87, 43, -46, 5, 57, -21, 57, 85, 107, -25, -9, 22, 38, -112, -13, -109, -51, -77, 93, -26, -43, 72, 32, 74, -107, 70, -30, 73, 80, -114, 9, -87, 108, -37, 74, 52, 47, 82, 75, 81, -118, -13, 41, 53, 107, 105, 44, -53, 41, 0, -72, -85, -114, -1, 11, -112, 39, -72, -61, -88, 10, -112, 49, -128, -8, 123, -90, -106, 116, 5, -103, 44, 98, 98, 17, 5, -17, -24, -104, 14, 127, -115, -89, -90, 72, -29, 72, -108, -99, 85, 80, 7, 118, -18, -123, 25, 108, 1, -113, -42, -95, -97, -72, -104, 3, -37, 35, 48, 113, -53, 34, 76, 70, 48, 19, -114, 56 ]
The opinion of the court was delivered by West, J.: The plaintiff, while working for The Childress Mining Company, was injured. He sued for damages and recovered a judgment on which execution was issued and returned unsatisfied. This action was brought against the incorporators of the company to hold them individually liable. After the issues were made up an agreed statement of facts was filed, and treating this as the evidence in the case a demurrer thereto was sustained and judgment rendered in favor of the defendants, and the plaintiff appeals. It appears from this agreed statement that in December, 1908, the defendants executed articles of incorporation of the Childress Mining Company, pursuant to the laws of Arizona, and filed the charter locally in that territory and in the auditor’s office. This charter provided that the principal place of business should be Phoenix, and the principal office outside of Arizona should be Galena, Kan., and that such other offices, either within or without the territory of Arizona, might be had as the board of directors should establish. The general business to be transacted was mining, including matters connected therewith. The capital stock consisted of 200 shares of one hundred dollars each. In February, 1909, the incorporators, after due notice, held a meeting at Galena, at which they were all present and elected a board of directors, one being chosen president and another secretary and treasurer, and a full set of by-laws was adopted. A resident agent for the corporation at Phoenix, Ariz., was appointed. Soon after this the corporation began to operate a lead and zinc mining plant in Cherokee county, at which place the plaintiff was employed, and continued to operate such plant and transact business until the company was adjudged a bankrupt, during all of which time the directors were all residents of Kansas and of Bourbon and Cherokee counties. All its business was carried on in Kansas and no property was owned by the company in Arizona. The company was duly incorporated under the laws of Arizona and complied with all of the laws of that territory. It was admitted that “The stock was issued and that the incorporators of said company paid for the stock executed to them the full face value thereof, and that the only grounds upon which it is sought to hold defendants in this action liable for the judgment sued upon herein, is that The Childress Mining Company and its incorporators failed to make application to the State Charter Board of Kansas for authority to engage in business in this state as a foreign corporation and failed to make any annual reports of their business to the secretary of state or the State Charter Board, but did business in this state in disregard of all the laws of Kansas relative to foreign corporations.” Also that when plaintiff sued to obtain judgment against the company he did not know of the failure to comply with the laws of Kansas and did not learn thereof until the present action was brought, and that two of the defendants did not know of the failure until after the present action was begun. The appeal presents the question whether, the company having been organized in accordance with the laws of Arizona, the stock being taken and paid for, the officers having been elected and by-laws adopted and business transacted for a considerable time, the mere failure to comply with the Kansas corporation statute renders the defendants personally liable to the plaintiff for the amount of his judgment. Most of the decisions cited by the plaintiff were controlled by statutes expressly providing for the result of such corporate failures and omissions. In Rowden v. Daniell, 151 Mo. App. 15, 132 S. W. 23, a former decision of the supreme court was followed, holding that under the Missouri statutes a foreign corporation has no legal existence in that state until it has complied with the requirements, and it was also held that individuals who attempt to organize a corporation in Missouri 'are held personally liable until the charter has been secured and the required fees paid into the-state treasury. In Bigelow v. Gregory et al., 73 Ill. 197, it was held that persons adopting articles of agreement to become a body corporate do not, without complying; with the other provisions of the law, become a corporation and escape personal liability. To a similar effect is Guckert v. Hacke et al., Appellants, 159 Pa. St. 303, 28 Atl. 249, and N. Y., Etc., Bank v. Crowell et al, Appellants, 177 Pa. St. 313, 35 Atl. 613. Cleaton v. Emery, 49 Mo. App. 345, is also cited. There a charter to conduct an exposition at St. Joseph was obtained from the state of Colorado with a capital of $1,000,000, only $43,000 stock being subscribed. The laws of Missouri require that before such a charter be issued all the stock must be subscribed in good faith, one-half thereof being fully paid up. The whole business of this corporation was to be conducted at St. Joseph, though provision was made for branch offices at Denver and other places. The enterprise proved disastrous, and the incorporators were held liable as partners on the ground that the incorporation was a fraud on the laws of Colorado and Missouri. It was also held that, being against the letter as well as the spirit of the Missouri statute and a fraud in fact, the plaintiff who had contracted believing it to be a corporation might be heard to raise the question. An examination of the statutes covering foreign corporations (Gen. Stat. 1909, §§1710-1726) shows that while making various requirements they do not in any instance make the failure to observe them work a forfeiture or result in the individual liability of the incorporators. Morawetz on Private Corporations, volume 2, second edition, section 665, after reviewing the decisions of various states says that the object of statutes like the one here involved is to protect parties dealing with these companies from imposition and to .secure convenient means to obtain jurisdiction in the local courts, but that it is not the primary purpose to render the contract and dealings of the corporation which has not complied with the statutes void and unenforceable, and hence when such result has not been previously declared it should not be judicially imposed. Without considering the alleged estoppel of the plain tiff or the right of any party except the state to question the power of the corporation, it is sufficient to say that under the settled rule as to the general rights of private corporations as declared in Pape v. Capitol Bank, 20 Kan. 440, A. T. & S. F. Rld. Co. v. Fletcher, 35 Kan. 236, 10 Pac. 596, and The State v. Water Co., 61 Kan. 547, 60 Pac. 337, and the effect of the statute concerning foreign corporations as stated in The State v. Book Co., 69 Kan. 1, 76 Pac. 411, the acts of the Childress Mining Company were not void, and the incorporators can not be held personally liable (see, •also, Hamilton v. Reeves & Co., 69 Kan. 844, 76 Pac. 418; The State v. Pullman, 75 Kan. 664, 671, 90 Pac. 319; Boggs v. Kelly, 76 Kan. 9, 90 Pac. 765). It can not be held, in view of all the agreed facts, that the failure to comply with the statute in question authorizes or requires a holding that the incorporators were falsely holding out the company as incorporated or fraudulently using their charter as a shield from personal liability. The judgment is therefore affirmed.	[ -16, 106, -76, 12, 26, 96, 58, 26, 105, -95, -91, 115, -55, -113, 4, 113, -25, 47, -43, 122, -26, -109, 19, -94, -54, -13, -15, -51, -79, 88, -84, -44, 76, 16, 10, 21, -90, 72, -63, -100, -50, 8, 40, -56, 88, 10, 58, 123, 112, 75, 113, -98, -13, 41, 28, -21, 109, 44, 107, -67, 89, -7, -86, -59, 125, 20, 1, -128, -102, -121, 72, 62, -40, 49, 1, -20, 83, -74, -58, -12, 47, -39, 12, 120, 99, 35, 28, -57, -72, -120, 62, -65, -115, -27, -122, 88, 43, 76, -74, 29, 106, 6, 3, -6, -22, 12, 88, 124, 3, -113, -46, -93, 15, 62, -33, 67, -5, -121, 51, 112, -60, -94, 93, 71, 58, -109, -113, -104 ]
Per Curiam: The ruling on the former hearing is adhered to.	[ -80, -4, -51, -35, 10, 99, 58, -72, 77, -11, 119, 81, 105, -110, 29, 117, 51, 111, 20, 99, -122, -78, 82, -47, -2, -13, -62, -43, 57, -2, -25, 30, 72, -80, -94, -43, 102, -56, -39, 82, -58, 29, -7, -19, 97, 50, 48, 55, -112, -97, 113, -41, -29, 104, 21, -58, 41, 44, 110, -31, 81, -8, -97, 14, 109, 5, -109, -90, 30, -122, -40, 46, -115, 57, 1, -86, 115, -12, 6, 116, 107, -69, 32, 102, 96, -126, -63, 111, -88, -56, 119, -4, -115, -90, 27, 25, -24, 97, -105, 121, 100, 81, 38, 110, -27, -59, 127, 100, 91, -113, -50, -77, -97, 121, -34, 66, -22, -79, 50, 5, -127, -6, 86, -61, 33, -45, -106, -78 ]
Per Curiam: In a former opinion, handed down but not published, it was held that certain remarks of counsel for the prevailing party in his closing argument were improper, and that the failure of the court to sustain objections thereto and to admonish the jury to disregard the same was error which required a reversal of the judgment. In the opinion it was stated that no brief had been filed by appellee. A rehearing was allowed when attention was called to the fact that appellee’s brief and abstract had been filed a few hours before the argument, but by oversight had not been presented to the court. The Kinseders were sued for a real-estate commission which they claimed they did not owe. There was a sharp conflict in the evidence, and the jury returned a verdict against them for the full amount sued for, $525, with interest. On cross-examination John Kinseder admitted that he and his wife had been arrested at different times. He also testified: “Generally when I was arrested they would send for me, or my lawyer to report at a certain day. They would n’t come and take me down. Sometimes my attorneys went for me without the police doing it. I had a standing lawyer that I paid by the month.” The court and every one seem to have taken it for granted that the charge upon which the Kinseders had at various times been arrested was for violating the prohibitory laws, although no witness so testified. So far as the admissions of the defendants may have affected their credibility as witnesses, liberal comment by counsel was proper. Some of the remarks by which counsel besought the jury to return a verdict for the plaintiff, and thereby set the seal of their condemnation upon the conduct of the defendants in violating the prohibitory laws of the state, were quite eloquent; but they furnish no substantial or legal reason why a jury should return a verdict against the defendants in a civil action. Whether the statements had the slightest effect upon the result is only a matter of conjecture; and in view of the fact that the argument appears to have been, to some extent at least, induced by the argument of opposing counsel; and especially in view of the fact that the trial court overruled a motion for a new trial based upon these grounds, and approved the verdict, evidently because the court believed that the defendants’ rights had not been prejudiced, we feel it our duty to affirm the judgment. Judgment affirmed.	[ -16, -18, -67, -97, -118, 96, 48, -36, 101, -64, 54, 115, 109, -53, 20, 105, 118, 111, 84, 107, -42, -77, 87, 67, -10, -13, -14, -47, -79, -50, -26, -4, 76, -80, -30, -43, 102, -62, -41, 86, -114, -113, -104, -59, -39, 100, 48, 19, 80, 3, -91, -98, -29, 44, 17, -53, 41, 40, 110, 61, -32, -72, -98, 15, 111, 4, -77, 52, -100, -62, 88, 42, -108, 49, 1, -24, 115, -74, -110, 85, 11, -85, 13, 102, 98, 32, -43, -21, -24, -104, 47, 95, 13, -89, -111, 88, 9, 64, -74, -97, 117, 32, 38, 126, -2, 28, 93, 108, 14, -49, -42, -77, -113, 54, -100, -56, -30, -125, 16, 112, -51, -72, 92, 66, 17, -103, -114, -108 ]
The opinion of the court was delivered by Benson, J.: This is an appeal from a judgment refusing probate of the will of Wallace Gordon for want of testimentary capacity. The .testator was a farmer 72 years of age. The will was made on February 14, 1910, and he died on the 27th day of April following, leaving a wife but no children. For several years before his death he had been in failing health and his mind grew feeble. For some time he was in a distressing physical condition, and his mental faculties were impaired — whether sufficiently to destroy testamentary 'capacity was the issue in this case. Upon this issue a score or- more of witnesses living in the vicinity of the testator’s home, including the two witnesses to the will and a doctor who treated him for the last seven years of his life, testified to their opinions that he was of unsound mind. They described his conduct and language, stated their means of observation, and related incidents and circumstances upon which their opinions were based. Other witnesses gave their opinions that the testator’s mind was sound. They too stated reasons and related circumstances upon which their opinions were based. In short, there was a sharp conflict in the testimony, and the finding of the •district court that the testator was not of sound mind and was not possessed of testamentary capacity is conclusive. The rules of law by which testamentary capacity is to be measured are quite fully argued by the plaintiffs, but nothing appears in the abstracts to indicate that the court did not correctly apply them in weighing the evidence and finding the facts. It would require several pages to state in substance the language,, conduct, and appearance of the testator, and the incidents and circumstances related by the witnesses, and would serve no good purpose. Two or three of the plaintiffs’ witnesses were asked whether, based upon their observation of the conduct, demeanor and actions of Mr. Gordon, he was, in their opinion, competent to intelligently execute a will on the day it was made and intelligently to dispose of his property. The questions were objected to because they embraced thé ultimate fact in issue. It must.be remembered that these witnesses testified to the incidents, circumstances, conduct and appearances, upon which their opinions were based, and that there was ample competent evidence to support the finding without this testimony of these particular witnesses. Conceding that the questions were objectionable, the error was harmless. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748; Kimball v. Edwards, 91 Kan. 298, 137 Pac. 948.) It will be presumed that the finding was made upon com petent evidence and that the court was not influenced, by the opinions of witnesses in fixing the standard of' testamentary capacity. Criticism is made of the testimony of the subscribing witnesses. It is said that such testimony must be: received with great caution. Attesting witnesses are not disqualified. Their testimony on the question of the sanity of the testator is constantly received. (3'-Wigmore on Evidence, § 1936.) Its weight, like all. other testimony, must be left to the court or jury trying the fact. No error is found in the proceedings and the judgment is affirmed.	[ 115, -18, -35, -97, -118, 96, -86, -38, 65, -21, 39, 119, -19, -46, 84, 107, 114, 45, 113, 107, -34, -77, 22, 1, -46, -13, -5, -97, 49, -23, -12, 85, 76, 42, -126, -107, -26, -120, -27, -48, -52, 22, -103, 109, -37, 80, 54, 99, 84, 79, -43, -98, -29, 46, 61, -17, 40, 60, 75, -72, 112, -80, -114, -123, -49, 20, 50, 102, -100, -29, 120, 47, 16, 49, 1, -24, 115, -106, -124, -12, 111, -103, 44, 114, 102, 17, 25, -20, -40, -120, 31, 47, -115, -89, -106, 24, -88, 96, -106, -69, 117, 116, 14, -12, -17, 84, -100, 116, 5, -113, -42, -95, -55, 60, -104, -117, -13, 43, 16, 113, -51, -62, 92, 35, 115, -103, -114, 50 ]
The opinion of the court was delivered by Mason, J.: On March 31, 1906, Elizabeth Fairbank, a widow, executed to her son, Rudolph L. Fairbank, a warranty deed to a tract of land containing 350 acres. On February 14, 1907, she executed a will giving almost the whole of her property to him, and naming him as executor. She died on August 3, 1908. In an action brought by other heirs — her grandchildren — and participated in by her daughter, Eliza Carter, the deed and will were held to have been the result of undue influence, and were set aside. Rudolph L. Fairbank appeals. Error is assigned with respect to various specific rulings, but the most serious question presented is whether there was any substantial evidence to support the finding of undue influence and to warrant a judgment setting aside the deed and will. The following must be regarded as a part of the established facts of the case, since they were either admitted, proved, or supported by sufficient evidence to warrant the trial court in finding their existence: The husband of Elizabeth Fairbank died intestate when she was thirty-six years of age. There were then five surviving children; Rudolph and Eliza, already referred to, aged respectively four and nine years; Artemas, who died intestate and unmarried; and William H. and Celia, who have since died. The sons and only children of William H., and the daughter and only child of Celia, are the plaintiffs in this action. The property covered by the deed and will in question was worth about $40,000. The deed was not recorded until after the death of the grantor, and the other members of the family did not know of its execution. It recited a consideration of one dollar. Mrs. Fairbank was 79 years of age at the time of her death. She had for some years been afflicted with Bright’s disease, causing her much suffering. For about twenty-five years before her death her son Rudolph, who is unmarried, managed her property and business, living with her for the last few years. No bank account was kept in her name. She was feeble and in ill health. She had learned to read after she was sixty years of age. She was to a certain extent enfeebled mentally by dropsy, heart disease and Bright’s disease. She was not as clear mentally as she had been. The lawyer who drew her will had not previously been acquainted with her. She had never before employed him. Rudolph Fairbank was frequently in his office consulting him as his attorney at about this time. Some ten years before she died Elizabeth Fairbank expressed an intention that her daughter, Mrs. Carter, should have an equal share of her property, and she repeated this a year and a half before her death. She said that she did not have control of her money; that Rudolph kept it in his possession; that she intended to have her right; that she would have to resort to law with Rudolph to have it fixed. To a nurse who was in attendance upon her she complained that she did not have as much money as she wanted; she cried and said she would have to take the law to Dolph [Rudolph] because he did not do the right thing concerning money matters ; that her property and his had never been divided; that she wanted this done, and he had promised to have a lawyer attend to it, but failed to do so. She asked the nurse to take word to a lawyer to come to see her, but changed her mind, saying that Rudolph might come home, and if he found a lawyer there unpleasantness might result; that she would see the lawyer later when Rudolph was out of town. She said her son did not think she was competent to handle money — that he did not give it to her. To the suggestion that her son would do the right thing she answered, “You don’t know Dolph.” The will gave to the testatrix’s daughter, who was possessed of but small means, property worth about $500. The daughter of the dead daughter received nothing, and the sons of her dead son but $5 each. The will recited that advancements had been made from time to time to her children; there was evidence tending to contradict this. No attempt is here made to summarize all the evidence. The portion of it which supported the appellant’s contentions is purposely omitted, because the judgment must stand in spite of any conflict of testi mony or contradictory inferences, if there is substantial evidence fairly tending to support the decision of the trial court; and we think it must be said that such is the case. From the evidence set out it may reasonably be inferred that Rudolph Fairbank was the confidential agent and adviser of his mother; that he managed the business as though it Were his own; that he had a complete ascendancy over her; that she stood in some fear of him; that her will was in some degree subservient to his; and that both the deed and the will were the result of his undue influence upon her. It remains to consider' the specific assignments of error. A motion to require Eliza Carter to separately state and number the causes of action set out in her answer, and a demurrer to her answer for misj oinder, were overruled. Neither ruling appears to have been prejudicial to the appellant. The cross-examination of a witness as to Mrs. Fairbanks mental condition was restricted, but as the court in effect found that she was of sound mind, this can not have been prejudicial. Various objections are made on account of the admission of evidence, but as the case was finally tried by the court, the admission even of incompetent evidence is not ground for reversal. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748.) A statement made by Rudolph Fairbank as to his relations with his mother was stricken out. It was probably incompetent under the rule regarding transactions with persons since deceased, but in any event was not very important. A statement by another witness to the effect that Mrs. Fairbank was displeased with her daughter’s marriage was stricken out, but the substance of it was after-wards admitted. A jury was impaneled to-make answers to specific questions. Complaint is made of instructions given and refused. The court afterwards made findings of its own, upon which the judgment was rendered, so that these rulings can not be important unless they show a mistaken view of the law in a material matter (Linscott v. Conner, 85 Kan. 865, 118 Pac. 693), and we do not find this to be the case. One instruction complained of was to the effect that if a testator at about the time a will is made is unduly controlled by the beneficiary in other important matters, an inference may be drawn that the same undue influence was exercised with regard to the will. This is not objectionable. (Boyse v. Rossborough, 6 H. L. Cas. [Eng.] 2, 51, quoted in Ginter v. Ginter, 79 Kan. 721, 734, 101 Pac. 634.) An instruction is objected to which stated in substance that if the deed from Mrs. Fairbank to her son was made without consideration, when she was enfeebled in mind, and that she then relied upon him for advice, or that he was then in charge of her property and business, a presumption of undue influence is created. It is argued that this authorized a presumption of undue influence from the mere fact that her son was managing her business. We do not think it fairly open to that construction. The purpose of the court was obviously to follow the law as declared in Smith v. Smith, 84 Kan. 242, 114 Pac. 245. After the jury had made their report and been discharged the court refused an application in behalf of the appellant to recall a witness to testify that after the making of the will Mrs. Fairbank had expressed her satisfaction with it, the statement being made that the testimony had been inadvertently omitted. ' The admission or rejection of the additional evidence at that time was a matter of discretion. Complaint is made of the refusal of the court to submit certain questions to the jury, but as the judgment is based on the findings of the court, this ruling is not now important. There is a recital in the abstract that the appellant requested the court to make and state in writing its conclusions of fact found separately from its conclusions of law, and that the request was overruled. The court did, however, make fifty-five written findings, including several adopted from the report of the jury, so that the request was substantially complied with, and if some of the findings might have been more properly classified as conclusions of law, no prejudice could have resulted. Complaint is made of the admission of evidence of declarations made by Mrs. Fairbank, bearing upon the question of undue influence. This evidence was admissible for the purpose of showing the state of her mind. (Mooney v. Olsen, 22 Kan. 69; Caeman v. Van Harke, 33 Kan. 333, 338, 6 Pac. 620; Throckmorton v. Holt, 180 U. S. 552, 572; Note, 107 Am. St. Rep. 466.) The judgment is affirmed.	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The opinion of the court was delivered by Smith, J.: Appellee brought this action April 12, 1911, to quiet his title to a quarter section of land in Cheyenne county. In his original petition he alleged that he had been in the open, notorious possession of the land for more than fifteen years last past. In his amended petition this allegation was changed to eleven years last past. He claimed under a tax deed to the land, issued November 19, 1900, and also through a succession of conveyances made by Benson Plymate and wife by warranty deed, all being duly recorded. The appellants claim a lien on the land by virtue of a mortgage thereon executed by Plymate and wife on October 1, 1888, to secure a promissory note for $500 due five years after that date, maturing October 1, 1893. The appellee owed no personal duty to the appellants or to the holder of the mortgage to pay the mortgage or to pay the accruing taxes. No personal relation subsisted between the parties. It appears without controversy that sometime prior to the Plymates leaving the state they conveyed the fee to the land to the Nebraska Mortgage Company, which corporation conveyed it to one Updike, who in turn conveyed it to appellee in June, 1896. The appellants contended that appellee having obtained the legal title before he acquired his tax deed the two titles merged, and it should be presumed that the appellee held possession under the title first acquired, and tljat the mortgage has not been extinguished by the tax deed and should be foreclosed. It was said in Rand v. Ft. S. W. & W. Rly. Co., 50 Kan. 114, 31 Pac. 683: “Merger is very largely a question of intention, and the court will always presume against it whenever it will operate to the disadvantage of a party.” (p. 119.) To the same effect is Loan Association v. Insurance Co., 74 Kan. 272, 86 Pac. 142, in which it was said: “Where a mortgagee of real estate acquires the legal title to the mortgaged property, the mortgage will become merged in the larger estate or not as the mortgagee may desire or his interest require.” (Syl. ¶ 1.) The title by conveyance from the former owner and by the tax deed became merged or not according as appellee desired or his interest was best subserved; the former title was subject to the mortgage, the latter was not. Hence there was no merger. The appellants’ right to attack the tax deed was barred by limitation years before this action was brought. The tax deed was then the paramount title and extinguished all other titles, as well as the lien of the mortgage. By the provisions of section 9483 of the General Statutes of 1909 no proceeding to defeat or avoid the sale could be maintained, except only where the taxes have been paid on the land redeemed as provided by law, unless the action be brought within five years after the recording of the tax deed. This proceeding on the part of the appellants was instituted upon the filing of their answer and cross-petition, much more than five years after the tax deed was recorded; in fact, about nine years. There is no contention that the taxes had been paid prior to the sale or that the land had been redeemed. The action to quiet title was instituted under the provisions of chapter 232 of the Laws of 1911, and the appellants claim that the law is invalid for the reason that it affects the obligations of a contract. This contention has been expressly negatived in the case of Shepard v. Gibson, 88 Kan. 305, 128 Pac. 371, in which it was said: “In the enactment of chapter 232 of the Laws of 1911 the legislature did not intend to take from a mortgagee any existing rights under the mortgage contract nor to deprive him of a remedy to enforce such rights, but its purpose was to give the owner of land on which there is a mortgage that has long been in default and a cause of action thereon is barred by lapse of time the right to bring an action and have the present condition or status of the mortgage adjudicated, and the act, therefore, does not operate to impair the obligation of the mortgage contract.” (Syl.) As said in Shepard v. Gibson, supra, the only purpose of chapter 232 of the Laws of 1911 is to enable owners of land, upon which there is a mortgage long in default and .the cause of action thereon barred by lapse of time, to bring an action to have the present status of the mortgage adjudicated. The appellants had no rights in the premises which they could enforce at law, and the appellee had a right to have his title, whatever it might be, cleared of record by a judgment that the mortgage constituted no subsisting lien upon his land. The judgment is affirmed.	[ 116, 108, -108, 45, -54, -28, 42, -70, 104, -96, 39, 83, 111, 66, 20, 13, 70, 45, 65, 104, -26, -77, 6, -119, -46, -14, -39, -35, -75, -36, -12, -42, 76, 48, 66, 117, 102, -126, -121, 84, -50, -124, 8, 109, -39, 68, 52, 75, 80, 72, 85, -54, -13, 34, 57, 65, 9, 46, -53, -72, -48, 120, -113, -123, 127, 7, 17, 101, -88, -61, 104, -118, -112, 49, 0, -24, 83, 54, -122, 118, 13, 27, 40, 34, 98, 32, 85, -17, -8, 24, 46, 119, 29, -90, -14, 88, -126, 97, -65, -103, 109, 4, 15, 118, -25, -123, 29, 108, 23, -54, -42, -109, 7, 126, -103, 3, -9, -125, -96, 112, -53, -28, 92, 103, 83, -101, -113, -8 ]
The opinion of the court was delivered by Porter, J.: The action in the district court was to recover $1250, which the plaintiff claims is due him on account of having been wrongfully dismissed by the •defendant as its superintendent in violation of the terms of the contract of employment. The errors complained of relate to the pleadings. The court sustained a demurrer to the fourth amended petition. The plaintiff elected to stand upon the petition, and judgment was rendered in favor of the defendant, from which plaintiff appeals. By agreement of the parties and ■consent of the court a motion to strike out certain portions of the third amended petition was resubmitted and reargued with the demurrer, in order that the ruling thereon sustaining the motion might be considered In this appeal. The petition alleged that on the 2d day of January, 1910, the plaintiff and defendant through its president and agent T. A. Parker, had a meeting at which the plaintiff orally proposed to enter the employ of the ■defendant as superintendent for one year commencing April 1, 1910, at a salary of $5000 per annum, and was to be furnished with a residence near the plant and with light, fuel, water and conveyance to and from the plant to the towns of Benedict and Altoona, and was also to have an option to purchase 250 shares of the common stock of the defendant company at $30 per share; that on January 14,1910, the defendant in writing accepted plaintiff’s proposition in a letter, a copy of which, marked “Exhibit A,” was attached to and made a part of the petition; that thereafter, on the 15th day of January, the plaintiff in writing answered the defendant’s written acceptance by a letter, a copy of which, marked “Exhibit B,” was also attached to the petition; that afterwards the plaintiff met with the board of directors and executive board of the defendant company at its offices in Kansas City, Mo., at which time the executive board duly ratified and confirmed the action of the president of the company in employing the plaintiff, but that the secretary of the defendant failed or neglected to make any record in the minute books of the company showing such ratification. Attached to the petition there was also a copy of a letter marked “Exhibit C,” purporting to have been written by T. A. Parker and two other individual members of the board of directors of the defendant company, which the petition alleged was written for and on behalf of the defendant. Copies of other correspondence between the plaintiff and the defendant were likewise attached to and made parts of the petition. On the motion of the defendant the court ordered these exhibits stricken from the petition, and this is the first error complained of. “Exhibit A,” which is the letter upon which the plaintiff principally relies, reads as follows: “Altoona Portland Cement Co., Kansas City, Mo., Jan. 14, 1910. “Mr. C. J. Van Doren, Chanute, Kansas. “Dear Mr. Van Doren : After consulting several members of our board of directors have decided to accept your proposition and I herewith offer you an option ‘for one year from the time you take charge of our plant’ on 250 shares of the common stock of our company at $30.00 per share, said option not to extend beyond April 1st, 1911. . “Other conditions to be as talked over when you were in the city before. Now Van I have practically told the other members of Board that I could secure your services on these conditions and I certainly do not want you to disappoint me. Furthermore I should like very much to have your decision prior to Wednesday the 19th as on that date we hold our annual meeting. If possible I should like also for you to be in the city on the 19th that our full board may have the privilege of meeting you. “Seriously Mr. Van Doren I feel that we should take this matter up and settle it at once for I have counted on you for so long and we have come so near an agreement, and we have practically accepted every proposition that you have made. I feel that you should take this matter up with your people and tell them that they must let you off, at latest by the 1st of April. Should they decide to let you off at once, or within 30 days, all the better. “Kindly let me hear from you by return mail or better still in person, and very much obliged. Yours very truly, Altoona Portland Cement Co., T. A. Parker, President.” “Exhibit B” is a copy of a letter dated January 15, written by the plaintiff to the defendant, in which the plaintiff says: “I have your favor of January 14th, and I note we have come together on the stock proposition, and 1 have decided to take the matter up .with Mr. Hill at once, and I do not feel that there is any doubt but I will be successful in securing my release.” He was then in the employ of Mr. Hill. It is quite obvious from a reading of these two letters that the minds of the parties at that time had met on the stock proposition alone. (Hayes v. Possehl, post.) “Exhibit A,” it is clear, accepts only the proposition relating to an option on stock, and contains suggestions that the plaintiff should take up the other matter and settle it at once and inform the defendant not later than April 1. It states in so many words that the parties “have come so near an agreement”; but the entire letter negatives the idea that it was intended as an acceptance of a proposition to enter the employment of the defendant. It contains no reference whatever -to the salary to be paid the plaintiff, nor any specific reference to the other matters which the plaintiff claims were included in his oral proposition with respect to the additional compensation he was to receive. “Exhibit B” was likewise properly stricken from the petition, for the reason that it was not signed by the defendant or by any person authorized by it. It was written subsequent to the time, of the making of the contract as alleged in the petition. It was therefore redundant and irrelevant matter. “Exhibit C” was signed by individuals; not by the defendant nor any person authorized in writing by the •defendant to sign it. The defense to this action and the decision of the court was based upon the provisions of the statute of frauds. The alleged contract was for services not to be performed within one year from the time of the making of the contract, and therefore was required to be “in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.” (Stat. of Frauds, § 6, Gen. Stat. 1909, § 3838; Ross v. Allen, 45 Kan. 231, 25 Pac. 570; Guthrie v. Anderson, 47 Kan. 383, 28 Pac. 164; Adams v. Carlton, 77 Kan. 546, 95 Pac. 390, and cases cited.) In Reid v. Kenworthy, 25 Kan. 701, it was said: “While the form of the memorandum is not material, it must state the contract with reasonable certainty, so that the substance can be made to appear and be understood from the writing itself, or by direct reference to .some extrinsic instrument or writing, without having recourse to parol proof.” (Syl. ¶ 2.) It is true that a contract may be embraced in letters and separate writings. The evidence of it may be gathered from several writings, but the rule is well settled that the. relation between the various instruments must appear in the writings themselves. Parol evidence can not ordinarily be resorted to for the purpose of establishing the relation .between different writings. (Ross v. Allen, 45 Kan. 231, 25 Pac. 570.) For substantially the same reasons, the court rightly sustained the demurrer to the fourth amended petition. It alleges the making of the oral proposition by the plaintiff on the 2d day of January, 1910, to enter the employ of the defendant for a term of one year commencing on April 1, upon conditions and terms at that time stated by him, and that on the 14th of January the defendant accepted his proposition in writing, as shown by “Exhibit A,” which is the same as that referred to in the former part of this opinion. This is the only acceptance relied upon in the petition, and as the letter of -January 2 can not be -considered as an acceptance of any proposition to enter the employ of the defendant, and contains no reference to the terms of the alleged contract, the petition failed to state a cause of action. The essential terms of the contract must be set forth in the writing signed by the party to be charged therewith, in order to satisfy the statute of frauds. None of the conditions or terms of the alleged agreement is set forth in the writing relied upon as an acceptance. The letter shows that the defendant was quite anxious that the plaintiff should enter its employ, provided the parties could reach an agreement and the plaintiff was able to secure his release from a contract of employment with other parties. While the form of the writing is not material, the rule is that it must state the contract with reasonable certainty, so that the substance can be made to appear and be understood from the writing itself, or by direct reference to some extrinsic instrument or writing, without having recourse to parol proof. (Reid v. Kenworthy, 25 Kan. 701; Schneider v. Anderson, 75 Kan. 11, 88 Pac. 525.) For the reasons stated, it is apparent that the judgment must be affirmed.	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The opinion of the court was delivered by Johnston, C. J.: The controversy in this case centers on the ownership of the north half of the stone wall of a building situated upon lot sixty-one, on Kansas avenue, in the city of Topeka, and whether or not there.has been a conversion of that wall.by Bux and Stadel, who claim that they purchased it with all the structures and improvements thereon. The case was here before, but the only question presented on that appeal was whether the petition of Dyson, who sold the lot to Bux and Stadel, stated a cause of action. (Dyson v. Bux, 84 Kan. 596, 114 Pac. 1092.) In Dyson’s petition it was alleged that he orally contracted' to sell the north half of the wall on lot sixty-one to one Bauerlein, but before it was complete a sale of the lot was made to Bux and Stadel, and that at that time he informed them that the sale did not carry the one-half of the wall as he had already agreed to sell that part of it to Bauerlein, and that the deed subsequently executed to Bux and Stadel described the property conveyed as “lot sixty-one (61) on Kansas avenue, and improvements thereon which consist of one-half each of the north and south walls of said building.” There was a charge in the petition, too, that Bux and Stadel conspired with Bauerlein to defraud Dyson, and that Bauerlein thereafter refused to complete the purchase of the wall, but did purchase the same from Bux and Stadel and used that wall as a part of the building which he erected on the adjoining lot. When the ruling on the demurrer had been reviewed and the case remanded for -a new trial Bux and Stadel filed an answer to the effect that the purchase of lot sixty-one covered the lot and everything on it, including the entire north wall, that Dyson, knowing that he had agreed to convey the lot and all of the improvements upon it, undertook to defraud them by having the scrivener put into the conveyance a peculiar exception, and attempted to defraud Bux and Stadel, who were unfamiliar with legal papers, by inserting a clause having for its purpose the reservation of half of the north wall on the lot which they had in fact purchased and which entered into the consideration that they paid for the lot. In support of their averments testimony was offered to the effect that Bux, who conducted the negotiations, expressly told Dyson that he wanted the deed to include all of the improvements upon the lot, and that Dyson said, “All right,” that Dyson selected a scrivener and directed him what to write in- the instrument of conveyance; that Dyson informed Bux, in explanation of the exception, that half of the wall was not upon lot sixty-one but was upon the adjoining lot; that afterwards he claimed to own a part of the wall, and that when Bux insisted that they had purchased the lot and all that was on it Dyson said, “We can work that all right,” that Bauerlein wants the wall and “we will get $500 for it and divide up.” Bux replied that “if the wall is on our lot we want it, and if it is n’t we don’t want it.” After considerable testimony relating to the circumstances of the sale and the charges and countercharges of fraud the jury made special findings which exculpated Bux, Stadel and Bauerlein from the charge of committing a fraud upon Dyson and returned a general verdict in favor of appellees. Dyson appeals, and insists that there was a determination on the former appeal to the effect that he was the owner of an interest in the wall and that the question is not now open to reexamination. That decision, as we have seen, only went to the extent of determining that the allegations of the petition stated a cause of action. The exception in the instrument is ambiguous in its terms. The court did not hold that the words of the exception alone were sufficient to show that'a reservation of one-half of the wall had been made. The ruling was based on the words in the clause explained and supplemented as they were by the allegations of the petition as to the terms of the preceding-oral contract and the circumstances showing the intention of the parties. The petition alleged that Bux and Stadel understood and agreed that they were not acquiring all of lot sixty-one, but that Dyson was reserving to himself one-half of the wall on the lot. The testimony tended to show and the finding of the jury was to the effect that the appellees did not understand or agree that any part of lot sixty-one should be- reserved, but that instead of reserving one-half of the wall that appellant represented and they understood it to be upon lot fifty-nine adjoining. They bought lot sixty-oné and every wall or structure on it, and were led to believe that they could not acquire all of the wall of the building on the lot, and that one-half of the north wall was excepted from the deed because appellant did not own it and had represented it to be upon the adjoining lot. This was a fraud upon the appellees, and the testimony was sufficient to warrant the finding that appellant had no cause of action against them for the conversion of the wall. The decision on the former appeal is not controlling in this one. It is true, as appellant contends, that ordinarily when a principle of law has been settled by a decision it becomes a precedent to be subsequently followed in later appeals, but the rule of stare decisis does not ápply where the facts are not the same as those involved in the former decision. (11 Cyc. 745.) The facts alleged in the petition of the case which formed the basis of the former decision substantially differ from those alleged in the answer and which were proven upon the trial. No prejudicial error appearing in the case the judgment of the district court will be affirmed.	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The opinion of the court was delivered by Porter, J.: In 1882 the city of Leavenworth, a city of the first class, granted a franchise to the defendant to use the streets, alleys and grounds of the city for the purpose of placing water pipes therein and to furnish the city and its inhabitants with water. The franchise was to continue for a period of twenty years, the city reserving the right after the expiration of that time to purchase the waterworks, with all extensions, rights and franchises belonging thereto. The franchise was accepted and the defendant erected its waterworks plant, and from that time to the present has been furnishing water to the city and its inhabitants. Subsequent to the passage of the franchise ordinance and its acceptance by the water company the legislature, in 1883 (Laws 1883, ch. 34, § 2), passed an act declaring that such contracts and franchises shall not extend for a longer period than twenty years, unless extended as provided in the act; and further provided therein that after the expiration of such period, in case the city failed to purchase such waterworks, then the owners thereof should thereafter have possession and enjoy all the rights, privileges and franchises theretofore granted to or acquired by them, and power to maintain and operate the waterworks, with all the rights, franchises and privileges theretofore held and granted, until the city should purchase the same. The act by express terms was made to apply to franchises before that time granted by cities to waterworks companies. The twenty-year period for which the original franchise was granted has long since expired. The city has failed to exercise its privilege of purchasing the waterworks, and in November, 1913, the city passed an ordinance regulating the rates to be charged by the defendant to the city and its inhabitants for water furnished, and providing certain conditions upon which the defendant should make extensions of its pipes and mains to accommodate the city and its inhabitants, and also providing other regulations with respect to furnishing meters to private consumers. The old rate for water furnished the inhabitants was fifty cents per 1000 gallons. The new ordinance fixed the rate to be charged at thirty cents. The defendant refused to obey the ordinance, and continued to keep in force the old rates, and this action was brought for a mandatory order requiring the company to comply with the ordi nance and to observe and put in force the rates fixed thereby. The water company filed its answer and return to the alternative writ, claiming first, that the mayor and commissioners of the city of Leavenworth have no jurisdiction of the matter and have no right to fix rates for water furnished the people, nor in any way to regulate the conduct of the defendant; that the jurisdiction of such matters is in the public utilities commission of the state. In the answer and return it is further claimed that if the mayor and commissioners of the city have power to regulate the defendant, the ordinance of 1913 is unconstitutional and void, for the reason that in the original ordinance of 1882 a contract in regard to such- matters was made and the rates which the defendant should charge for water were fixed, as well as the conditions under which the company should be required to extend its mains, and hence, that the new ordinance is in effect a law of the state that impairs the obligations of the contract embodied in the original ordinance, and is therefore unconstitutional and void. The case is submitted upon demurrers to the answer, and return. At the outset it is necessary to determine the jurisdictional question, and as we have arrived at the conclusion that the defendant is correct in the contention that the public utilities commission and not the city has exclusive jurisdiction of the subject matter of the controversy, the other questions raised by the demurrers and which are discussed in the briefs need not be considered. The public utilities act is chapter 238 of the Laws of 1911. By section 1 the commission is given “full power, authority and jurisdiction to supervise and control the public utilities . . . doing business in the state of Kansas, and is empowered to do all things necessary and convenient for the, exercise of such power, authority and jurisdiction.” The only excep tion to this unlimited control is contained in section 3, where the power of regulation of “all public utilities and common carriers situated and operated wholly or principally within any city, or principally operated for the benefit of such city or its people,” is vested exclusively in the city. It is alleged in the petition and in the alternative writ that the defendant is furnishing water to said city and the inhabitants thereof, to divers and sundry people, and to private and public institutions in and outside of said city, including parks, public schools, the United States military prison, the federal prison, Fort Leavenworth, Soldiers’ Home, and hospitals, and to charitable institutions. The answer admits these allegations, and further alleges that the defendant, in addition thereto, furnishes water to other persons outside of- the city; that of the whole amount of water furnished consumers, four-ninths thereof is furnished to consumers outside of the city; that all of defendant’s settling basins, intake pipes, and power plant are located outside of the city of Leavenworth; that the only facility located within the city of Leavenworth (except its pipe lines, hydrants, and facilities used in connection therewith) is a distributing reservoir; and that of the entire value of the defendant’s plant ($720,000) not less than $490,000 is devoted to the service of the city of Leavenworth and private consumers therein. It is quite obvious from the admitted facts that under the terms of the statute defendant’s plant can not be deemed a utility “situated and operated wholly or principally” within the city, nor can it be said to be “principally operated for the benefit of such city or its people.” The evident purpose in adopting the law was to provide for uniformity throughout the state in the control and regulation of public utilities, and in the rates to be charged by them, and to create a special tribunal for that purpose. Public utility statutes are of comparatively recent origin, but are generally regarded by the courts as entitled to a liberal construction in order to advance the benefits sought to be gained, and to avoid the evils sought to be averted by the legislature. (City of Troy v. United Traction Co., 202 N. Y. 338, 95 N. E. 759.) We do not believe that by the use of the word “principally” the legislature intended to mean a mere majority of the people served by a utility, nor that it was intended that the value and extent of the physical plant and machinery employed in furnishing public service should be appraised in order to determine whether the utility is principally operated for the benefit of a city, and the people thereof. Nor can we conceive that .the situation is altered in any respect by the fact that the United States government is one of the largest consumers of water among those supplied by the defendant outside the limits of the city. Doubtless the federal government could avail itself of any rates for service established by the state, but that question is not before us. The facts here present a stronger case for control by the public utilities commission than those in The State, ex rel., v. Gas Co., 88 Kan. 165, 127 Pac. 639, or City of Emporia v. Telephone Co., 90 Kan. 118, 133 Pac. 858. In both of the cases cited it was held that the utility fell within the j urisdiction and control of the public utilities commission. The other questions of law raised by the answer and return are not deemed to be difficult of solution; and as a matter of fact, the parties are not very far apart in their contentions as to the law. The defendant concedes the power of the state, through some agency, to regulate the rates to private consumers, but contends that the state has no power to change the contract rate in the ordinance for water furnished to the city, nor to impose upon the defendant additional burdens respecting the extension of mains and the furnishing of meters to private customers. It would be useless for us to pass upon questions of law which will depend largely upon the facts to be determined by the utilities commission after a full hearing. It follows that the demurrers must be overruled and the action dismissed for the reason that the jurisdiction and control of the controversy is in the public utilities commission.	[ -16, 106, -40, -18, 26, 108, 40, -109, 105, -79, -25, 91, -23, 80, 20, 105, -61, 125, 81, 123, -60, -93, 71, 34, -110, -45, -45, -35, -5, 93, -28, -27, 76, 32, 74, -99, -58, -62, 85, -36, -58, 5, 9, -31, -43, 67, 54, 74, 114, 78, 81, -116, -77, 46, 24, -62, -83, 60, -3, 45, -48, 113, -118, -115, 95, 21, 16, 6, -120, -59, -54, 14, -104, 17, 24, -24, 115, -90, -122, -3, 37, -101, -84, 98, 98, 35, 33, -17, -52, -116, 14, -37, -115, -90, -76, 88, 42, 69, -76, 93, 112, 22, 7, -2, -22, -107, 95, 108, 1, -114, -75, -29, -49, -20, -110, 7, -17, -89, 48, 116, -57, -88, 92, 71, 51, 23, -98, -36 ]
The opinion of the court was delivered by West, J.: In December, 1909, the plaintiff recovered a judgment against defendant Quinby for $2300 and interest for money he had previously borrowed of her. He was engaged in the milling business at Council Grove, and in September, 1906, he borrowed $7000 of the Farmers and Drovers Bank in order to meet certain indebtedness at the bank and enable him to procure some Nebraska land in exchange for his mill property, giving two notes of $3500 each, one signed by defendant Dodderidge and the other by Quinby’s father-in-law, S. C. Houck. The court found that to induce Dodderidge to become surety Quinby agreed that the Nebraska property was to be sold and the proceeds applied to the payment of the note signed by Dodderidge. Quinby, however, traded the Nebraska land for Colorado land, and so disposed of that as to become the owner of 320 acres in Morris county, Kansas, subject to a mortgage, placing the latter property in the hands of W. D. Houck, who mortgaged it for $5000 to pay off the incumbrance. Before the plaintiff recovered her judgment, Quinby gave Dodderidge a written order directing W. D. Houck, upon sale and settlement of the farm, to pay Dodderidge all money received above the mortgage of $5000 and $3500 paid to S. C. Houck, “the total amount to be retained by you $3500 above the mortgage.” This order was presented to Houck by Dodderidge and assented to by the formér. In September, 1910, Dodderidge paid his note in. full. The note signed by S. C. Houck has been paid. The plaintiff brought this action to subject the land to the lien of her judgment, in which action Dodderidge intervened. The court awarded Dodderidge an equitable lien on the Morris county land to secure the amount of the debt paid by him, and gave the plaintiff a lien thereon secondary and inferior to that of Dodderidge, both subj ect to the mortgage of $5000, and ordered the land sold and the proceeds applied accordingly. The plaintiff appeals and insists that she should be given a lien prior to that of Dodderidge. As the Houck note has been paid, the plaintiff’s lien appears to be subordinate only to the mortgage of $5000 and the amount of the Dodderidge note, but what the value of the 320 acres of land is and what security this leaves the plaintiff the record does not show. The plaintiff contends that as she discovered and unearthed the fraud by which Quinby was covering up the title to the land, and secured an express finding that it was held by Houck for the use and benefit of Quinby, her lien should not be postponed for the claim of Dodderidge, who had nothing but a written order to pay him out of the proceeds when the land should be sold, and that at any rate a lien on the proceeds is not a lien on the land. Dodderidge, failing to be reimbursed out of the Nebraska land, secured the written order on Houck to pay upon the sale and settlement of the Kansas land, so that whatever equitable right this agreement and this order gave was vested in him before the plaintiff had recovered her judgment against Quinby. It is argued that Dodderidge must have known that Houck was holding the title for Quinby, and, resting upon his secret and unrecorded agreement and order, he permitted the plaintiff to expose the fraud already known to himself, and should not now be allowed to profit by the advantage he had thus secretly gained. But it might be said that Dodderidge in reality furnished a part of the consideration for the land which in'the first instance was to be sold and his note paid from the proceeds. Tracing the deals and their proceeds into the Kansas land, he obtained the order in question, which being given by Quinby, the real owner, and accepted by Houck, the holder of the paper title, was good as between himself and them, and the property was thus burdened when the plaintiff became a judgment creditor of Quinby. Hence, when she procured the application of her lien to the land in question it was only to such interest therein as Quinby actually had. It is asserted and denied that Dodderidge, after his intervention, did much to get at the real facts, and thus assisted the plaintiff in making the truth known. At all events it is clear that if we treat the situation as one giving him an equitable lien it was prior to the judgment lien of the plaintiff. True, he did not liqui date the note and thus actually pay part of the purchase price until after this action was brought to subject the land to the plaintiff’s judgment, but he was entitled to' security for his liability on the note, and by such payment he made certain the fact and amount of Quinby’s liability to him, and the plaintiff was in no wise harmed thereby. It is stated that Quinby agreed to place the title to the Nebraska land in Dodderidge, but we find no such evidence or finding in the record, and must, therefore, consider the matter in the light merely of the agreement to sell and pay out of the proceeds.. Authorities are cited for and against the theory of an equitable mortgage. While the name is not important, probably the right of Dodderidge to look to the land or its proceeds might well be called an equitable lien to ■secure his reimbursement to the extent that he had in effect furnished the money to pay for the land. “In Courts of equity the term ‘lien’ is used as. synonymous with a charge or incumbrance upon a thing, where there is neither jus in re, nor ad rem, nor possession of the thing. The term is applied as well to charges arising by express engagement of the owner of property, and to a duty or intention implied on his part to make the property answerable for a specific debt or engagement.” (1 Jones on Liens, 2d ed., § 28.) “It follows, therefore, that in a large class of executory contracts, express or implied, which the law regards as creating no property right nor interest analogous to property, but only a mere personal right and obligation, equity recognizes, in addition to the obligation, a peculiar right over the thing with which the contract deals, which it calls a ‘lien,’ and which, though not property, is analogous to property, and by means, of which the plaintiff is enabled to follow the identical thing, and to enforce the defendant’s obligation by a. remedy which operates directly upon that thing.” (1 Pomeroy’s Equity Jurisprudence, 2d ed., § 166.) In one case the maker of a deed of trust to secure certain promissory notes agreed with the holder that in consideration of his forbearance in foreclosing the land should be cultivated in cotton for one year, one-half to go to the holder to be accredited on the notes, giving a lien on the whole crop for the payment of one-half. During the year the maker died insolvent, and it was held that the holder of the mortgage had an equitable lien on the cotton superior to that of the creditors of the maker. (Kirksey, Adm’r, v. Means, 42 Ala. 426.) In another case a society of Shakers, an unincorporated community holding its property in common, had given a promissory note, executed by its trustees, in return for money which went to increase the funds of the society. It was held by the United States court of appeals of the sixth circuit that the holder was entitled to an equitable lien on the property of the Shakers. (Society of Shakers v. Watson, 68 Fed. 730, 15 C. C. A. 632, 163 U. S. 704, 16 S. Ct. Rep. 1206, 41 L. Ed. 313.) In the opinion Severens, J., speaking for judges Taft, Lurton and himself, said: “It is to such a case that the jurisdiction of a court •of equity is peculiarly applicable. By the flexibility of its procedure to fix the liability and the scope of the remedies it is authorized to employ for its satisfaction, it can furnish complete relief where the remedy of the common law is neither plain nor adequate. The note was not effectual against anything but this changing body, and that only by supposing it to be intended to be a charge against the property which all the members of the society had concurred in putting in a common mass in the hands of the trustees of the society. . . . And the consideration of the note went to augment the fund upon which it is sought to charge it.” (p. 738.) It is said of an equitable lien: “It is not a right of property in the subject-matter •of the lien nor a right of action therefor, nor does it depend upon possession; but is merely a right to have the property subjected' to the payment of a debt or claim, and it applies as well to charges arising by express engagement of the owner of property as to a duty or intention implied on his part to make the property answerable for a specific debt or engagement.” (25 Cyc. 662.) See note to Bell v. Pelt, 51 Ark. 433, 11 S. W. 684, 14 Am. St. Rep. 57, in 4 L. R. A. 247; Foster v. Bank, 71 Kan. 158, 80 Pac. 49; Charpie v. Stout, 88 Kan. 318, 128 Pac. 396; Mason v. Saunders, 89 Kan. 300, 131 Pac. 562; 3 Words & Phrases, pp. 2440, 2441. While the case is not free from doubt, we conclude and hold that under the broad principles of equity the trial court was justified in ruling as it did. The judgment is therefore affirmed.	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The opinion of the court was delivered by Johnston, C. J.: In an action brought by C. E. Woods he charged that L. W. Parker had deceived and defrauded him by selling and transferring to him two promissory notes executed in his favor by G. L. Nicholas, one for $327.50 and the .other for $300, due at different times, and representing that the notes were secured by a mortgage upon an engine and certain implements which were not otherwise encumbered, when in fact there was a prior mortgage on the property in an amount about equal to its value. In 1907 Parker purchased the engine from Hart-Parr Company, and to secure the payment of the purchase price gave that company a mortgage thereon for $1500. He paid $1000 of that indebtedness, and later sold the engine and some plows to Nicholas, wh.o executed the two notes mentioned in favor of Parker; and he also executed a mortgage on the engine and plows to secure these notes, which contained a clause that the property was unencumbered. Shortly afterwards Parker transferred the Nicholas notes and the mortgage to Woods, representing that the notes were well secured by a first mortgage when there was in existence a mortgage on the property given by Parker himself to secure an unpaid note of $500. At the instance of Parker, Grage, who was his son-in-law, obtained this $500 note, and later Parker as the agent of Grage foreclosed the first mortgage and absorbed the security which had been given to Woods. Woods began this action, basing it on the fraud and deceit of Parker, and named Nicholas, who was alleged to be insolvent, as a defendant in the case. Parker answered admitting the existence of the unpaid note of $500 and the prior mortgage which had been given to secure its payment, and he also alleged that Woods had turned over to him as part consideration for the notes an old worn-out automobile, representing it to be as good as a new one, and he therefore asked for judgment against Woods for the sum of $600. There is complaint that Woods was permitted to file an amended petition after the trial had been commenced, and also that the petition so amended failed to state'a cause of action for fraud and deceit. No error was committed in either respect. Amendments for the purpose of correcting mistakes of any kind in pleadings, which would be in furtherance of justice and would not substantially change the claims or defenses, should be liberally granted. (Civ. Code, § 140; Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732; Deter v. Jackson, 76 Kan. 568, 92 Pac. 546; Malone v. Jones, 91 Kan. 815, 139 Pac. 387; Wait v. McKibben, post.) . The amendment made by Woods only amplified the averments of his original petition, which itself stated a right of recovery on the ground of fraud. While Woods set out the notes which had been transferred to him by Parker indorsed as “without recourse,” it was further stated that he was induced to take them by the representations of Parker that they were well secured by a first mortgage upon the property, whereas the mortgage given by himself was a lien on the property, and that he had been instrumental in having his son-in-law obtain and foreclose that mortgage. Plaintiif alleged and offered testimony to show that the representations so fraudulently made were relied on by him, and also that the maker of the notes was insolvent. On behalf of Parker it was claimed that error was committed in instructing the jury as to the representations made by Woods relating to the condition of the automobile given by Woods in exchange for the notes and mortgage. Parker claimed that he was entitled to set off the price of new tires purchased by him to replace the worn ones that were on the machine when he got it and which he says were represented to be in good condition. The court adviséd the jury that if the plaintiff made false and fraudulent representations as to the condition of the automobile in certain respects, on which Parker relied, and that he did not and could not discover such condition by an examination made with reasonable care and diligence, he would be entitled to recover the damages sustained, but added that under the admitted facts of the case Woods was not liable for the new tires which Parker had placed on his machine. The exclusion from consideration of the new tires is the part of the instruction of which complaint is made. The ruling was based on the fact that Parker had made an examination of the tires before the sale and exchange was effected. It appeared that he not only examined but commented upon the fact that the tires were badly worn, and he noticed, too, that the rubber had been worn off so that the canvas was in sight. Woods was not a manufacturer nor a dealer in automobiles, and it appears that he did not have any expert knowledge respecting them. When the condition of the tires was mentioned Woods said, “Oh, pshaw, they are good for two thousand miles.” This was a mere puffing statement like those frequently made respecting the value of things offered for sale, which are generally regarded to be expressions of opinion and which of themselves do not constitute fraud. (85 Cyc. 71.) There was nothing approaching a warranty of the tires, nor were there any confidential relations between the parties, and as the information relating to the condition of the tires was available alike to both parties, and as the tires were actually inspected by Parker, it can not be said that he was defrauded in that respect. It is a general rule that if an article is sold for any and all purposes for which it is adapted, and not by a manufacturer or producer for a particular purpose, and is open to inspection by the buyer, the doctrine of caveat emptor applies. (Graffenstein v. Epstein & Co., 23 Kan. 443, 33 Am. Rep. 171; Lukens v. Freiund, 27 Kan. 664, 51 Am. Rep. 429; Safe and Lock Co. v. Huston, 55 Kan. 104, 39 Pac. 1035, 28 L. R. A. 53; Kinkel v. Winne, 67 Kan. 100, 72 Pac. 548, 62 L. R. A. 596; 2 Mechem on Sales, § 1311.) There are exceptions to this rule, but none of them is applicable to the facts in this case. . There was no good reason to complain of the rule relating to the measure of damages stated by the court. The jury were, in effect, told that if they found for Woods they should allow him such part of the notes and interest as was lost through the false and fraudulent representations of Parker. The notes would have been worth their face value if they had been fully secured as Parker represented them to be, but without the securities they were worthless, and hence the difference between the amount of the notes and any allowance made because of the defects in the automobile was the measure of Woods’ recovery. The judgment of the district court will be affirmed.	[ -16, 122, -8, -114, 10, 96, 40, 26, 120, -79, -89, 95, -85, 70, 28, 105, -10, 125, 117, 106, 101, -77, 23, -14, -46, -77, -13, -35, -75, 72, -12, 87, 12, 52, -54, 93, 102, 2, -59, 84, -50, 5, 57, -59, -39, 120, 52, 3, 112, 73, 113, -98, -61, 42, 28, 71, 40, 46, -21, 41, -48, -7, -70, -115, 111, 22, 50, 68, -116, 33, -56, 12, -112, -79, 0, -23, 115, -74, 87, -12, 37, -117, 8, 38, 98, 0, 117, -17, -8, -104, 46, 118, -97, -89, -76, 92, 11, 105, -74, -99, 120, 18, 7, 126, -26, 29, 29, -24, 3, -117, -106, -125, 15, 118, -100, 3, -1, -93, 36, 96, -52, -32, 93, 117, 25, -101, -123, -84 ]
The opinion of the court was delivered by Porter, J.: Plaintiffs were real-estate agents and brought this action to recover a commission for procuring an exchange of defendant’s stock of merchandise for farm property. The trial to a jury resulted in a verdict in favor of plaintiffs. The defendant appeals and complains that the trial court erred in excluding testimony and in refusing to instruct in reference to double agency. The answer precludes such a defense. If the defendant desired to raise the issue of illegality or fraud or that the contract was improper he should have affirmatively pleaded the matter as a defense. His answer was limited to a general denial, which permitted him to disapprove any material averments of the petition, but did not entitle him to prove any new matter constituting an affirmative defense. This rule is firmly established by former decisions and requires no additional comment. (Marley v. Smith, 4 Kan. 183; Clark v. Spencer, 14 Kan. 398; Davis v. McCrocklin, 34 Kan. 218, 8 Pac. 196; St. L., Ft. S. & W. Rid. Co. v. Grove, 39 Kan. 731, 18 Pac. 958; Paving Co. v. Botsford, 56 Kan. 532, 44 Pac. 3.) The defendant claims that in his statement of the case to the jury he set forth that one of the defenses was that the plaintiffs at the time of the trade were also the agents of the owner of the farm for the purpose of finding a purchaser. The abstract does not show what the opening statement was, but in any event counsel could not enlarge the issues by anything he said to the jury. It is contended also that plaintiffs’ evidence disclosed the double agency. Defendant was permitted to extend his cross-examination of one of the plaintiffs to matters not brought out in chief and .showed that the farm that was exchanged for the stock of goods was listed with the plaintiffs under an arrangement with the owner by which they were to receive 2l/a per cent commission for a cash sale. The plaintiffs “testified that they received no commission of any kind from the owner in this transaction, and it was not affirmatively shown that they were acting at the time as his agents or had authority from him to negotiate an exchange. The inference from the testimony brought out on cross-examination, and which was not within the issues as defined by the pleadings, is that “the farm was not listed with the plaintiffs for exchange. There was no affirmative showing of anything immoral on the part of the plaintiffs or anything in their conduct that the defendant might not have waived, or that he must not be held to have waived by his general denial. The various rulings of the court against the defendant in the progress of the trial were made upon the theory that the answer did not permit such a defense. No request or offer was made by the defendant to file an amended answer. The court rightly refused to instruct upon the question of dual agency, and the j udgment is affirmed.	[ 17, 110, -7, -83, -120, 96, 56, -6, 65, -32, 102, 83, 105, -34, 20, 61, -10, 109, 84, 104, 84, -78, 83, 42, -46, -45, -15, -51, -79, 79, -28, 94, 76, 48, -62, -43, -30, -62, -61, 26, -86, 1, -104, 68, -7, 64, 52, 43, 22, 75, 53, -114, -13, 32, 25, -53, 109, 46, 43, 125, -15, -72, 42, -113, 125, 7, 51, 36, -104, 1, -8, 78, -112, 49, 1, -56, 115, 54, -106, 116, 11, -119, 9, 38, 107, 34, 17, -17, 108, -108, 46, 95, -113, -89, -16, 88, 3, 9, -74, -98, 113, 32, 38, -4, -3, 29, 31, 108, 7, -81, -42, -94, 47, 118, -104, 11, -17, -121, -112, 112, -51, -94, 93, 71, 50, -101, -114, -124 ]
The opinion of the court was delivered by MASON, J.: C. A. Poinsett brought action against Marshall Field & Company, a corporation, alleging, in substance, that he had been employed by it for one year as a traveling salesman; that before the expiration of that time the company desired him to work in the house; that he refused to do so unless he should be allowed three dollars a day for expenses; that the company thereupon paid him one month’s salary in advance and discharged him. He asked judgment for the amount' of salary he would have drawn during the remainder of the year. The company filed an answer consisting only of a general denial. A judgment was rendered for the defendant and the plaintiff appeals. The jury were instructed that the plaintiff could not recover if he had accepted one month’s salary and his expenses to Kansas City in settlement of his claim, and quit the employ of the defendant. The plaintiff contends that this instruction was erroneous, because it presented the issue of accord and satisfaction, which is an affirmative defense, requiring to be specifically pleaded, and not provable under a general denial. The jury returned an affirmative answer to a question submitted by the plaintiff, asking whether he had accepted $153.77 and agreed to release the defendant from all further liability under his contract. The defendant maintains that the instruction complained of did not present an issue of payment, or of accord and satisfaction, but of the voluntary resignation of the plaintiff. Whatever the defense relied upon may be called, the present judgment ought not to be reversed on the ground that it was not within the issues presented by the pleadings, because at an earlier trial of the case, about six months before, precisely the same instructions were given. The plaintiff was necessarily advised at that time of the interpretation placed by the trial court on the pleadings, and can not have been taken by surprise in that regard at the second trial. If the interpretation was erroneous no prejudice could have resulted to the plaintiff, as he had full opportunity to meet the issues so presented. This consideration disposes also of objections made with regard to the admission of evidence on this issue and the rejection of an instruction concerning it, and also in relation to another instruction which it is contended enlarged the issues made by the pleadings. Objection is made to evidence regarding the custom of the company in retaining the right to place its salesmen at work in the house. It is argued that the plaintiff’s rights were to be determined by a definite contract, and were not to be affected by custom. There was a conflict as to the terms of the agreement, the company contending that it was the same as in the case of other salesmen. We think under the circumstances the evidence was competent. At all events, it could not have affected the judgment of the jury on the issue covered by the special finding referred to, which compelled a judgment for the defendant. Complaint is made of orders striking out certain evidence, but the excluded portions do not seem to have been vital, if competent. The judgment is affirmed.-	[ -80, -2, -4, -99, 26, 96, 42, 26, 28, 96, -89, 83, -23, -58, 12, 123, -13, 13, 80, 106, -33, -73, 21, -23, -46, -13, 89, -51, -75, 76, -11, 94, 76, 32, -54, -43, -26, 66, -63, -100, -50, 5, 40, -24, -7, -128, 48, 24, 52, 91, 49, -98, -13, 40, 29, -61, 45, 44, 123, 57, -16, -8, -118, -113, 127, 20, 51, 36, -98, 103, -40, 110, -104, 49, 8, -24, 114, -74, -58, 116, 33, -71, 8, 106, 99, 34, 49, -25, 92, -72, 38, -34, -113, -90, 52, 24, 11, 73, -76, -100, 48, 20, -121, 126, -6, 29, 29, 108, 11, -97, -42, -78, -113, 124, -98, -109, -17, -57, 16, 113, -49, -86, 92, 87, 120, -101, -116, -104 ]
The opinion of the court was delivered by Burch, J.: The plaintiff recovered damages in the sum of $500 for personal injuries received through the negligence of the defendant while working for it as a common laborer in the erection of a fence. The defendant appeals. The most meritorious assignments of error go to the amount of recovery and not to the right to recover. It is said the proof of the amount and value of time lost by the plaintiff was not sufficiently definite for the court to submit that element of damage to the jury. The plaintiff alleged that when he was injured he was earning $1.35 per day. While a general denial of the allegations of the petition was filed, the real contest was waged over other matters and, probably through mere inadvertence, the plaintiff was not asked to state his wages. The defendant knows what they were. There is no suggestion that they were less than stated, and the cause ought not to be remanded for a new trial simply to permit the plaintiff to swear to an undisputed amount. In describing the condition of his health before the injury the plaintiff said he worked in the harvest field on a header barge and in the oil fields for $2.50 per day ditching with pick and shovel. He then testified that he had not been able to perform heavy manual labor since his injury. Other testimony indicated that this meant work like he was doing before and at 'the time of his injury. He did, however, continue to work with the fence gang the remainder of the day on which he was injured and on the next day, and later he did chore work for a Mr. Kibbey for which he claimed compensation for forty-seven and one-half days. In view of the foregoing it can not be said that the jury had no data to compute damages for loss of time. Complaint is made that the court permitted the jury to consider impaired earning capacity, future pain, and permanent injury as elements off damage. The defendant combated every claim which the plaintiff made as to physical injury, its cause and its consequences. The jury have settled that controversy in the' plaintiff’s favor, and accepting his evidence as true, his earning capacity was impaired, his pain was not likely to cease at once, and he was not likely to be restored immediately to his former vigor. The size of the verdict shows that the jury did not go beyond the common knowledge of all men in estimating these factors of compensation. If the plaintiff was injured and did suffer the disabilities which he described, and these were the main questions, he was entitled to all he received. A physician called by the defendant examined the plaintiff shortly after his injury. He testified that upon such examination he found no evidence of any injury that would create any soreness or trouble in the bowels or liver. On cross-examination he was asked if he had not made a contrary declaration, and he testified that he did not tell the plaintiff shortly after the injury that the plaintiff had a bruised liver or injured bowels. The examination and cross-examination clearly related to the same occasion and it was not error to allow the plaintiff to testify in rebuttal that the physician did make such a statement at the time he examined the plaintiff. Besides this,'if the physician’s attention was not sufficiently attracted to the time, place, and circumstances of the claimed conversation by the question asked him on cross-examination he might have been .recalled by the defendant after the plaintiff had given his impeaching testimony, in order to make any de.sired explanation. An instruction on the ground of negligence, claimed to be erroneous, is immaterial .in view of the special findings of the jury that the plaintiff was not injured by the accidental stumbling of another employee, but was injured by another employee’s giving a hand car a sudden jerk, striking the plaintiff in the side. There being no tenable ground for granting a new trial of any issue except the amount of recovery the court feels constrained to affirm the judgment of the district court, and it is so ordered.	[ -48, 110, -103, -67, 25, 96, 42, 90, 97, -115, -90, 59, -19, -49, 5, 107, -13, -67, 84, 43, -34, 35, 23, -61, -6, -77, 115, -60, 57, 106, -28, -36, 77, 48, -62, -43, 102, 74, 69, 84, -114, -122, -117, -19, -39, 80, 56, 122, 84, 91, 49, -98, 107, 38, 24, -61, 13, 44, 75, 57, -47, -7, -118, 13, 79, 17, -127, 38, -100, 98, 90, 12, -104, 49, 1, -24, 114, -66, -126, 84, 35, -101, 12, 102, 99, 48, 21, 71, 120, -72, 15, -2, -113, -92, -111, 16, -117, 76, -74, -99, 122, 4, 38, 126, -7, 29, -35, 108, 3, -105, -42, -77, -49, 36, -100, -54, -29, -125, 21, 101, -50, -94, 92, 69, 114, -101, -97, -98 ]
The opinion of the court was delivered by Burch, J.: The action in the district court was one to reform a fire insurance policy to include an agreement permitting additional insurance and to recover on the reformed instrument. The plaintiff prevailed and the defendant appeals. Briefly summarized the facts are as follows: While the plaintiff was at work completing an unfinished dwelling house an agent of the defendant, named Castello, solicited him to insure it. The cost of the building when completed was estimated by Castello at from $1200 to $1300, and the plaintiff contemplated insuring it for $1000. He told Castello he had promised to give another insurance agent a chance to write a policy, and Castello asked for $500 of the insurance. The plaintiff said if he could do that it would allow the other fellow to write $500. Castello replied that when the house was completed the plaintiff could take out more insurance. Castello prepared an application, which the plaintiff signed without reading, and a policy for $500 was subsequently delivered and paid for. Later the plaintiff took out $500 additional insurance without notice to or permission from the defendant. The building burned, and when the plaintiff examined the policy issued by the defendant he found that it contained a condition forbidding additional insurance without written consent. The policy also contained a warranty that the property was not incumbered, and when the defendant’s answer came in it developed that the application contained a statement that the property was not mortgaged, although the plaintiff had not been interrogated on that subj ect and had made no such statement. The property was in fact covered by a mortage. After the fire a special agent of the defendant procured the plaintiff to sign an agreement to surrender the policy and to accept $100 in full settlement of his claim. The plaintiff did not surrender the policy, however, the defendant did not pay or offer to pay the $100, and further negotiations followed, resulting in a waiver and abandonment of the compromise agreement. The foregoing facts are embraced in the general verdict and a special finding of fact returned under instructions to the following effect: If it was the understanding of the plaintiff and the agent who took the application that the policy would permit the plaintiff to take out additional insurance, the policy was not avoided although it did not include a provision of that kind and additional insurance were taken out. If the agent of the defendant, upon his own motion and without the knowledge or authority of the plaintiff, wrote in the application an untruthful answer to the question “Is the land described mortgaged,” the policy was not avoided because the land was mortgaged. If the defendant waived the compromise agreement, gave the plaintiff to understand that it would not be insisted on, and conducted further negotiations with him looking toward settlement, the agreement was not binding. ■ • These instructions were manifestly correct and the plaintiff was clearly entitled to judgment so far as the merits of the case are concerned. What then are the reasons urged for a reversal? ’ It is said that the petition should have been made more definite and certain by expanding it to include allegations regarding particular matters upon which it was silent. The defendant understood the case made by the petition well enough, however, to answer in such a way that full advantage was taken of the omitted facts. It is said that the petition was demurrable in this: it did not use the word “promise” nor the word “agree” in connection with the statement of the defendant’s agent that the plaintiff could take out additional insurance, and it did not allege that permission to take out additional insurance was omitted from the policy through fraud or mistake. The petition did narrate the facts, however, just as they occurred, using substantially the language of the contracting parties, which, measured by the law, created an agreement. It is said that the reply departed from the petition, and it did. Not having in his possession the application showing the “warranty” that the property was not incumbered, and overlooking the condition of the policy against incumbrances, the plaintiff pleaded broadly in his petition compliance with all the terms of the policy. The answer disclosed a breach of the condition against incumbrances. The reply presented the facts showing that the warranty in the application was the voluntary work of the defendant’s agent, unauthorized by the plaintiff, and consequently that the condition of the policy was outside the contract consummated by the acceptance of the true application and payment of the premium. The reply was attacked by a motion to strike out, and there are decisions enough to the effect that failure to sustain it was fatal to the judgment. If the motion had been sustained the plaintiff would have been permitted to amend his pleadings in such a way as to remove the verbal inconsistency between the petition and the reply. The court very properly treated the matter as one of form and not of substance. The defendant was not misled nor prejudiced in the slightest particular or degree, and it has been a good while since this.court has reversed an apparently fair judgment rendered after a full trial on the merits because the reply departed from the petition. It is said that the parol-evidence rule prevented the plaintiff from proving the true terms of the application. The court has fully expressed itself on this subject in the case of Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245. It is said that the plaintiff’s evidence did not support the allegations of the reply, which is true. The facts constituting waiver of the compromise agreement were not pleaded as fully nor as accurately as they were proved, and the plaintiff in his pleading undertook to cast them in the mold of fraud. The defendant did not, however, observe the statute relating to variance (Civ. Code, § 134), and the court properly instructed on the case made by the proof without going through the formality of an amendment. The fact that the defendant so changed its attitude toward the compromise agreement as to lead the plaintiff to believe that it was abandoned and to change his course accordingly is sufficient to make the waiver effectual. The defendant’s brief is a model of fine discrimination, clear thinking, and logical reasoning, but granting, as we must, that the plaintiff’s evidence is true, it is much stronger in insistence on impeccable procedure than in reasons for refusing to pay this loss. The judgment of the district court is affirmed.	[ 112, 126, -40, -81, -120, 32, 58, -38, 122, -95, -90, -33, -3, -62, 20, 37, -10, 61, 68, 122, -41, -78, 23, 74, -2, -13, -79, -59, -71, 127, -4, 30, 72, 32, -126, 85, 102, -120, -59, -48, 78, -115, -118, -27, -39, 74, -80, 91, 80, 75, 53, -103, -13, 46, 17, -53, 77, 40, 91, -79, -15, -7, -86, -115, 127, 1, -127, 101, -100, 3, 120, 12, -112, 49, 0, -24, 115, -90, 6, 108, 111, -101, -119, 34, 103, 0, 113, -21, -24, -104, 39, -36, -81, -89, -46, 88, 40, 12, -67, -97, 116, 22, -121, 102, -9, 28, 29, 108, 23, -126, -106, -78, -49, 96, 25, -125, -18, 3, 35, 100, -49, -88, 92, 70, 123, -37, 30, -50 ]
The opinion of the -court was delivered by Smith, J. :• Prior to April 12, 1912, the appellant was the owner of 220 acres of land in Ottawa county, Kansas,'and the appellee was a real-estate agent doing business at Minneapolis in that county. In the fall of 1911 the appellant employed the appellee to find a purchaser for the land at $75 per acre and agreed to pay him five per cent on the first $1000 received and two and one-half per cent on the remainder. Grimes went to. see one-John Kline, who afterwards bought the land, about selling.the land to him. Kline lived about fourteen miles from Minneapolis, and near Ada. Grimes talked with Kline about the land and gave him the location of the land and the name of the owner, and the appellee went a second time to see Kline. Thereafter the appellant sold sixty acres of the land, leaving 160 acres. After this sale the appellee and the appellant met and had the following conversation, as appears by the evidence of the appellee and is not disputed: “Q. Repeat the conversation? A. I said to Mr. Emery T note you have sold a part of your land’ and he said ‘yes’ and now I says, T believe I can bring a man from north of Ada that can handle that land at this time, I think you have got it down to where he can handle it,’ and I said ‘Would you do any better than $75.00 an acre on this land?’ and he said ‘if you could sell this land right away, he would do some better than that’ and I told Mr. Emery that I would go right out and see the party within a day or two, as soon as I could get away, I told him if he thought we could make satisfactory terms, and he said he thought he could. “Q. Were the terms revised at that time? A. No. “Q. What, if anything, did you do after that with reference to that land? A. On the' 15th of February I went to see Mr. Kline and I saw him and told him that Mr. Emery had sold 60 acres of this land, leaving 160, and that Mr. Emery told me that if he could sell it right away, he would do a little bit better than $75.00 an acre, and I told Mr. Kline that I couldn’t give him the definite price, that the price that was given to me was $75.00 per acre, but I told him what Mr. Emery had said. “Q. What did you tell him? A. I told him that Mr. Emery had said that he would do a little bit better if he sold it .soon, and I told him that Mr. Emery had said that the terms would be made so that he could handle it. “Q. And what did Mr. Kline say? A. Mr. Kline told me that he w'as going to look at some land first before he did anything here. “Q. How far did this land lay from where Mr. Kline lived at that time? A. About 10 or 11 miles I think. “Q. Did you ever give Mr. Kline the description of this piece of property? A. No sir, nothing more than I told him where it was, I didn’t give the legal numbers. “Q. How many conversations did you have with Mr. Kline about this land between November and the following April when he bought? A. I think I was there on five different occasions that I talked to him about the place. “Q. And this last trip you say, was on the 15th of February? A. Yes sir, that was especially to see him. “A. I told Mr. Emery in the conversation about the 13th of February that I had a party I thought I could sell to, a young man north of Ada. “Q. You didn’t tell him who it was? A. No sir. “Q. You never did at any time tell him who your customer was? A. No sir, we don’t tell those things. “Q. And on the 13th you told him you thought you had a young man that would take his farm? A. Yes sir.” There seems to be no contradictions of this evidence except that the purchaser, Kline, testified that appellee was at his place twice, while Grimes says that he was at Kline’s place five different occasions, and talked with him about the place. Grimes also testified: “Q. You did n’t even get Kline to go and look at the farm ? A. I tried. “Q. Did you ever obtain his consent to go with you to the farm and look at it? . . . A. He promised me one time that he would come and look at the farm. “Q. Did he make a date when he would ever come and look at it? A. No sir, it was impossible to get a date with him because he was feeding cattle. “Q. Did you ever at any time take him over there and' show him the farm ? A. No sir. “Q. Did you ever get any contract from Mr. Kline of any kind by which he agreed to take this farm on any terms? A. No sir. “Q. Did you ever get any promise at any time that he would go and take it upon any terms? A. No sir, but he agreed to go and look at it. “Q. You don’t know at any time whether he was ever ready to purchase the farm at $75 an acre? A He had n’t seen it. “Q. You don’t know whether he was at any time ever ready to purchase it at any price, so far as you were concerned? A. I don’t suppose he was until he saw it.” Mr. Kline testified as follows: “Well the way I happened to go down to it, Mr. Sedilick of Ada had a farm over west three miles from the place I bought, and he told me to go and look at it, and one time in April I told him I was going over to see it and Mr. Sedilick came along and took me over there, and it did n’t suit me and we came back, we were on this side of the farm and inquired of Mr. Harris if he knew of any land for sale, and he said that he had some land for sale, and Mr. Sedilick, Mr. Harris and I drove over it and it did n’t suit me, and we took dinner with Mr. Harris, and then we came down to where Mr. Goff lives and we asked him if there was any land for sale that he knew of, and he told us about the Rolla Emery farm was for sale, so we came on down then at another place and inquired if that was for sale, so then we came down to look over the Rolla Emery place, and then we came down to see Mr. Emery, and that is the way I got down there. “I talked to Emery about place and he finally said he would take $11,200.00; I then went home and brought my wife down and again looked over farm, we then come to Minneapolis and closed deal.” The pffect of the instructions given in the case is that if the appellee was the procuring cause of Kline’s going to see the land and buying it of the owner that the appellee was entitled to recover his commission at the rate agreed upon, on the amount received by appellant for the land. The appellant contends that under the evidence in this case the appellee did not bring the seller and the purchaser together or institute a contract between them and hence did not earn any commission. Numerous authorities are cited, the language of which differs mainly upon what constitutes a bringing of the seller and purchaser together or the producing of a purchaser to the seller who is ready, willing and able to purchase the property upon the terms and at a price designated by the owner, but none of them so inconsistent with the general doctrine that where a broker is employed to sell real estate for a commission and by any means is the procuring cause of bringing the seller and a proposed buyer together and a sale is consummated, either with or without the assistance of the broker, the broker is entitled to his commission. In Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104, it was said: “It is sufficient to entitle a real-estate agent to recover his commission for the sale of land that he, under a contract with the owner thereof, has been the procuring cause of such sale. He need not have conducted it to a final and successful conclusion.” (Syl. ¶ 1.) It is contended by the appellant that under the facts of this case it was a question of law for the court to answer whether or not the broker was entitled to his commission, but we think the court correctly submitted the question to the jury as a question of fact whether the broker was or was not the producing cause of the sale. The contract between the appellant, as owner, and appellee, as broker, is not questioned, and it appears from the evidence that the broker then informed the owner that he believed he could sell the land to a man up near Ada, where, in fact, the purchaser resided; also that the broker soon thereafter went to see' the purchaser and at that time was unable to get him to go and see the land. Inferentially, it appears that the purchaser did not want to buy as large a tract as 220 acres, and the broker, being thereafter informed by the owner that he had sold 60 acres of land, returned to the purchaser and secured a promise from him to go and see the land, but at no time did the broker go with the purchaser to the land. The purchaser, however, had been given the name of the owner and the general location of the land although not the exact description by township and sectional divisions. An apparent reason for the broker’s not going with the purchaser to see the owner and inspect the, land was that the purchaser lived about eighteen miles from the broker’s place of business, and the land was ten or eleven miles in another direction. There is no evidence to indicate that the purchaser had known anything about or had heard of this land being for sale, except through the broker, until he was on the way there to see it after looking at two other tracts. It is also urged that the broker did not find a purchaser at the price, $12,000, at which he was authorized to sell the land but that the land was sold for $11,200. There is uncontradicted evidence, however, that the owner, after he had sold off the 60-acre tract, had informed the broker that he would make a reduction from the price of $75 per acre if the broker could sell it soon and that the broker so informed the purchaser. A reduction of $800 was made from the price at which the broker was first authorized to sell the land, and relatively that might not be considered a large reduction from the original price named. There is no evidence that the seller had employed any other agent or broker to sell the land and he was informed by the appellee that his prospective buyer lived near Ada, and at the time the buyer came to his place the seller did not inquire if he had been negotiating with the broker, Grimes, but asked if he had been sent there by any agent. To this the buyer said, “No.” There is little, if any, direct conflict in the evidence, but the evidence tends to prove two different states ■of facts; one that the purchaser learned that the land was for sale and went to look at it with a view of buying it by reason of the solicitation of appellee; .and the other that the buyer was out looking for land .and that through means other than the solicitation of this broker he learned that this land was for sale and went to the premises and bought it of the owner without reference to the broker. Under the first state of facts, the seller would be responsible to the broker for the commission; under the second, he would not. It was a question of fact fairly submitted to the jury, who found in favor of the broker upon sufficient evidence. Judgment was rendered accordingly, and it is affirmed. Porter, and Benson, JJ., dissenting.	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The opinion-of the court was delivered by Mason, J.: A rehearing was granted in this case because the court was impressed with the argument of counsel, especially with regard to the hardship which results, in some aspects, from the decision rendered. Upon full consideration, however, we adhere to the view that the judgment appealed from should be affirmed. We do not regard the representation that the furniture and fixtures were the property of the minors as an imposition on the probate court. No actual transfer of title had been made to them, but the ownership of A. C. Bangs, and his obligation on the mortgage, were only formal.. The mortgaged chattels were treated as going with the hotel property and belonging to the minors. If a. bill of sale had been made to them the actual situation would not have been very materially changed. The operation undertaken was a funding of the debt against the entire hotel property. It must be regarded in the light of conditions as they then appeared; not as they have subsequently developed. In that view it may well have.been considered expedient, if not absolutely necessary. We do not think there was a failure of jurisdiction even as to the $1800 item. Upon the other phase of the case, it was said in the original opinion that a guardian may in some circumstances be authorized to make a blanket mortgage upon real estate of which his wards are tenants in common. It has been suggested that the rule as so stated would not apply here, because the minors, being remainder-men only, and having no right of possession, are not covered by the term employed. The phrase “tenants in common” was used as a convenient one, whether technically correct or not, to express the relation of the members of a group, each of whom had an undivided interest in the property. The former decision is adhered to.	[ 114, -6, -35, -84, 90, 96, 42, -68, 99, -63, 39, 91, 43, -54, 16, 107, -9, 79, 113, 96, -34, -77, 6, 35, -46, -13, 115, -43, -80, -20, -26, 94, 72, 37, -62, -43, 102, -117, -47, 84, 14, 13, 24, -27, -7, 68, 52, 42, 28, 14, -43, -97, -77, 44, 25, -61, 40, 40, 73, -67, 80, -8, -118, 5, 75, 23, -109, 52, -56, -89, 104, 12, -108, 49, 0, -23, 115, -76, 4, 116, 39, -101, 41, 106, 98, 2, 65, -25, -8, -104, 47, -98, -67, -25, -105, 88, -119, 97, -73, -97, 124, 0, 46, 126, -17, -107, 31, 108, -97, -49, -42, -79, 13, 56, -104, -102, -50, -63, 48, 113, -52, -80, 92, -62, 50, -101, -114, -6 ]
The opinion of the court was delivered by West, J.: On rehearing it is earnestly insisted that the property insured was already encumbered, and that on this account upon principle and by the weight of authority the plain terms of the policy — standard form — relieve the company from liability. The ma jority of the court, however, are of the opinion that until the legislature shall prescribe the terms and effect of a policy, the insured who is asked and who answers nothing respecting encumbrances on the property, and who pays his money in the belief that he is procuring insurance, should not be held bound by the encumbrance clause. The former opinion will therefore remain unchanged.	[ -80, 120, -44, -99, 8, 96, 34, -40, 107, -92, 36, 83, 13, -62, 53, 113, -9, 123, -59, 34, -42, -89, 39, -61, -42, -45, -77, -57, 49, 95, -19, 127, 76, 35, -118, -43, 38, -54, -63, 24, -22, 9, 10, -51, -7, 104, 52, 75, 20, 75, 81, -99, 99, 38, 24, -61, 41, 40, 74, 49, -8, 120, -118, -121, 111, 20, -79, 36, 56, 99, -8, 12, -104, 17, 16, -24, 115, -90, -106, 116, 105, -101, 9, 98, 99, 16, 13, 110, -88, -72, 39, -54, 47, -124, -122, 88, -94, 2, -73, -99, 101, 0, -122, 126, -8, 84, 94, 100, 7, -125, -42, -77, -117, 110, 24, 66, -34, -61, 48, 81, -50, -86, 92, 65, 93, -105, -105, -56 ]
The opinion of the court was delivered by Johnston, C. J.: This was an action brought by the appellee, Laura B. Schribar, to set aside a deed to a tract of land which she had made to the appellant, John M. Maxwell, and which it was alleged he fraudulently obtained from her. She owned one hundred acres of land in Kansas, worth about $3500, and had given two mortgages thereon, one for $700 and another for $200. It was alleged that Maxwell induced her to convey to him, in exchange for a cash payment of $100, a stock of goods which he represented to be of the value of $1600, and the transfer to her of an interest he had in a certain tract of government land in Oklahoma. She averred that he deceived her as to the location of the Oklahoma land and as to his ownership or interest in it; that he procured her to make an entry on a tract other than the one shown to her. She also alleged that she was unacquainted with the value of merchandise, and that she accepted the goods relying on his representations as to their character and value, and that his representations were falsely made with the intention of cheating her. In her amended petition she tendered the appellant the $100 which he had paid to her, as well as the stock of goods received from, him,, and also a relinquishment of her rights in the government land on which he had led her to place a filing. Shortly after the transfer of the Lyon county land to him he mortgaged it to Robert Craig for $2000, and she alleged that it was executed without consideration, and therefore asked that it be decreed to be a nullity. In his answer he denied the charges of fraud and alleged that the land shown to her was that upon which the filing was made, and that she selected the goods out of a large stock on the basis of the invoice price of the same, in compliance with the contract which they had ma-de. He also alleged that he had assumed and paid a mortgage lien on the land of $749 and another of $205.35, and had also paid $19.91 of taxes, which was a lien on the land at the time it was transferred to him. The court found that the Craig mortgage was a valid and subsisting lien upon the land conveyed to appellant, and a decree of foreclosure was entered. The only question submitted to the jury was whether the appellant made the alleged false and fraudulent representations in respect to the goods and land given to appellee in exchange for the Lyon county land, and whether appellee believed and relied on these representations when the conveyance was executed. All other questions were reserved by the court for its own decision. In answer to special questions the jury found that appellant knowingly made false representations in respect to the Oklahoma land and the stock of goods, and that appellee relied oh these representations; that he had no interest in the Oklahoma land which he undertook to trade to her, and that it had no value; that she had no independent knowledge of merchandise, and that the merchandise which was turned in to her as of the value of $1600 was only worth one-fourth of that sum. The contention of the appellant that the testimony was insufficient to support the findings of the jury can not be sustained: There was testimony tending to prove that the representations were made to deceive the appellee, that they were untrue, and that appellee, relying on and believing them, conveyed her land to appellant. According to the findings, her land was worth about $3500, while all she received for it was the cash payment of $100 and property worth about $400. Complaint is made that a judgment canceling the conveyance was entered without requiring appellee to tender and turn back what she had received from ap pellant in exchange for the land. In the amended petition the appellee expressly tendered back all that appellant had given her in the proposed exchange. In her testimony given at the trial she stated that she was prepared to restore all that she had received, saying that the goods were still in her possession and in the same boxes in which they were packed and shipped to her. The record does not disclose what orders were made in respect to the tender or the restoration of the property which appellee had received, but it appears that appellant has secured the sum of $2000 by mortgaging appellee’s farm — an amount much in excess of the money and property received from appellant. Out of the $2000 which he obtained by mortgaging her land he paid the mortgage liens which she had givers upon the land and also a lien for taxes, all together amounting to about $1000, leaving in his hands an excess of $1000 to meet any order that the court may make in adjusting the foreclosure branch of this proceeding. That part of the case has not been brought up upon this appeal, but it may be assumed that the court will make an order in the final judgment adjusting the rights of all the parties and give proper credits to the appellant for the money and property received by appellee in the transaction. No error was committed in striking out the affidavits offered on the motion for a new trial. They were largely made up of scandalous matter relating to the moral character of appellee, which had no bearing upon the issues in the case and which the court rightly concluded were unfit to be upon the records of the court. Some of the matter in the affidavits was impeaching in character, but the general rule is that new trials are not granted on account of new evidence which only goes to the general reputation of a witness for truth and veracity or which merely discredits a witness or impeaches his character. (Parker v. Bates, 29 Kan. 597; The State v. Smith, 35 Kan. 618, 11 Pac. 908; Lee v. Bermingham, 39 Kan. 320, 18 Pac. 218; The State v. Stickney, 53 Kan.. 308, 36 Pac. 714, 42 Am. St. Rep. 284.) The judgment of the district court will be affirmed.	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The opinion of the court was delivered by Mason, J.: Upon the consideration of a petition for a rehearing the court adheres to the view already expressed. It is urged that a recovery against the defendant should have been denied because Preston Brothers, the original contractors, had not paid an occupation tax in conformity with the ordinance. The ordinance required the payment of a tax of $7.50 each six months by any one carrying on in the city of Kansas City, Kan., the occupation of “plumber or plumbing shop.” Preston Brothers were in business in Kansas City, Mo. We think this ordinance was not violated by their making a contract with the defendant to install the plumbing of his residence; nor would it have been violated at all if the plaintiff had paid his tax in due season. The violation of the ordinance resulted from the fact that the man who did the actual work was not authorized to carry on the occupation of a plumber. When his incapacity was cured by the action of the city council-it, in our view, rendered the contract enforceable. The disagreement between the defendant and the contractors as to the amount named in the writing is spoken of in the petition for a rehearing as a misunderstanding as to the contract price. We think in the circumstances stated the conduct of the defendant amounted to a repudiation of the actual contract — a denial of its execution — and brings the case within the rule that a renunciation of a contract amounts to its breach (9 Cyc. 635) ; and where by the conduct or statements of the defendant the plaintiff is justified in abandoning the contract a recovery may be had for the reasonable value of the labor and material furnished (20 Dec. Dig., Work and Labor, § 14 (2), p. 2285). The defendant makes an appeal for a new trial on the ground that a wrong decision was reached upon the facts, and that this result was brought about by perjured testimony. This court, however, can only consider the questions of law presented, the conflict in the evidence having been sharp and direct. The petition for a rehearing is denied.	[ -48, 106, -11, -18, -118, -64, 2, -98, 89, -95, 39, 127, -51, -102, 0, 106, -77, 125, 117, 121, -43, -77, 7, 11, -10, -13, -13, 84, -72, 79, -12, 77, 76, 52, 66, -107, 38, -54, -41, 92, -122, 5, 24, -59, -39, 64, 52, 74, 54, 10, 17, -116, -13, 40, 24, -53, 12, 44, 107, 57, -48, -15, -70, 5, 79, 5, -96, 54, -100, -57, 88, 14, -104, 25, 1, -24, 115, -76, -57, 124, 103, -117, 13, 106, 98, 2, 17, -17, -8, -8, 62, -98, -115, -89, -111, 88, 83, 109, -106, -97, 120, 22, 38, -4, -26, 21, -97, 108, 10, -113, -10, -77, -113, 36, -106, 0, -18, -127, 17, 116, -49, 36, 92, 67, 115, -97, -98, -8 ]
The opinion of the court was delivered by Burch, J.: The plaintiff was the holder of a certificate of purchase of the school land in controversy. An installment of the certificate was due on December 18, 1911, and under the statute failure to pay within ten months thereafter forfeited the plaintiff’s right to the land. The plaintiff had contracted to sell the land to another, and looking to a consummation of the transaction the certificate of purchase was deposited in a bank at Liberal. Not having the certificate before him and not remembering the precise date when the installment was due, the plaintiff in March, 1912, went to the office of the county treasurer for information, and was told by the treasurer that nothing would be due until fall. In August, 1912, the plaintiff again went to the.office of the county treasurer with money to pay the installment and for the purpose of doing so. He informed the treasurer of his intention and desire and offered to make the payment required by the certificate. After an investigation of the record in the county clerk’s office the treasurer told him nothing would be due for two or three months, and for this reason only a formal tender of cash was not made. Within the time indicated by the treasurer, but after October 18, the day the ten months’ grace expired, the plaintiff paid the installment. The receipt was duly signed by the county treasurer and countersigned by the county clerk. On October 19 the defendant settled on the land. In an action of ejectment the plaintiff recovered, and the defendant appeals. The plaintiff was prevented from making payment in time by the mistake of the county treasurer. The evidence does not disclose the cause of the mistake. It may .have arisen from the manner in which the record was kept. On the tria.1 of the case the treasurer testified that he examined the school-land record in the county clerk’s office, and with the book before him became of the opinion that nothing would be due for about two months. In any event the plaintiff was deceived by the misinformation given him by the agent of the state to receive his money. For public reasons the state itself could not be prejudiced or estopped to assert title because of the neglect or fault of its officer. It could, however, upon satisfaction of its just and equitable demands, waive the forfeiture even if it had been occasioned by the fault of the plaintiff, and a fortiori it could waive the forfeiture when not to do so would be to take advantage of a constructive fraud resulting from the act of its agent. When the state chooses to waive a forfeiture, even although it be one arising ipso facto upon failure to pay in time, third persons can not complain. (Baker v. Newland, 25 Kan. 25; Mayse v. Belt, 84 Kan. 211, 114 Pac. 232.) In the cases just cited the claims of third persons had not attached when the waiver occurred. In this case the defendant did not by his settlement acquire a vested right to the land as against the state. It could still dispose of the land to another without injury in law to him, and it still had power to do the conscionable thing by the plaintiff. Under the circumstances of this case it is held that the state could and did waive, as against the defendant, the forfeiture of the plaintiff’s certificate of purchase by the subsequent acceptance of his money according to the honest understanding of the treasurer and of the plaintiff, who relied on the treasurer’s advice, as to when the payment was due. The general finding for the plaintiff requires that the evidence be interpreted favorably to him. Some minor questions are presented for consideration, but the foregoing disposes of the merits of the controversy. The judgment of the district*court is affirmed.	[ -78, 124, -48, -68, -70, 96, 106, -102, 97, -95, 34, 83, -19, -62, 20, 125, -30, 109, 116, 120, 110, -78, 51, -63, -14, -13, -56, -43, 53, 109, -12, -41, 76, 48, -126, -43, -58, 74, -63, 80, -114, -122, 59, 68, -39, -56, 48, 121, 18, 13, 33, -49, -29, 39, 28, 67, 105, 40, 77, -71, -64, -16, -65, -123, 111, 6, -111, 55, -68, 3, -24, -82, -100, 113, -125, -24, 122, -90, -122, 84, 9, -103, 8, 102, 39, 49, 101, -1, -8, -104, 46, -70, 13, -90, -109, 88, 43, 44, -74, -99, 116, 80, -89, -2, -32, -124, 93, 108, 15, -118, -42, -109, -113, -28, -104, 3, -33, 35, 49, 96, -49, 102, 92, 103, 122, -101, -50, -11 ]
The opinion of the court was delivered by Johnston, C. J.: This was an action upon an attachment bond to recover the damages sustained by reason of an unlawful attachment. The appellant The Van Arsdale-Osbome Brokerage Company caused an attachment to be issued against the property of the appellee, H. C. Parish, having previously given an attachment bond in the sum of $200, signed by C. G. Ricker as surety. The appellee had previously advertised. a public sale of his personal property at his residence, and on the day of the sale, and when a part of those who attended the sale had assembled, the sheriff appeared with the order of attachment, which it is alleged was levied upon appellee’s property. Instead of taking manual possession of the property or removing it from appellee’s place the sheriff arranged with appellee that the following bond should be given: “State of Kansas, Woodson County, ss: “Whereas, Van Arsdale-Osborne Bro. Co., has commenced a civil action against H. C. Parish in the District Court within and for said county and state; and whereas, an order of attachment has been issued in said action, and the property of the said H. C. Parish has been attached, and is now bound therefor, which property the sheriff of said county now returns to the said H. C. Parish defendant, in said action. Now, we, the undersigned, residents of said county, bind ourselves, to said plaintiff, in the sum of two hundred and no-100 dollars (being double the appraised value of said property) that said property or its appraised value in money shall be forthcoming to answer the judgment of said court in said action.” This bond was signed by the appellee and another, was approved by the sheriff, and the sale proceeded; but there is testimony to the effect that the attachment proceedings became known to persons who attended the sale and others who contemplated attending it, with the result that the property was sold for much less than its value and what it would have sold for if the attachment proceedings had not been instituted. The trial resulted in a verdict in favor of appellee in the sum of $200, and special findings were made to the effect that the damages awarded consisted of $50 as attorneys’ fees in the attachment proceeding, $5 for the taking of depositions in that proceeding, and $145 for other injuries sustained which arose from the wrongful attachment. It is contended that there was no actual levy of the attachment and that consequently there can bé no recourse upon the attachment bond for any damages that may have resulted from the action of the sheriff. The return of the sheriff, which included the forthcoming bond executed by the appellee and accepted by the sheriff, and which was set forth in appellee’s petition and not denied by appellant, recited that appellee’s property was seized and held under the order of attachment, and that the property was returned to appellee when the bond was given. It is not necessary to a valid levy that the officer should even touch the property or make a manual seizure of it. It is enough if he assumes control of it and exercises dominion over it. (Throop v. Maiden, 52 Kan. 258, 34 Pac. 801; 4 Cyc. 591.) The sheriff, who was acting at the instance of the appellant, in effect, says that he assumed control over the property prior to the execution of the bond by appellee. The recitals show that dominion over the property was exercised by the officer acting in behalf of the attaching plaintiff, and it was acknowledged by the owner of the property.. Other questions-might arise if the rights of a bona fide purchaser or a subsequent attaching creditor were involved, but the only parties to this controversy are the appellant, who caused the attachment to be issued, and the appellee, who owned the attached property, and as between them there is little room for controversy. There was no verified denial of the facts relating to the attachment, which were stated in the return of the sheriff and in the bond, which were made a part of appellee’s petition; neither does it appear from the record that the question of the sufficiency of the bond was raised in the trial court. It can not be held, therefore, that the order of attachment was not levied. There is complaint of the allowance of attorneys’ fees and the item for taking depositions as damages. The expense incurred in defending against an attachment wrongfully sued out may be allowed as damages in an action brought upon the attachment bond. In Sanford v. Willetts, 29 Kan. 647, it was held that the expense incurred and the value of the time expended in obtaining a release of property wrongfully attached constitute actual damages which are recoverable. In Tyler v. Safford, 31 Kan. 608, 3 Pac. 333, it was ruled that attorneys’ fees necessarily paid to free property from an unlawful attachment might be allowed, that the employment of nonresident attorneys was permissible, and that their traveling expenses between their home and the place of trial was a proper element of damages. It is argued, however, that the $50 item for attorneys’ fees as well as the $5 item paid to obtain a deposition should not be allowed because they were not incurred in obtaining a dissolution of the order of attachment, but were rather used upon the trial of the main case in which the order was issued. No preliminary motion was made to dissolve the attachment, but the question of whether there was a debt which was justly due was tested on the final trial, and it was then determined that there was no indebtedness, and consequently an order was made vacating and setting aside the attachment. To obtain the attachment the appellant made an affidavit that it had a claim against the appellee for a certain amount which was justly due. In order to establish that there was no basis for this claim and that the appellee was not indebted to the appellant in any amount a trial of the merits was necessary. There might have been a preliminary motion to dissolve the attachment on the ground that the averments of the affidavit were not true and that there was no indebtedness, but the same proof would have been necessary on that motion as on the final trial that was had. Just such a trial as was had was necessary to get rid of the illegal attachment and to free the property from the apparent lien, and as the fees in question were expended in accomplishing this purpose they were proper elements of damages. As was said in Schwartzberg v. Bank, 84 Kan. 581, 115 Pac. 110: “The decision of the court in the attachment action, finding in favor of the plaintiff herein and dissolving the attachment, is conclusive proof that the attachment was unlawful. (Hoge v. Norton, 22 Kan. 874.) The plaintiff then had the right to proceed further and prove the nature of the wrongful acts and the extent of his damages therefrom.” (p. 585.) It is further contended that the allowances made because of depreciation in the price of the animals and articles disposed of at the sale which was interrupted by the attachment are not proper elements of damage. It appears that appellee had advertised a sale of his personal property. About the time for the sale to begin, and when a large number of persons had assembled to attend the sale, the sheriff appeared with his attachment order. A-bond was taken, as has been stated, under section 200 of the civil code, providing that the property or its value should be forthcoming to answer the judgment in the action. According to the testimony, the sale was delayed for a few hours, and the effect of the attachment became a subject of discussion among the bidders present, and there was a fear that something was wrong about the sale. The news of the attachment deterred at .least one man from going to the sale who desired to purchase some of the property that was offered at the sale. Considerable testimony was offered tending to show that the property, with the exception of one two items, brought much less than its value. Of course, property does not always sell for its value at .an auction sale, but the testimony is that there was an exceptional slump at this sale, and that horses, cows, hogs, hay, feed and implements worth about $1400 were sold for $800. It is contended that there was evidence tending to show á depreciation of $600, and there appears to be enough to justify the award of $145 made by the jury. The bond upon which the action was brought stipulated that appellee should be paid “all damages which he may sustain by reason of said attachment if it be wrongfully obtained.” The attachment was wrongfully obtained, and if the depreciation was the immediate result of the wrongful attachment the appellee was entitled to recover it. Here there was no loss of property nor any special injury to the property itself, but the contention is that the unlawful attachment not only interfered with the sale but threw doubt and discredit on it, so as to cause depreciation and loss. It is well settled that injury to the credit, reputation and business of a defendant in attachment is too remote and speculative to be recovered. (Doty v. Bank, 82 Kan. 406, 108 Pac. 804.) Here it is not an injury to the credit of the owner that is involved, but it is an injury which affected the property itself. It is not difficult to understand that the seizure of the property by attachment might raise a doubt in the minds of the purchasers as to the risk of buying, and that it would operate to depress the prices paid. If the property had been held by the sheriff for several days instead of several minutes the depreciation in the value of the property during the time it was held could have been recovered, and it would seem that the depreciation resulting from the seizure and holding of the animals and articles even for a short time can be regarded as the direct and proximate result of the wrongful attachment. It is not unreasonable to infer that the property could have been sold for its value if it had not been attached, as the testimony is that under normal conditions property is usually sold for its value at such sales in that community. As the loss appears to have resulted directly and proximately from the illegal seizure, it is, we think, a proper element of damages. (Nixon v. First State Bank, [Tex. Civ. App. 1910], 127 S. W. 882; 4 Cyc. 880.) The court is inclined to take a liberal view of the damages recoverable where property is wrongfully seized, and to allow for any depreciation or loss which is susceptible of measurement and is the immediate result of a wrongful attachment. In an attachment case it was held that a party whose property was wrongfully seized may recover not only the loss sustained but also the gains prevented by the wrongful act. A herd of cattle wrongfully attached were placed in an inferior pasture and were not given proper feed and care, with the result that they did not make the ordinary gains in weight and value, and it was held that the gains so prevented were open to measurement and might be recovered. (Hoge v. Norton, 22 Kan. 374.) Other cases in which the same liberal view was taken in regard to the allowances of damages are: Sanford v. Willetts, 29 Kan. 647; Brown v. Hadley, 43 Kan. 267, 23 Pac. 492; Enlow v. Hawkins, 71 Kan. 633, 81 Pac. 189, and Gas Co. v. Bailey, 77 Kan. 296, 94 Pac. 258. There were some objections to rulings made during the trial, but in none of them do we find any substantial error. The judgment of the district court will be affirmed.	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The opinion of the court was delivered by Burch, J.: In a petition for a rehearing it is said the court did not discuss in its opinion the overruling of the defendant’s plea in abatement, which stated, in substance, that no preliminary examination was had with respect to the particular offense charged in the information. The argument in support of the plea in abatement was substantially the same as that offered in support of the motion to quash the information — indefiniteness of the charge. This being true, the defendant having waived preliminary examination, and the subj ect having been adverted to in the decision in the case of The State v. Schmidt, ante, p. 457, 140 Pac. 843, it did not seem necessary to treat the plea in abatement separately. The complaint was filed before a justice of the peace on November 7, 1913, charging the defendant with selling intoxicating liquor on February 20, 1913. A warrant was issued on the day the complaint was filed, setting out the same charge. On November 13, 1913, the defendant waived preliminary examination and the justice of the peace made the usual finding relating to the commission of an offense and probable cause to believe the defendant guilty of committing it. On November 20, 1913, the information was filed, which set forth in the third count the offense specified in the warrant. On December 2, 1913, a motion to qiiash was filed and overruled. The grounds of the motion to quash, so far as it related to the third count, were the following: “(c) For the reason that the facts stated in said Information do not set out with sufficient certainty the name of the person to whom said alleged intoxicating liquor was sold or bartered or the name or kind of liquors so alleged to be sold or bartered. “(d) That said Third Count of said Information does not state facts sufficient to charge the defendant with the commission of any offense against the Laws of the State of Kansas.” Upon the overruling of the motion to quash, the plea in abatement was filed, which, so far as material, reads as follows: “The said defendant Mary V. King for her further plea in abatement in the above entitled cause shows and represents to this Hon. Court that upon the pretended preliminary hearing heretofore had herein that no evidence of any kind was offered upon said hearing and that said Justice of the Peace did not make any finding that any offense had been committed or that there was probable cause to find the defendant guilty of the offense attempted to be charged in the third count of the Information as particularly applicable to said third count and that this defendant is unable to ascertain either from the proceedings upon the preliminary hearing or from the Information filed herein upon what particular transaction she is intended to be charged in the Information as to the third count, or .upon what particular transaction she will be placed upon her trial thereunder.” A demurrer to the plea was sustained and the trial proceeded. The defendant was convicted under the third count of the information on proof of a sale made to one Walter Garvin on August 13, 1913, a date subsequent to that named in the information, but previous to the date of the complaint and warrant. The motion to quash was bad unless the ground stated in subdivision (c) was good. That ground was not good, because the statute specifically provides that it is not, necessary for the information to state the name of the person to whom the sale charged was made nor the kind of liquor sold. An information charging the offense of selling intoxicating liquor on a certain date is definite and certain with respect to the crime charged. The date is immaterial except to show that the statute of limitations has not run against the prosecution. The date is not descriptive of the offense and may be ignored in the proof. By stating that the offense consisted in selling intoxicating liquor the crime charged is discriminated from keeping a place where intoxicating liquors are sold, keeping a place where persons are permitted to resort for drinking purposes, keeping a club room, and various other offenses against the liquor law. Under the statute and the uniform decisions of the court that is sufficient, and the rule of pleading was not changed because the law of 1911 imposed a heavier penalty upon persistent offenders. The plea in abatement did nothing except- raise the same question as to the motion to quash. The objection was not that no preliminary examination had been tendered and that the defendant had not waived preliminary examination. The objection was not that the justice of the peace had not made the findings necessary to hold the defendant for trial. The record proved the contrary. ' The objection was that a particular transaction (of sale) had not been disclosed by the proceedings and hence that the defendant had not been held to answer respecting a particular transaction to which the preliminary examination was applicable. The defendant was bound to take notice from the warrant that she was charged with selling intoxicating liquor. It was not necessary that the warrant disclose any particular transaction of sale, and upon her waiving the introduction of evidence the justice of the peace was authorized to base .his findings on the "warrant and waiver without the specification of .any particular transaction. If the defendant had desired particular information she should not have waived preliminary examination. The state would then have been obliged to satisfy the justice of the peace that the offense of selling intoxicating liquor had been committed by evidence of some transaction or transactions, his findings would have been based on. the evidence, and the defendant would have had notice of what it disclosed. At the preliminary examination the conduct of the defendant for two years preceding the filing of the complaint and the issuing of the warrant was open to investigation. The charge in the warrant of selling intoxicating liquor on February 20, 1913, did not limit the state to that date because the date was not descriptive of the offense. When the defendant waived preliminary examination she left it open to the prosecutor when framing the information to charge the selling of intoxicating liquor at any time within the statute of limitations, and to prove the charge by evidence of a ■sale or sales occurring within the same time limit. Consequently the defendant suffered no prejudice because the offense of selling intoxicating liquors, charged in the information as of February 20, was established by proof of a sale to Walter Garvin on August 13. This matter, occurring after the plea in abatement was overruled, is not assigned as error, but it is referred to to carry the discussion to its proper conclusion. In the foregoing the court has announced no new doctrine. It has merely applied what are well-settled principles of law to the crime of selling intoxicating liquors under the new statute which aggravates the penalty for persistent violators. What the defendant seeks to do is to escape the established law that a charge of selling intoxicating liquor is sufficiently specific to apprise the defendant of the nature of the accusation. If the law is to be changed it must be by the legislature. The petition for a rehearing is denied.	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The opinion of the court was delivered by Dawson, J.: In a petition for a rehearing, the defendant contends that the act of 1915 (Laws 1915, ch. 14) which attempted to repeal the item appropriated for plaintiff in the act of 1913 (Laws 1913, ch. 61, item 106) was held invalid by the court on grounds argued by neither party. (Hicks v. Davis, ante, p. 312, 317, 318, syl, ¶¶ 5, 6, 154 Pac. 1030.) This is, true. Does this necessitate a rehearing? Can there be any doubt of the soundness of the proposition covered by paragraphs 5 and 6 of the syllabus and the corresponding portion of the opinion? We have no doubt that for fifty years the operative interpretation of section 16 of article 2 of the constitution has been as given in our first opinion. Witness the act on the subject of legislative apportionment (Gen. Stat. 1868, ch. 4) and later reenactments down to chapter 3 of the General Statutes of 1909 (§§ 321-334), where the numbered subsections are usually repeated verbatim. Note also the act authorizing the creation of corporations. (Gen. Stat. 1868, ch. 23, § 5.) How many times has that long section with numbered subsections been entirely rewritten by the Kansas legislature for the sole purpose of adding or taking out a single subsection or part thereof? See, also, chapter 91 of the Laws of 1897, relating to limitations, where the section with numbered subsections was entirely rewritten for the sole purpose of adding one additional numbered subsection. These illustrations could be multiplied indefinitely. It would have been easy for the legislature in these apportionment acts, in the act relative to corporations, in the act relating to limitations, and in all similar statutes, to have made sections of each of the numbered subsections. It did not choose to do so. The rhetorical arrangement is within the province of the legislature. So, too, in the act of 1913 (ch. 61) each of the numbered items appropriating money for various purposes might have been rhetorically arranged in separate sections of the act instead of being incorporated as sub-paragraphs of one section. It is purely a matter of literary diction. But it must be dealt with as written: “No law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.” (Const., art. 2, §16.) Instances are cited where this rigid rule in other states with constitutions not unlike our own has been softened away by sophistical refinements which we are not disposed to adopt and which we think would be mischievous to follow. But we do not need to go abroad for a precedent. In 1897 a compiler of the General Statutes of this state arbitrarily divided a long section of the prohibitory act into two convenient paragraphs and published them as such. The legislature afterwards amended one of the paragraphs arranged by this compiler. The amendment was one of much importance. On this subject the court said: “In the parliamentary practice of England, the United States, and all other countries where the science of legislation has been cultivated and developed, it is customary to divide legislative enactments into sections. (Town of Martinsville v. Frieze, 33 Ind. 507, 509.) By the constitution of this state the section is made the indivisible unit of the legislative fabric. To insure the diligent attention of the legislative mind, the reading of. a bill by sections at the time of final passage in no case can be dispensed with. (Const., art. 2, § 15.) To prevent members of the leg islature from practicing deception by the enactment of blind and confusing amendments, to prevent them from misleading themselves and the public as to changes in the law, and .to remove the difficulties and uncertainties accompanying extended examinations and comparisons of various acts to ascertain the true state of the statute law upon any subject (The People v. Mahoney, 13 Mich. 481), the constitutional provision quoted above was adopted by the people, making it necessary to embody in every amendatory act the entire section or sections amended and providing that the section or sections amended shall be repealed. This constitutional requirement is mandatory and invalidates all acts in contravention of its terms. (The State v. Guiney, 55 Kan. 532, 40 Pac. 926; In re Ashby, 60 Kan. 101, 55 Pac. 336; 26 A. & E. Encycl. of L. 709.)” (The State v. Carter, 74 Kan. 156, 162, 86 Pac. 138.) In the Indiana case, cited in The State v. Carter, supra, the syllabus reads: “Under section 21 of article 4 of the constitution of Indiana, a section of a statute can not be amended without setting forth and publishing at full length the whole section as amended, however long it may be, or into however many clauses it may be divided.” (Town of Martinsville v. Frieze, 38 Ind. 507.) In the opinion it was said: “It has been the custom, in modern times, in England, and the United States, and probably all other countries where the science of legislation has made any considerable progress, to divide legislative enactments into sections; and this was undoubtedly had in view when the constitution was adopted. The framers of that instrument intended that upon the amendment of a statute, nothing less than the whole section as amended should be set forth, having in view the custom of thus dividing statutes into sections. Were it to be held that because a section happened to be divided into different clauses, the requirements of the constitution might be dispensed with, and a clause substituted for a section in setting forth the amendment, the door would be opened to other evasions of the constitutional requirement.” (p. 509.) In Lehman v. McBride, 15 Ohio St, 573, it was said: “As we understand this clause of the constitution, it requires, in the case of an amendment of a section or sections of a prior statute, that the new act shall contain, not the section or sections which it proposes to amend, but the section or sections in full, as it purports to amend them. That is, it requires, not a recital of the old section, but a full statement, in terms, of the new one.” (p. 602.) ■In Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9, the syllabus reads: “The constitutional provision contained in the second section of the fourth article, declaring that ‘no law, nor any section of any law, shall be revised or amended by reference only to its title and number, but the law or section revised or amended shall itself be set forth at full length,’ not only prescribes a rule of legislative procedure, but renders null and void any law which does not conform to its requirements.” (Syl. ¶ 1.) The petition for a rehearing is denied.	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The opinion of the court was delivered by West, J.: This was an action to foreclose a tax lien for special sewer assessments. The land was adjudged subject to the lien, and the owners appeal. It was found that the special-assessments were ascertained and levied in 1903* and that no suit or action was instituted to set aside or in any way contest or enjoin the levy until the answer in this action was filed, more than eight years after such ascertainment and levy. The statute covering this case provides that— “No suit nor action of any kind shall be maintained in any court, to set aside or in any way contest or enjoin the levy . . . after the expiration of thirty days from the time the amount due ... is ascertained.” (Gen. Stat. 1909, § 994.) Authorities are cited to show that no right existed to assess the land in question because it could not be drained or benefited by the sewer, but under the rule now well established in this state it is too late to raise that question. (Rockwell v. Junction City, 92 Kan. 513, 141 Pac. 299; Rockwell v. Junction City, 93 Kan. 1, 142 Pac. 268; Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836; Arment v. Dodge City, ante, p. 94, 154 Pac. 219.) The judgment is affirmed.	[ -44, 106, -76, 94, -54, -64, 58, -103, 73, -74, -92, 91, -51, -62, 20, 125, -33, 121, 113, 122, 103, -90, 35, 75, -42, -13, -37, -51, -7, 93, 116, 71, 76, 49, 2, -107, 70, -29, 69, 90, 14, -121, -120, 77, -47, 64, 52, 75, 114, 79, 17, 28, -29, 43, 28, -31, 8, 40, -37, 45, 80, 112, -66, -123, 127, 4, 33, 5, -100, -61, -22, -118, -112, 21, 4, -24, 115, 38, -122, 118, 69, -39, 40, 102, 99, 18, 37, -21, -8, -104, 14, -41, -115, -122, -112, 88, 11, -81, -74, -97, 100, 0, -26, -2, -18, -123, 95, 108, 7, -114, -42, -13, -117, 52, -126, 3, -33, -93, 48, 113, -49, -26, 92, 99, 50, 27, -97, -36 ]
The opinion of thé court was-delivered by Marshall, J.: This was an action to reform a fire insurance policy and to recover thereon. The plaintiff recovered judgment; the defendant appealed. The policy was issued for $1000 on a stock of merchandise, consisting principally of wagons, buggies, plows and other implements usually kept for sale in hardware and implement houses; also kaffir corn, alfalfa and other seeds, automobiles, and all other goods, wares and merchandise not more hazardous, kept for sale by the insured while contained in a one-story, iron-clad, metal-roofed building and adjoining and communicating additions thereto, while occupied as a buggy and implement warehouse and for other purposes not more hazardous, situated on lot six of block two, in Burr Oak, Kan. The plaintiff was engaged in the hardware business. Its buildings were situated on lots six and seven of block two. The kaffir corn, alfalfa and other seeds kept for sale by the plaintiff were always kept in the building on lot seven. The plaintiff occupied several separate buildings situated on these lots. A fire destroyed the building and contents located on lot seven. The building on lot six extended about five feet over on lot seven. Neither the building on lot six nor the contents thereof was damaged. An automobile was burned. The plaintiff then owned but one. There were no seeds burned; but the other property burned fits the description set out in the policy. The defendant’s agent that issued the policy was acquainted with the plaintiff’s business, knew the location of the buildings, and knew that the kaffir corn, alfalfa and other seeds were kept and binned on lot seven. The plaintiff believed that the policy covered the property situated on lot seven. He did not read thé policy until after the fire. The insurance rate on the contents of the building situated on lot six was $1.21 per hundred, and on lot seven $1.46. The rate paid by the plaintiff was $1.21. The defendant contends that there was not sufficient evidence to justify the jury in finding that the policy was intended to cover the property situated on lot seven. The defendant objected to the introduction of certain evidence, demurred to the plaintiff’s evidence, and requested certain instructions, all based on the theory that the policy did not cover any property on lot seven. We have examined the evidence and are of the opinion that there wás sufficient to justify the court in submitting to the jury the question of whether or not the policy was intended to cover property situated on both lots six and seven. The jury returned a verdict in favor of the plaintiff. That verdict, under the evidence, is conclusive in this court. The judgment is affirmed.	[ -16, 126, -12, -115, 8, 96, 42, 90, 83, -95, -89, -45, -19, -61, -107, 39, -34, 25, -44, 106, -44, -93, 23, 74, -42, -69, -13, -59, -72, 123, 125, 86, 76, 36, -118, 87, -90, -56, -59, -44, -54, 13, 43, -31, -39, 104, -76, 123, 52, 67, 49, -113, -13, 40, 16, -61, 9, 44, -53, -71, -47, -7, -86, -113, 127, 23, 17, 36, -98, 5, -40, 46, -112, 49, 0, -24, 115, -90, -122, 100, 101, -119, 1, 102, 99, 17, 53, -18, -24, 8, 46, -37, 47, -26, -110, 24, 51, 13, -73, -99, 116, 20, 23, 120, -15, 21, 29, 108, 5, -125, -74, -13, -53, 112, -104, -117, -17, -109, -78, 117, -49, -86, 92, 69, 92, -5, -98, -35 ]
The opinion of the court was delivered by Mason, J.: The board of county commissioners of Ellis ■county undertook to incorporate a city of the third class by the .name of Victoria, making an order to that effect, under which an organization was effected. The state brought an action to have the proceedings set aside on various grounds. The district court held the incorporation to be valid, and the plaintiff appeals. The order undertaking to create the city is not open to attack for any mere irregularity or mistake of fact. (The State, ex rel., v. Holcomb, 95 Kan. 660, 149 Pac. 684.) This court is of the opinion that none of the defects pointed out are so serious as to amount to a want of jurisdiction. They will be briefly stated, together with the grounds upon which they are regarded as not being fatal. (1) The statute involved reads as follows: “Whenever a petition signed by a majority of the electors of any unincorporated town or village within the state shall be presented to the board of county commissioners of the county in which such town or village is situated, setting forth the metes and bounds of their village and commons, and stating as near as may be the number of the inhabitants of such town or village, and praying that such town or village may be incorporated as a city, with satisfactory proof that such petition has been published in full in some newspaper printed in the said town or village at least once a week for three consecutive weeks, and the said board of county commissioners shall be satisfied that a majority of the taxable inhabitants of such town or village are in favor of such incorporation, and that the prayer of the petitioners is reasonable, and that the number of the inhabitants of such town or village exceeds two hundred and does not exceed two thousand, such board of county commissioners may, at any regular session thereof, by order reciting the substance of such petition and the due publication thereof, and their finding that a majority of the taxable inhabitants of such town or village are in favor of such incorporation, and that the prayer of the petitioners is reasonable, and that the number of the inhabitants of such town or village is within the limits hereby required, declare such town or village incorporated as a city of the third class, by the name and style of ‘The city of-’ (naming same), and designating in such order the metes and bounds thereof.” (Gen. Stat. 1909, § 1511.) The petition asked for the incorporation in one municipality of the two towns of Herzog and Victoria, one on the north side of the Union Pacific railroad, the other on the south. It did not recite that the signers constituted a majority of the electors of these towns, and the commissioners’ record does not show an express finding to that effect, although it refers to the petition as showing'the fact. The statute does not require the petition to contain such a recital, so its omission to do so is un important. The commissioners are authorized to make an order of incorporation if they find certain enumerated facts, that with respect to the number of signers not being among them. The trial court found that the petition was sufficiently signed. The action of the commissioners implied such a finding on their part (Schade v. Theel, 45 Kan. 628, 26 Pac. 38),. and this implication was supported by the recital that the petition showed the fact. The failure of the record to show a spe- • cific and express finding on the subject does not invalidate the; proceedings. (2) The petition is required to state “as near as may be the number of inhabitants of such town or village” — that is, of the town or village the incorporation of which is sought. The plaintiff contends that this requirement was not met, because the allegation of the petition in that regard was that the combined population of such towns was about 800 inhabitants. The petition also stated that the towns and their additions had been platted, ánd the streets and alleys therein laid out and named, and the point sought to be made against the petition is that it must be interpreted to mean that the population of the platted territory was about 800, without giving any information whatever regarding the number of inhabitants of the unplatted tracts which were included within the boundaries of the proposed corporation. The reference to the plats was unnecessary, and was obviously intended as an argument in favor of the reasonableness of the request. We do not regard it as committing the petitioners to the theory that by the word “towns” in the clause relating to the population they meant solely the territory that had been platted. The petition in this respect follows the phraseology of the statute, which speaks of the number of inhabitants of the “town or village,”' plainly meaning of the territory, including such town or village, the incorporation of which is desired. The statute recognizes that the boundaries of the town or village are not precisely defined, and requires the petitioners to -set forth “the metes and bounds of their village and commons.” The requirement that the petition shall be signed by a majority of the electors of the town or village plainly means that the signers shall constitute a majority of the electors of the territory de scribed by metes and bounds, the phrase “the town or village” being used as a convenient expression to convey that idea. The words are used in the same sense in the petition, and the subsequent reference to the platting of the towns and additions does not alter their meaning. (3) The description of the territory comprising the proposed city, as given in the petition, is criticized as not complying with the statute for want of a statement of its “metes and bounds.” Some of the tracts to be included are described by metes and bounds, and others as the original towns of Herzog and Victoria and certain enumerated additions. The reference here is obviously to the recorded plats. The descriptions are readily intelligible and entirely definite. This constitutes a substantial compliance with the statute. It is not necessary that the description shall be literally by metes and bounds— that is, by describing the boundary line by course and distance. (The State, ex rel., v. Young, 61 Mo. App. 494; State v. Bay City, 65 Ore. 124, 131 Pac. 1038; Duquesne Borough, 147 Pa. St. 58, 23 Atl. 339; Beecher v. Parmele et al,, 9 Vt. 352; Williams v. Willard, 23 Vt. 369.) (4) The description is also criticized as indefinite in several particulars. In one instance a course is given as “northwesterly” without indicating the angle. The fair inference is that what was intended was a line prolonging that of a lot at the corner of which it started. A change of direction to a “northeasterly” course presumptively contemplates a right angle, and this interpretation gives a connected boundary. A point in the boundary is described as the intersection of an east-and-west public highway with the north side of the railroad right of way, running northeast and southwest, without indicating whether the north or south side of the road was intended. The ambiguity is not sufficiently serious to vitiate the proceedings. The line of “First Street” is used as a boundary, without other identification. It is sufficiently obvious that First street in Victoria was intended. (5) The petition was presented at the regular meeting of the county board in April, 1913. It was acted on at adjourned sessions of that meeting, without orders having been made continuing the consideration of this particular matter to any specified time. The requirement that action should be taken at a regular session was not violated. By virtue of the statute county warrants may not be issued at an adjourned meeting (Gen. Stat. 1909, § 2104), but in other respects it is a part of the session at which the adjournment was taken (7 Words & Phrases, p. 6039; Sawyer v. Bryson, 10 Kan. 199). It was not necessary that the time when the consideration of the incorporation matter would be resumed should have been stated. (People v. Town of Linden, 107 Cal. 94, 40 Pac. 115; Wayne Borough Incorporation, 12 Pa. Super. Ct. 363, 368.) (6) A “journal entry” of the proceedings prepared by the county attorney was adopted by the board in May and made of record. It recited that on April 19, 1913, the petition had been considered, and that the board had then decided to grant it, and had instructed the surveyor to make a survey, and the county attorney to prepare a journal entry for submission. It also recited the making of the formal order on May 31, the details of which were stated. The plaintiff treats the matter as two separate attempts at incorporation, and contends that the first was void because not complete, and the second because it did not recite the substance of the petition. We regard what was done on the two days as parts of the same order of incorporation. The record of the proceedings of April 19 is to be deemed a part of the order, and this recites the substance of the petition. At that session it was decided that the petition should be granted, and on May 31 the details and form of the order were determined. (7) The boundaries of the city as stated in the order of incorporation do not correspond exactly with those set out in the petition. Some tracts included in the petition were excluded in the order. Of this no complaint is made. Some tracts not a part of the territory described in the petition were included in the order of incorporation, and this is strongly objected to. “The boundaries of the corporation, as established by the board, would not necessarily be identical with those stated in the petition. The statute contemplates that the order shall show what the petitioners prayed for and what the board granted.” (The State v. Bilby, 60 Kan. 130, 133, 55 Pac. 843. See, also, People v. Town of Loyalton, 147 Cal. 774, 82 Pac. 620; Tullytown Borough, 11 Pa. Co. Ct. 97; Morris v. Taylor, 70 W. Va. 618, 74 S. E. 872.) A chief pur pose of requiring the petition to be published is doubtless in order that persons living within the territory described may be advised of the pendency of the matter in order that they may be heard upon it if they should so desire. It may be that the policy of the statute forbids bringing into the'city nonresidents of the territory described in the petition. Here, however, the new territory included no property on which persons were living, and therefore its inclusion in the city did not alter the number or personnel of inhabitants whose interests might be affected. Most of the added tracts were streets or parts of streets, or strips of ground corresponding to streets, that had not been included in the territory described in the petition. Changes such as these were no more objectionable than the dropping out of tracts that had been covered by the petition. One considerable addition was made by enlarging an included tract, which was 900 feet long and some 780 feet wide, by adding 115 feet to its width. This was done “to avoid running the city boundary through buildings of some of the occupants of the tract.” It “did not add any new tracts nor new occupants, but simply took more of certain strips or tracts which were already included in the petition.” These changes did not affect the validity of the order. (8) The plaintiff contends that the order of incorporation includes another tract than those already referred to, which was not within the boundaries as described in the petition. This contention is based on the circumstance that two blocks of the original plat of Victoria (the one in the northeast corner and that just south of it) together with the streets east and north of them, and between them, and alleys in them, had been vacated by an order of the commissioners made in 1905. The petition in describing the territory proposed to be incorporated included as one tract “The Original Town of Victoria, as the same is platted and on file and of record in the office of the Register of Deeds.” The boundary line of the city, as defined by the order of incorporation, enclosed the territory covered by the original plat of Victoria, including the two blocks referred to. The argument is that by reason ■ of the order of vacation the description employed in the petition did not include these blocks. We think the natural interpretation of the language of the petition is that it was intended to refer to the territory which had been covered by the original plat of the town of Victoria. The term “original plat” is that ordinarily used to distinguish the first plat of a town from the subsequent additions, and “original town” is employed in the same way. The vacation of the two blocks and a part of the adjoining streets eliminated a part of the block lines and made one “acre tract” of what had been two blocks separated by a street, but made no other change. The property still lay within the lines of the original plat. It could properly and appropriately be described as an unnumbered lot, block or parcel of ground, of stated dimensions, lying in the northeast corner of the original town. If the two blocks had been in the interior of the plat a reference to the “original town” could hardly be supposed to exclude them. They happened to be outside blocks, but we do not regard this circumstance as justifying reading the description as though it read “The original town of Victoria, not including any blocks or streets that have been vacated.” (9) The length of one line of the boundary, lying nearly north and south along the outside of an addition, was stated in the order of incorporation as 1803 feet. This was an obvious mistake, as the end of the addition named was reached at about 1503 feet. That this was the point intended as the end of the line is indicated by the fact that the boundary (as shown both in the petition and order) there makes a jog of thirteen feet to the east, and that the next calls are then made consistent instead of impossible. The next line is described as running north to the north “side or line” of Delaware street. Delaware street does not extend quite so far east, but the reference is plainly to the north line of the street extended to the point of intersection. In other instances streets are spoken of at places to which they do not reach. The meaning is not obscure, and the description must be held to apply to the positions the streets designated would occupy 'if extended. The terms “northwesterly” and “northeasterly” are used without indicating the angle; but this is sufficiently indicated by the directions of the lot and block lines at the point in question. The tracing of the boundary having reached the north line of the railroad right of way, the next call reads “Thence south Four Hundred (400) feet to the south line of said right- of-way.” Literally pursued this call is impossible, for the other side of the right of way could not be reached by going 400 feet directly south. And if it followed the direction specified the boundary line would fail to connect with other monuments designated. But if the language is taken to mean that the line is to run in a southeasterly direction, at right angles to the railroad, the difficulty in tracing the boundary is overcome. That this is what was intended appears from the fact that as the right of way is but 400 feet wide, the only direction in which its south side could be reached in 400 feet is that suggested. The boundary line was sufficiently indicated throughout, for the usual rules of interpretation are sufficient to clear up the obscurities and reconcile inconsistencies. (4 R. C. L. 110.) On July 6, 1913, the commissioners directed the county clerk to enter upon the journal an order for the purpose of correcting some of the irregularities already referred to.' As we find the original record sufficient the effect of the subsequent order need not be considered. , The judgment is affirmed. Dawson, J., not sitting.	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The opinion of the court was delivered by Mason, J.: A mutual hail insurance company employed a soliciting agent, who gave a bond signed by a surety company, to protect his employer against all pecuniary loss directly sustained by larceny or embezzlement on his part. The insurance company sued the bonding company, alleging that the agent had collected in its behalf $288.18 more than he’had remitted, and asking judgment for that amount. A trial resulted in a verdict against the plaintiff, and a judgment was rendered accordingly, from which it appeals. (1) The written application of the insurance company for the bond included these questions and answers, among others: “Is he [the agent] now in debt to you? No. If so, state amount and nature of such indebtedness. No.” At the time the company had advanced to the agent fifty dollars to enable him to pay his way until returns from the business should begin to come in, he to repay it out of his share of the proceeds ; and this amount was charged against him on the books of the company. The defendant maintained that the answer to the first question quoted was untrue and that it was thereby relieved from liability. The court instructed the jury in effect that if the answer was false and had been made in bad faith the bond could not be enforced, owing to certain of its provisions not necessary now to be stated. The plaintiff complains of the instruction on the ground that under the circumstances shown the fifty dollars advanced to the agent did not constitute a debt, and that there was no evidence of any bad faith in the answer that was made. We think the evidence justified allowing the jury to determine whether or not the fifty-dollar transaction was of such a character that it should have been mentioned in answer to the question, and whether or not under all the circumstances the failure to mention it proceeded from a want of good faith. Upon the whole record, as will appear from what is hereinafter said, it seems very unlikely that the verdict was affected by this matter. (2) Among other defenses the defendant presented the claim that in making a statement to it of the amount of the agent’s alleged shortage it had wilfully suppressed the fact that the amount charged against him included the sum of $440, advanced to him by the plaintiff. In a separate defense the same allegation is repeated, except that the money is said to have been advanced by the plaintiff’s secretary. The plaintiff contends that the defenses were inconsistent, and complains of the refusal of the court to require the defendant to elect between them, and of the admission of evidence with regard to the advancing of money by the secretary. There is a conflict of authority as to how far inconsistent defenses may be united in an answer. (Fetzer v. Williams, 80 Kan. 554, 103 Pac. 77.) Whatever inconsistency there may be in the two defenses referred to is not obj ectionable. The defendant, instead of pleading in one count that the money was advanced by either the company or its secretary, presented one theory in one count and the other in another. The effect was much the same. The facts lay peculiarly within the knowledge of the plaintiff, and it was in no way prejudiced by the denial of its motion to require the defendant to elect. (3) The court in its charge referred to the question whether the agent was guilty of embezzlement as one of the issues. Complaint is made of this on the ground that it tended to confuse the jury and create the impression that the agent was on trial. The bond undertook to indemnify the plaintiff only against losses occasioned by larceny or embezzlement. The issue referred to was therefore in the ■ case, and it does not appear to have been so presented as to be the occasion of any prejudice. (4) The jury were told that the burden of proof was on the plaintiff to prove its right to recover by a preponderance of the evidence. This is objected to apparently on the ground that as to some of the specific issues the burden was on the defendant. The instruction given was true as a general statement. If a more specific direction had been asked a different question would be presented. Criticism is made of the verification of the answer. It seems sufficient, but no reason is suggested why any verification was necessary. (5) The evidence showed that the insurance company from time to time advanced to its agent different sums, amounting in all to $440, which were charged against him on the books. His arrangement with the company was that he should cover a definite territory, soliciting business, writing insurance and collecting premiums. He was authorized to retain twenty per cent from each premium collected, from which he was to pay all his expenses, including the charges of subagents, the residue to be his compensation for his services. As the agent made reports of business done he was charged with the premiums collected (less his twenty per cent deduction) and as he made remittances they were credited to him on the general- balance, being applied to his indebtedness arising from the advancements made to him, as well as to the charges for premiums collected. The plaintiff claimed this practice to have been authorized by the agent, under his agreement with the company, but the jury specifically found to the contrary. The plaintiff also contended that the agent had assigned his share of the premiums collected, to secure the payment of the money advanced him, and this issue was submitted to the -jury in such a way that their general verdict must be deemed to include a finding against the contention. The remittances of the agent amounted to more than eighty per cent of the premiums collected, and he was made to appear in default in that respect only by applying to his indebtedness, growing out of the sums advanced to him, a part of the amounts he remitted. The plaintiff invokes the rule that the creditor may determine what application shall be made of payments by a debtor who omits to give any directions in that regard. That principle does not apply here, because the surety company had not guaranteed the payment of the agent’s debts. It merely had undertaken to indemnify his employer against loss by his larceny or embezzlement. The bond specifically provided that the surety should not be liable “for any loans or advances made by the employer to the employee for any purpose.” We approve the view of the trial court that so long as the agent remitted to the company eighty per cent of each premium collected, no liability arose under the bond. His failure-to repay the advances made, out of his share of the premiums, was a mere breach of contract. The bonding company guaranteed only his observance of the criminal law,not the civil. The effect given to a mistake made by a witness, while testifying to the contents of a record he was then examining, has led to an apparent controversy concerning the fact in that regard. The matter had no important bearing on the decision of the case. Whatever misunderstanding existed was obviously due to inadvertance, and has been cleared up. The judgment is affirmed.	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The opinion of the court was delivered by West, • J.: This appeal involves the validity of a chattel mortgage, a question ably briefed and presented, but the pleasant duty of considering and determining this question is obviated by the somewhat unpleasant obligation resting upon us to dismiss the appeal. The journal entry recites that the judgment was rendered April 17, 1914. A motion for new trial was filed within three days but was not passed upon until November 14, 1914. November 19, 1914, the notice of appeal was served, and aside from caption and signature was in the following language: “Notice is hereby given that Charles S. Eagle appeals to the Supreme Court from the judgment and decision of this court, entered herein about April 17, 1914, on the interplea of Charles S. Eagle, in so far as said judgment and decision holds the chattel mortgage of said Charles S. Eagle to be invalid.” It will be observed that this notice was served more than seven months after the date of the rendition of the judgment. When the motion for a new trial was decided the time for appeal from the original • judgment had already expired. Hence it was necessary in order to present a matter of which we would have jurisdiction to appeal from the order denying the motion for a new trial. This was not done. The notice limited the appeal to the original judgment, or to such part thereof as upheld the validity of the mortgage. It is urged that the plaintiff should not be heard on his motion' or suggestion in his brief that the appeal be dismissed for the reason that he should have called the attention of the court to the matter in proper time and by proper motion under rule 10, but the statute leaves this court without jurisdiction unless the appeal be taken within six months from the rendition of the judgment or order appealed from. (Laws 1913, ch. 241, § 1.) This jurisdiction is vested by statute only, and no estoppel, laches or informality of a party can confer it. Neither does failure to raise the question relieve us of the duty to decline, even of our own motion, the exercise of jurisdiction which we do not possess. (Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385; Hodgden v. Comm’rs of Ellsworth Co., 10 Kan. 637; Toof v. Cragun, 53 Kan. 139, 35 Pac. 1103; Zinkeisen v. Lewis, 71 Kan. 837, 80 Pac. 44; Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539; Hawkins v. Brown, 78 Kan. 284, syl. ¶ 1, 97 Pac. 479; Trader v. School District, 86 Kan. 878, 122 Pac. 895; Nuhfer v. Flanagan, 87 Kan. 420, 124 Pac. 418.) The appeal is dismissed.	[ -16, -24, -43, -66, 10, 96, -94, -104, 72, -95, -89, 83, 41, -62, 20, 105, -14, 41, 117, 106, -44, -77, 54, -56, -46, -78, -111, -35, -75, -4, -27, 127, 12, 32, -54, -107, 70, -56, -63, 28, -114, 5, 40, -51, -47, 24, 48, 123, 16, 74, 49, 95, -29, 46, 28, -61, -88, 40, -39, -67, -112, -8, -101, -123, 127, 18, 51, 23, -56, -27, 104, -84, -104, 17, 3, -23, 112, -90, -122, 124, 103, -103, 8, 62, 102, 17, 77, -17, -8, -104, 14, -34, -99, -90, -110, 80, -118, 33, -66, -101, 125, 0, 7, 126, -26, -115, 28, -20, 15, -114, -42, -77, -113, 124, -102, -62, -9, -125, 32, 113, -116, 90, 94, 86, 59, 59, -114, -76 ]
The opinion of the court was delivered by Burch, J.: The action was one by a principal against his agent for damages for false representations which induced an exchange of real estate. The plaintiff recovered and the defendant appeals. The plaintiff was the owner of a tract of land in Gray county consisting of 1084 acres. This land was worth $14,000, and was subject to a mortgage which, with accrued interest, amounted to about $7500. The defendant effected a trade of the Gray county land for all but ten acres of the Kilworth ranch situated near the city of Lawrence. The Kilworth ranch consisted of 842 acres, well improved and well arranged and adapted for ranch purposes. It embraced sufficient bottom °land to carry the stock, timber enough to support the ranch, pasture land and hay land. Between 200 and 300 acres were in cultivation and 20 acres in alfalfa. There were three sets of improvements on the ranch. There were three well-built frame dwelling houses, having respectively five, six and seven rooms, two of the houses having porches. There were one granary, 16 x 20 feet, with sheds attached, another granary about ten feet square, a corncrib holding 1200 bushels of corn, with a grinding machine, and another small corncrib. There were sheds for hogs at three different places, one for 500 head, one for 50 head, and one for 30 head. There were sheds for 600 head of goats, and a cow shed with a place for hay, 20 x 40 feet. There were six chicken houses and a cement dipping tank. There were three barns, one 30 x 40 feet, shedded all around by cow sheds and stanchions, one 28x40 feet for horses, implements and hay, and one 42 x 84 feet, three stories high. The large barn was modern in every respect, containing a hay carrier, a litter carrier, a feed carrier, pitless scales, feed chutes of various kinds, box stalls, bins for various kinds of grain, an inside crib holding 1000 bushels of corn, and room for 500 tons of hay. There was a gravity system of waterworks watering sixteen different places on the ranch, irrigating a garden and supplying the large barn and the dipping tank. There were about 300 acres under hog-tight fence. There was no cash market for the plaintiff’s land or for the ranch. In negotations between the plaintiff’s agent and Kilworth’s agent, the plaintiff’s land was priced at $30 per acre and the ranch was priced at $85 per acre. The plaintiff and the defendant went to Lawrence and inspected the ranch. The plaintiff was a farmer with twenty-two years’ experience in farming in Illinois and Missouri. He had handled stock, was familiar with the kind of land which composed the ranch, and he spent four hours’ time in making a fairly complete inspection of the ranch, except the timbered portion which was rough and poor land. At first Kilworth asked $45,000 and the Gray county land for the ranch. By the defendant’s effort the price above the Gray county land was reduced to $40,000, .and the trade was closed on that basis. Kilworth gave the plaintiff a deed for 160 acres, worth $8000, and a contract for the remainder of the ranch, which allowed the plaintiff twenty years time in which to pay the $40,000. The plaintiff gave the defendant a mortgage on the deeded part of the ranch to secure his commission, which was computed on the basis of $1.50 per acre for the plaintiff’s land, and one-half the reduction which the plaintiff secured in the price of the ranch, a total of $4366. After concluding the negotiations, the plaintiff returned to his home, explained to his family the terms of the trade, and his wife signed the necessary papers understanding what had been done. When the plaintiff was at the ranch Kilworth inquired respecting the plaintiff’s ability to handle it. The plaintiff said he had a married son and a son-in-law who, with the plaintiff’s family, which included unmarried sons, could occupy the three sets of improvements, and that he could command something like $4000 to be used in providing stock, teams, and implements. Before the trade was finally consummated Kilworth went to Gray county and inspected the plaintiff’s land. The plaintiff secured permission to remain on his own land until March 1, following the trade, and he never returned to the ranch he had purchased. A few months after receiving his contract he traded it off for a farm in Iowa which did not belong to the man with whom he traded. The defendant’s employment was in writing. The contract was dated February 28, 1912, covered a variety of subjects, provided for a commission of $1.50 per acre in case of an exchange, and contained the following provision: “It is understood that M. D. Gonder is a real estate broker and that in all cases of exchange the owner shall decide for himself and act upon his own judgment in making the exchange and that Gonder may receive and collect a commission from both parties to the exchange.” After the defendant had! secured terms on the Kilworth ranch, and on April 24, the day he and the plaintiff started for Lawrence, a further contract was made providing that if the exchange with Kilworth were effected the plaintiff should receive for his services $1.50 per acre for the plaintiff’s land and one-half the sum saved should a reduction in the price of the ranch be obtained. This contract also provided how the defendant’s commission should be secured. The petition rested the defendant’s employment on the contract of February 28 and treated the contract of April 24 as providing for additional compensation. It was alleged that the plaintiff’s land was worth $30 per acre while the Kilworth ranch was worth only $35 per acre, although represented to be worth $85 per acre, and that the plaintiff agreed to the exchange because of the false representations of the defendant. The prayer was for actual damages resulting from squandering the Gray county land, for punitive damages, and for re covery of the commission paid the defendant. The false representations charged were of two classes: representations relating to the value of the Kilworth ranch and representations which prevented the plaintiff from exercising his own judgment and led him to trust the defendant implicitly and to rely entirely upon the defendant. Representations of the first class were that the Kilworth ranch was priced to the defendant at $85 per acre and that it was worth that sum; that after a pretended interview with Kilworth the defendant represented he had secured a reduction in price to $77 per acre; and that the plaintiff was getting a good deal for the ranch at' that price. Representations of the second class were that if the. defendant were allowed to do all the talking he could get a reduction in price; that if the plaintiff talked with the tenants on the ranch about buying it or about the value of it they would get mad and leave; that if the defendant were allowed to do all the talking he would make a good deal for the plaintiff; that the defendant was going to make the best deal possible for the plaintiff; and that the plaintiff should trust the defendant’s judgment. The general verdict, by specific recitals, allowed the plaintiff no damages except the commission which the plaintiff had paid. The following special findings of fact were returned: “1. Did plaintiff inspect the land and express himself as being satisfied with the quality and price before he signed the papers? Answer. Yes. “2. Did plaintiff consent for the defendant to price his land in the trade at a price in excess of its real value? Answer. Yes. “3. Did plaintiff express the opinion that the land he traded off was not worth $10.00 per acre, after he had made the trade? Answer. No. “4. Did Hemphill, as agent for Kilworth, price the land to Gonder at the price of $75,000.00? Answer. Yes. “5. What was the reasonable cash value of the 160 acres of land Kilworth conveyed to Subke free of incumbrance? Answer. $8000.00. “6. Do you find that Gonder was guilty of any fraud that requires him to forfeit his commission? Answer. Yes. “7. If you answer the last question, ‘yes,’ state what such fraud was. Answer. Misrepresentation of facts concerning the value of Douglas County lands. “8. What was the fair cash value of the Gray County land at the time of the trade? Answer. $14,000.00. “9. Did Subke price his Gray County land in the trade at $30.00 per acre? Answer. He did. “10. Did Kilworth, at first upon the day when all the parties inspected the land, ask $45,000.00 for his land above the equity of Subke in his Gray County land? Answer. Yes.” The subject of damages resulting from the difference between the actual value of the Kilworth ranch and its represented value, or the difference in value between the plaintiff's land and the Kilworth ranch, is entirely eliminated by the verdict, which expressly limited recovery to the commission paid the defendant. The subject of false representations made to establish a special relation of trust and confidence between the plaintiff and the defendant and to induce the plaintiff to surrender his own judgment and place himself at the mercy of the defendant is eliminated by findings numbered 6 and 7. There is left for consideration unfaithfulness of the defendant in bringing. about the trade, which unfaithfulness consisted solely in misrepresenting facts concerning the value of the Kilworth ranch. The alleged misrepresentations relating to the value of the ranch have been stated. The jury found the ranch was priced to the defendant at $75,000, or more than $85 per acre, and that subject is eliminated. On the date of the trade Kilworth asked $45,000 for the ranch above the plaintiff’s equity in the Gray county land. This price was reduced to $40,000. The plaintiff priced his land at a trading value of $80 per acre, which price he authorized the defendant to use and which he knew was more than his land was worth. On the basis of $30 per acre, the plaintiff’s equity in the Gray county land was $25,020. There were 842 acres in the Kilworth ranch. Before signing the contract Kilworth expressed regret at giving up a little fenced tract of ten acres on which stood a long cabin which he and his wife occupied for outings. The plaintiff áaid that Kilworth might keep the cabin, and the enclosed tract on which it stood was excepted from the contract. The price for the ranch was, therefore, $77.22 per acre and because prices and values were understood to be and were in fact trading prices and values the defendant’s representation that he had secured a reduction in price to $77 per acre was substantially true. The statement that the plaintiff was getting a good deal on the ranch at $77 per acre was confirmed by the verdict of' the jury, which allowed no damages for financial loss occasioned by the exchange. There remains as the sole basis of the verdict and judgment the statement that the Kilworth ranch was worth $85 per acre, the plaintiff having testified that while he and the defendant were on the train going to Lawrence to inspect the ranch the defendant said it was worth $85 per acre. Ordinarily a statement of this kind is purely a matter of opinion which is not to be accepted and relied on as a statement of fact. There is no absolute standard by which to determine the value of a ranch like the Kilworth ranch. The elements to be considered are so numerous and so varied that landowners and real-estate men, acting according to their best judgment, would likely differ greatly in their estimates of value, as indeed they did' in this instance. Purchasers understand that the best foot will be put forward and that high and even extravagant values will likely be placed on property offered to them, and so are not deceived. (Graffenstein v. Epstein & Co., 23 Kan. 443; Burns v. Mahannah, 39 Kan. 87, 17 Pac. 319; Speed v. Hollingsworth, 54 Kan. 436, 441, 38 Pac. 496; Elerick v. Reid, 54 Kan. 579, 38 Pac. 814; Sowers v. Parker, 59 Kan. 12, 51 Pac. 888; Else v. Freeman, 72 Kan. 666, 83 Pac. 409; Circle v. Potter, 83 Kan. 363, 369, 111 Pac. 479; Herrald v. Paris, 89 Kan. 131, 132, 130 Pac. 684; Woods v. Nicholas, 92 Kan. 258, 261, 140 Pac. 862; Ross v. Cox, 93 Kan. 338, 144 Pac. 227.) Speaking generally, the relation between principal and agent is confidential. Its essence is fidelity, and whenever the principal has the right to receive the agent’s opinion it must be an opinion fairly justified by the facts. In such cases a statement of opinion is regarded in the light of a statement of fact, and a charge of false representation may be predicated on a false and unwarranted statement of value the same as upon a false statement regarding topography, the character of improvements, the amount of rent received, and the like. In the present case the contract of employment constituted the defendant a mere broker to bring the plaintiff and Kilworth together, and expressly imposed upon the plaintiff the duty to decide for himself and act upon his own judgment. Of course an agent may not contract for exemption from liability for a breach of duty, but he may insist upon a clear delimitation of his duty, and it is not against public policy to require a principal to rely upon his own investigation and judgment. “Attention to business and prudence in making contracts are of no small importance; inquiry before is vastly better than inquiry after. A disposition, after entering into a contract which proves unfavorable, to search for some means of getting out of it, is unfortunate; it encourages misconstruction of statements, misrecollection of words, and willful falsehood. A party who finds on inquiry that he can not avoid his contract, except by proof of misrepresentations by the other party, is under fully as strong temptation to impute such misrepresentations, as a party seeking a contract is to make them.” (Graffenstein v. Epstein & Co., 23 Kan. 443, 446.) When a principal has expressly undertaken to act upon his own judgment, his agent, who is an intermediary only, may well understand that he is responsible for the truth of all facts which he may state for his principal’s information; but he is not apprised that he guarantees the literal acuracy of an estimate of value, which can be nothing more than an opinion, and an opinion upon a matter concerning which the best informed will likely differ widely. . If an agent on the ground value property for his principal who resides at a distance and is not familiar with conditions, he understands that responsibility is rested upon him to decide the question of value and he accepts the responsibility. But the contract of employment under consideration imposed no duty upon the defendant to determine the value of the Kilworth ranch and state the result to the plaintiff as a basis upon which the plaintiff might rest his decision to trade or not to trade. It is suggested in the brief that the contract of February 28 was superseded by the contract of April 24. The theory of the petition, however, was that the contract of April 24 was merely supplemental, and indeed it modified nothing contained in the earlier contract except the amount of compensation, and added a provision relating to the manner in which compensation should be secured. The petition undertook to present a change of the relation created by the contract by showing that the defendant subsequently prevented the plaintiff from exercising his own judgment and caused the plaintiff to relinquish his own judgment, but the jury were not impressed with the proof. There is no charge in the petition and no evidence that after the contracts were executed the plaintiff undertook to impose upon the defendant the responsibility of deciding and reporting what the market value of the Kilworth ranch was, and the clear effect of the evidence was that the defendant’s estimate of value was not given or received as an estimate of cash market value but as a comparative estimate for trading purposes. The plaintiff proceeded to Lawrence and inspected the property offered him after hearing the defendant’s statement of its value. The plaintiff testified that nobody prevented him from going anywhere he desired to go or from seeing anything he wished to see. The jury found that he did inspect the land and that before the papers were signed he expressed himself as satisfied not merely with the price but with the quality, concerning which the defendant made no false statements or representations. The plaintiff voluntarily gave back to Kilworth ten acres of the ranch. The defendant’s statement that the ranch was worth $85 per acre probably did not control the plaintiff’s judgment. However this may be, it was a mere expression of opinion and not a statement of fact, and, under all the circumstances, did not belong in the category of those opinions upon which a charge of false representation may be based. Since the defendant’s liability must rest upon findings numbered 6 and 7, and since they are insufficient to sustain liability, the plaintiff failed to establish the cause of action stated in the petition and the judgment should have been for the defendant. It appears that an execution has been issued on the judgment and a sale of property has been made to the plaintiff, who has not paid even the costs. This sale should be set aside. The judgment of the district court is reversed and the cause is remanded with direction to set aside the sale referred to and render judgment for the defendant. ■	[ -15, 110, -111, 45, 26, 96, 58, -72, 73, -87, 118, 83, -51, -38, 5, 113, -26, -115, 69, 105, 69, -77, 23, -95, -46, -5, -61, -35, -67, 77, -26, -41, 73, 16, -54, 21, -26, -96, 67, 92, -114, 7, 11, 108, -39, 64, 60, 123, 54, 74, 37, 47, -13, 46, 61, 67, 41, 44, 107, 41, -111, -15, 42, -122, 93, 2, 0, 66, -86, 3, -40, 106, -112, 53, -128, -24, -5, -90, -106, 116, 3, -103, 13, 38, 102, 43, 77, -49, 104, 24, 15, 127, -113, -90, -128, 88, 2, 32, -66, -99, 112, 16, 7, 126, -21, 13, 28, 104, -89, -113, -106, -93, -113, 48, -104, 15, -13, -89, 51, 97, -49, -94, 77, 71, 112, -101, -113, -4 ]
The opinion of the court was delivered by Dawson, J.: The plaintiff recovered judgment against the Rock Island Railway Company for $104.20 as damages to hi& pasture, fencing, cow shed and barn caused by a fire alleged to have been set out by defendant’s engine. It was shown that the only railway engine which by any possibility could have caused the fire within the- time of its occurrence, between 12:30 and 2 p. m., was the one which passed about 1 p. m. The jury made the following findings of fact: “1. Did the said fire start at a point off the defendant’s right-of-way? Answer. Yes. “2. What time of the day did the said fire occur? Answer. 12:30 to 2:00 p. m. (Central time). “3. How far from the defendant’s track did the said fire start? Answer. About 150 feet. “4. What time did the last train pass over the defendant’s track prior to the discovery of the fire? Answer. Near 1 p. m. (Central time). “5. Was such engine, at the time the fire was alleged to have escaped, handled in a competent, careful and skillful manner? Answer. Apparently it was. “6. Was such engine of an approved pattern and an approved construction? Answer. Yes. • “7. Was such engine supplied with approved appliances to prevent the escape of sparks? Answer. Apparently.it was. “8. Was such engine examined with reference to its appliances to prevent the escape of sparks immediately before it started out on its trip upoh which the fire is alleged to have escaped? Answer. Apparently it was. “9. Upon the special examination, in what condition was the engine found? Answer. Good condition. “10. If you find that the defendant was negligent in any particular which directly contributed to the plaintiff’s damage, state fully and in detail in what such negligence consisted, and give the names of the employes who were negligent. Answer. No negligence shown.” The special findings acquit the defendant of negligence. Section 294 of the civil code (Laws 1913, ch. 239) provides: “When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.” So say all the decisions of this court for the last forty years, beginning with Nichols v. Weaver, 7 Kan. 373, decided in 1871, down to Martin v. City of Columbus, 96 Kan. 803, 153 Pac. 518, decided in 1915. But it is urged that defendant’s motion for judgment on the special findings and motion for a new trial were not filed within three days as the code requires. Where does this leave the appeal ? All matters which should be presented on a motion for new trial are eliminated from our consideration on appeal. Does the same effect follow the failure to move in time for judgment on the special findings? It seems not. A motion for judgment, whether on the pleadings, special findings, default or admissions of the opposing party, or otherwise, is- but a convenient and appropriate method of seeking to bring, a lawsuit summarily to a close. It need not be formal. Unless it is a motion where notice is required it need not be in writing. (Civ. Code, §§ 556, 558.) “Probably a written motion for judgment on the findings is not essential. When inconsistent with the general verdict they control, and it .is the duty of the court, with or without formal application, to give judgment accordingly. Civil Code, § 288.” (Railroad Co. v. Holland, 58 Kan. 317, 319, 49 Pac. 71. See, also, Clement v. Hartzell, 60 Kan. 317, 321, 56 Pac. 504.) Moreover, the appellant is entitled to a review of the questions of law involved, and we are bound to hold that-the special findings of fact settled by the jury entitled the appellant and not the appellee to judgment. In Comm’rs of Wyandotte Co. v. Arnold, 49 Kan. 279, 30 Pac. 486, it was said: “The supreme court will review the form and substance of a final judgment and correct all substantial errors therein, whether the judgment has been excepted to in any form or not. “If, upon the trial, the court, at the request of the parties, states in writing the conclusions of fact separately from the conclusions of law, and the conclusions of fact are inconsistent with the conclusions of law and the judgment rendered thereon, the supreme court may direct judgment upon the conclusions of fact found, although no exceptions are taken to the conclusions of law. The conclusions of fact control, and judgment must be given accordingly.” (Syl.‘ ¶¶1, 2.) In Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 Pac. 718, it was said: “When, however, all questions as to the facts have been eliminated, this court is in as good a position to determine issues of law upon a written statement of facts as any trial court can be, and no necessity exists for the trial court to again pass on the identical .questions of law arising in the case. This view of the law has been steadily adhered to by this court in very numerous decisions. (Osborne v. Young, 28 Kan. 769; Horn v. Newton City Bank, 32 Kan. 518; Lender v. Caldwell, 4 Kan. 339; Coburn v. Weed, 12 Kan. 182; Holcomb v. Dowell, 15 Kan. 379; St. L. & S. F. Rly. Co. v. Shoemaker, 38 Kan. 723; Stettauer v. Carney, 20 Kan. 474; Stapleton v. Orr, 43 Kan. 170; Windmill Co. v. Buchanan, 46 Kan. 314; Comm’rs of Wyandotte Co. v. Arnold, 49 Kan. 279.) This conclusion in no manner conflicts with the cases of Nesbitt v. Hines, 17 Kan. 316; City of Atchison v. Byrnes, 22 Kan. 65, or Lucas v. Sturr, 21 Kan. 480. We still adhere to the rule that, in order to review any errors of law occurring at the trial of an issue of fact, a motion for a new trial must be duly filed and considered by the trial court.” (p. 50.) The railroad’s liability in this case was grounded on the statutory presumption of its negligence. (Gen. Stat. 1909, § 7079.) If there was any positive evidence offered by the plaintiff it was. disbelieved by the jury. (Finding No. 10.) The railroad company met and overcame the statutory presumption by its proof. This necessitates a reversal of the judgment with instructions to enter judgment for the appellant on the jury’s special findings of fact.	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The opinion of the court was delivered by Johnston, C. J.: The Capital City Vitrified Brick & Paving Company brought this action against The Concordia Lumber Company to recover the sum of $362.50, the contract price for a shipment of 40,000 building arid 1500 pressed brick ordered by the defendant company and shipped, according to directions, to Hollis, Kan., where they were intended to be used. The defendant refused to accept and use the brick, upon the ground that those furnished as building brick were unfit for use and not the kind of brick that it had purchased, and the 1500 pressed brick were so mixed with the other brick that it was impracticable to separate and use them. A counterclaim of twenty dollars was presented in the answer by defendant to pay the loss resulting from plaintiff’s breach of contract. The trial resulted in a judgment for defendant, and upon this appeal the plaintiff'insists that error was committed in admitting testimony, in refusing to submit certain interrogatories that were requested, and in the giving and refusing of instructions. To review these rulings a consideration of the evidence and the proceedings of the trial court is essential. It appears that only a part of the oral evidence has been transcribed, and the defendant insists that he is unable to test plaintiff’s abstract by the transcript or make a counter-abstract that will correctly present the errors assigned. It is conceded that the transcript is not complete, and the defendant asserts that vital and considerable parts of the evidence and proceedings have been omitted. It does'not appear that there was any obstacle in the way of the plaintiff’s obtaining a complete transcript. Whether the rulings in admitting testimony, in the submission of special questions, or in instructing the jury, were material can only be determined from an examination of the evidence. The record does not contain a stipulation that all matters material for the disposition of the errors assigned are included in the record, nor is there any agreement of counsel that the evidence is complete on any particular issue. In Typewriter Co. v. Andreson, 85 Kan. 867, 118 Pac. 879, it was said: “The code prescribes how a record of evidence and proceedings may be preserved for use on appeal, and it is the duty of an appellant who asks a consideration of the evidence or proceedings to make them a part of the record before filing his abstract. (Baker v. Readicker, 84 Kan. 489, 115 Pac. 112.) Without a certified transcript or an agreement of parties as to what evidence was offered and received the court can not consider its sufficiency or other questions arising on it.” (p. 868.) In Readicker v. Denning, 86 Kan. 79, 119 Pac. 583, it was held that a record of the evidence is made by filing the stenographer’s transcript and the burden of doing this devolves upon the appellant, and that to obtain a review of questions depending upon the evidence, the appellant must “procure and cause to be filed an official transcript of all the evidence introduced, except as the necessity therefor may be avoided by agreement of counsel, or by a statement in the transcript that it contains all the evidence on a particular matter.” (p. 80.) The same rule was applied in Davidson v. Timmons, 88 Kan. 553, 129 Pac. 133, where it was said: “In the absence of a transcript this court can not settle conflicting claims as to the proceedings in the trial court nor determine whether rulings referred to in the findings of that court on such proceedings may not have been controlled by evidence, admissions or waivers not preserved in the record.” (p. 557.) In the recent case of McGuire v. Davis, 95 Kan. 486, 148 Pac. 755, the question was again considered and it was said: “The appellant was privileged to omit from her abstract any evidence regarded by her as not pertinent to the questions presented. But it was incumbent upon her to have all the oral testimony preserved in a transcript, in order to provide an authentic source to which 'the appellee might go for whatever additional evidence he wished to bring before the court in a counter-abstract.” (p. 491.) It may be said that if it were agreed that the testimony in the record included all that is pertinent to any question presented in the appeal, the decision must have been that the finding of the jury determined that the brick furnished were not of the particular kind that were purchased. If those furnished were not the kind contracted for, defendant was not obliged to accept them even if they were of greater value than those purchased. It appears that none of the other objections is material, but the state of the record is such that we are not warranted in entering upon their consideration. Nothing being open to review here, the appeal is dismissed.	[ -80, 122, -20, -115, 27, 98, 58, -38, 65, -127, -90, 83, -19, -58, 12, 107, -66, 93, -44, 106, 71, -77, 7, -37, -42, -13, 115, -107, -79, 122, -12, 92, 76, 36, -54, -59, 98, -54, 69, 92, -50, -123, -72, -49, -13, 96, 52, 58, 52, 15, 113, -98, -13, 40, 25, -57, 107, 40, 107, 41, -47, -16, -78, 13, 77, 20, -79, 54, -100, 5, -40, 46, -120, 49, -128, -24, 115, -74, -122, -12, 107, -71, 8, 102, 99, 33, 29, -25, 124, -104, 39, -66, 29, -90, -110, 8, 75, 105, -74, -35, 116, 18, 47, -6, -17, 21, 29, 108, 11, -113, -14, -79, 15, 124, -102, 67, -17, -128, -112, 113, -115, -32, 92, 87, 18, -101, -98, -73 ]
The opinion of the court was delivered by West, J.: The plaintiff appeals from a judgment denying his right to certain proceeds of a policy issued by the Modern Woodmen of America. From the amended petition and the opening statement it appears that R. G. Brown, in 1898, wrote •to his uncle, A. B. Brown requesting financial assistance. From that time up to 1902 he received such aid to the amount of $803.53, when, calling for further aid, he agreed in order to secure past and future advances to take out a $3000 policy, making his wife a beneficiary to the extent of $500, and his uncle, A. B. Brown to the amount of $2500, the uncle agreeing to take such policy as collateral security and to keep up the premiums and assessments. The policy was issued, received and retained by A. B. Brown, and he, by April, 1905, had paid out by way of advancements, premiums and assessments $1486.56. At this time the plaintiff, R. H. Brown, son of A. B. Brown, went with his father to see R. G. Brown, and the latter was advised that A. B. Brown could no longer carry out the contract, he being then 77 years of age and out of employment. It was agreed orally that the policy should be sold and assigned to R. H. Brown for $1486.56, which he was to pay his father, he to continue the assessments and premiums and to advance such sums to R. G. Brown as he could for the latter’s support and maintenance, R. G. Brown agreeing to secure him for his interest and for all future advancements by having the policy canceled and a new one issued making the wife of R. H. Brown beneficiary for $500 and R. H. Brown for $2500. In pursuance of this agreement R. G. Brown indorsed on the policy a request to cancel it and to issue a new one as already indicated, acknowledging such request before a notary public and delivering it to A. B. Brown to take to some camp clerk, A. B. Brown agreeing to pay the necessary fifty cents to have the change made. R. H. Brown paid to his father the advancements made by him, and also advanced to R. G. Brown, before his death in 1913, $620, making in all $3025.56 paid by him. The policy was never delivered to the Modern Woodmen. A. B. Brown instead of turning it into some head camp went on a journey, and upon his return gave it to the plaintiff in a sealed envelope which was not opened until after his death. The plaintiff brought this suit to recover on the policy, the issues were made up, trial was begun, a jury impaneled and an opening statement made for the plaintiff, whereupon a motion for judgment on the statement and pleadings was made and sustained. The society paid the money into court and was discharged, the contest over the $2500 being between the plaintiff and two sons of R. G. Brown. The by-laws provided that for a member in good standing to change beneficiaries he was required to pay to the camp clerk a fee of fifty cents and deliver his certificate with the surrender clause on the back thereof duly filled out and executed by him, designating therein the desired change, such execution to be in the presence of and attested by the camp clerk or by some person authorized by law to administer oaths and take acknowledgments. No change was to be effective until the old certificate had been delivered to the head clerk and a new one issued during the lifetime of the member. The by-law in force im 1905 provided that no change in the designation of beneficiaries should be of binding force unless made in compliance with the provisions referred to. In the revision of 1911-1912 this was enlarged to read that— “Any attempt by a member to change the payee of the benefits of his Benefit Certificate by will or other testamentary document, contract, agreement, assignment or otherwise than by strict compliance with the provisions of this section relating to change of beneficiary shall be absolutely null and void. Any agreement entered into by the member, by the terms of which he attempts to assign the benefits agreed to be paid under the certificate or any part thereof, to any other person or persons than the beneficiary or beneficiaries designated in the certificate, shall be absolutely void; as shall any agreement entered into by which the member agrees not to change his beneficiary if he afterwards violates such agreement and exercises his right to at any time before death change his beneficiary.” The member lived about eight years after executing the indorsement, the brother about four years. Many decisions from other states are brought forward to uphold the doctrine that the matter is purely one of contract and that the equities of a given case will not justify a departure from that principle. Both sides also invoke former decisions of this court. The plaintiff calls attention to Savage v. Modern Woodmen, 84 Kan. 63, 113 Pac. 802, holding that one who helps to pay the assessments upon a certificate in his favor under an agreement with the holder that the beneficiary will not-be changed, acquires a vested interest, and the association having paid the money into court, such original beneficiary can recover, notwithstanding the beneficiary was changed. There for ten years the wife had helped pay the assessments, the assured changing beneficiaries only three days before his death. Here for eleven years the brother and then his son, the plaintiff, not only paid the premiums and assessments, but completed advancements amounting in all to much more than could possibly come to either beneficiary under the certificate. And all this was done in pursuance of agreements to secure the benefactors by making them the beneficiaries. The defendants rely largely on Kemper v. Modern Woodmen, 70 Kan. 119, 78 Pac. 452. In that case the member held a certificate payable at death to his wife. He duly executed a proper blank form requesting a new certificate payable to his brother. This, with the fee, was remitted, but one day before they were received the holder died. The widow sued and recovered. Then the brother’s administrator sued the association, and it was held that he could not prevail, because his right rested in contract, and the method of changing beneficiaries provided in the by-’ laws constituting the contract with the holder and the association was not followed. It was remarked that the new certificate was never delivered and that the member died before his request for a change was received. The Titsworth case (Titsworth v. Titsworth, 40 Kan. 571, 20 Pac. 213) was distinguished as one in which the new certificate had been issued- and delivered in the lifetime of the member, and it was said in the Kemper case: “This is a controversy directly between the new beneficiary and the society which insured the life of the deceased” (p. 124), a fact which differentiates the Kemper case from this. It was said also that the court was merely upholding the stipulations of the member’s contract that no change in beneficiary should take effect until the delivery to him of the new certificate. Pilcher v. Puckett, 77 Kan. 284, 94 Pac. 132, involved the right to the proceeds of a certificate in the Modern Woodmen of America held by William Pilcher payable to his wife. The wife departed this life and the husband made no change in beneficiary except an attempted change by will. The contest was between his heirs and his step-children, the association having paid the money into court. It was held that a member has no interest in the fund, simply the power of appointment, which if not exercised becomes inoperative, and that the attempt to dispose of the fund by will was nugatory, not being the manner provided in the by-laws. It was said: “Cases may arise where equity would aid in an attempted but uncompleted change of beneficiary — where the assured had done his part in making the substitution' in accordance with the rules and by-laws of the order, but no such case is presented here.” (p. 290.) Boice v. Shepard, 78 Kan. 308, 96 Pac. 485, was another case in which the money was paid into court, the contest being between rival claimants, and it was again held that the insured has no interest in the fund. While generally in case of the holder’s death the fund goes to his beneficiary or to his heirs, and not to his administrator, and can not be disposed of by his will, still if he, having received large benefits, in order to secure the person bestowing them, agrees to name him as beneficiary, then it would seem that an interest or equity may arise as in the Savage case. In Knights of Pythias v. Ferrell, 83 Kan. 491, 112 Pac. 155, the holder of a certificate in part performance of an antenuptial contract procured a change making his wife equal beneficiary with his children. Having executed the contract on her part, it was held that she had a vested interest in the policy, of which the husband could not divest her without her consent. The recent well-considered opinion in Mod. Woodmen of America v. Headle et al., 88 Vt. 37, 90 Atl. 893, supports the contention of the defendants and holds, among other things, that the power of appointment can be exercised only in the manner provided in the by-laws, and that the society by bringing a bill of' interpleader and paying the fund into court does not waive the requirements of the by-laws since the rights of the parties became fixed at the moment of the member’s death. (See, also, Note, L. R. A., n. s., 1916 A, 877, 879.) But neither in this nor in any of the other cases relied upon by the defendants do we find conditions similar to those presented here. Neither does the case turn on either one of the three exceptions discussed by Mr. Justice Brown in Supreme Conclave, Royal Adelphia, v. Capella, 41 Fed. 1, but upon the effect to be given to the agreements entered into between the member and his benefactors. The decision in the Ferrell case (83 Kan. 491, 496) cities Stronge v. Knights of Pythias, 189 N. Y. 346, 82 N. E. 433, 12 L. R. A., n. s., 1206. There the member, being sick, agreed with his sister-in-law that for certain care and attention by herself and husband he would make her beneficiary in his certificate. This was done and the certificate was issued and delivered to her. Afterwards he attempted to change the beneficiary, and it was held that he could not do so in violation of his sister’s rights. It was urged that the constitution and general laws of the defendant constituted the contract binding on the member and the beneficiary; that the plaintiff had no vested right in the certificate, and whatever right she had was subject to revocation. The court said: “But can there be any doubt that a member of one of these associations might say to a person that if the latter would loan him a thousand dollars he, the member, would take out a certificate designating the creditor as beneficiary as security for such loan, such designation not to be canceled or changed without the consent of the creditor, and that this contract and agreement would estop and prevent the member from changing the designation whatever might be the ordinary privileges and regulations as between him and the association when no rights of a third party had intervened? . . . The appellant performed her part of the contract and Irvine performed his so far as procuring the certificate to be issued was concerned, and the law now prohibits him from destroying the rights which appellant has acquired in the certificate for a valuable consideration.” (pp. 351, 352.) In Binkley v. Jarvis, 102 Ill. App. 59, 206 Ill. 541, 69 N. E. 582, a beneficiary assigned her certificate to secure a grocery bill. It was said that the only right the company had to com plain was that the agreement was void under its charter but that it was entirely content and made no objection on that ground, and that while such a certificate is not assignable by law all beneficiary interests therein may be transferred in equity. This was affirmed by the supreme court. (Jarvis v. Binkley, 206 Ill. 541, 69 N. E. 582.) In McGrew v. McGrew, 190 Ill. 604, 60 N. E. 861, a certificate issued by the Ancient Order of United Workmen was made payable to the member’s daughter, who advanced to him an amount about equal to the face value of the certificate. The member afterwards had a new certificate issued payable to his second wife. The by-laws provided that its certificates could not be made payable to a creditor nor be held wholly or in part, nor assigned, to secure a debt of a member. It was held that while the certificate was not assignable a beneficial interest could be transferred which would be protected by a court of chancery, and that the daughter was entitled to recover. In Hodge v. Ellis, guardian, 76 Ga. 272, a man holding two benefit policies assigned the smaller to secure money to pay the premiums and future assessments, entering into a written contract to reserve from the proceeds of the policies $2500 for the lender. It was determined that although the father may not have had the strict legal right to make this contract binding on his minor child, equity would decree that the ward do what was right towards one who had preserved the fund for her. Coleman v. Anderson, 98 Tex. 570, 86 S. W. 730, is to the effect that though the laws of the benefit society, which forbade the assignment as collateral to the benefit certificate, left to the assured no interest in the contract except the right to name or change the beneficiary within certain limits, and to the beneficiary no interest except a contingent right to the insurance in the absence of any change in the beneficiary, nevertheless when the beneficiary with the consent of the insured pledged the certificate to a third party to secure assessments neither the insured nor the beneficiary could recover the certificate from such pledgee without the payment of the assessments advanced by him on the faith of such pledge, “though it was forbidden by the laws of the society issuing the certificate.” (Syl. ¶ 2.) In Brett v. Warnick, 44 Ore. 511, 75 Pac. 1061, it was decided that lack of actual substitution as beneficiary, pursuant to the constitution and by-laws of an association, does not affect an agreement by which a person not named therein is to receive the insurance and- so deprive him of his equity to claim the same as against the beneficiaries named therein, “where the association does not insist on it, and pays the fund into court to be awarded to the contestant entitled thereto.” (Syl. ¶ 2.) It seems, however, that in that case the member had the consent of the beneficiary to make the agreement. In the case of Benard v. Grand Lodge A. O. U. W., 13 S. Dak. 132, 82 N. W. 404, it appeared that the insured shortly before his death surrendered a life certificate payable to his wife and received one payable to his sister. The constitution and by-laws provided that there should be no vested right in the sum provided in the policy and that it could not be assigned. The husband had obtained the certificate under an agreement with his wife that she should help pay therefor, which she did. It was held that she had an equitable interest superior to the right of her sister, the liability of the association being admitted and the controversy being between the rival claimants. In the opinion it was said that the rights must be determined by equitable principles, and that “defendant can not, by any rule or by-law, change the law applicable to such a controversy, as between the parties who claim the fund.” (p. 135.) Section 306ft of volume 1 of the third edition of Bacon on Benefit Societies and Life Insurance thus states the rule: “Although it is settled law that the beneficiary named by the member of a fraternal organization has no property in the benefit agreed to be paid, nor vested right therein; so as to deprive the member of the right to change the beneficiary at will, yet there may be conditions under which it would be held that the beneficiary has acquired equitable rights in the benefit, which will be recognized and protected, and the member become estopped from exercising his rights under the contract. In these cases it is not held that, under the contract, the beneficiary has acquired a vested right, but the member has parted with a right which he otherwise might have exercised.” The author quotes from Jory v. Supreme Council, A. L. H., 105 Cal. 20, 38 Pac. 524, 26 L. R. A. 733, wherein it was said: “If the original beneficiary’s interest was vested no subsequent conditions could possibly arise which would defeat his right, and for this reason, we think it can hardly be termed a vested interest. The whole matter seems to be rather a question of equities, and the stronger and better equity must prevail.” (p. 28.) In section 310b it is said: “When the association pays the money into court it waives the right ~to question the validity of the assignment. It follows that the court, having possession of the fund, will dispose of it in accordance with the principles of equity and the limitations imposed by the statutes of the forum.” “It is generally held that the regulations concerning the method of changing beneficiaries are prescribed for the protection of the society, and that if the society has by waiver or estoppel lost its right to object to a change of beneficiary no one else may raise that objection.” (29> Cyc. 135.) (See, also, 14 M. A. L. 206; Note, 33 L. R. A., n. s., 773; 29 Cyc. 128.) Usually the rights of the holder and the beneficiary rest on the contract found in the constitution and by-laws, and ordinarily no other contract is invoked. But here the defendants, sons of the former member, are confronted with agreements made in good faith by their father which brought not only a living to his family for years but the very means to keep the certificate alive. He not only made his brother a beneficiarlas he agreed but he did his part to carry out the subsequent agreement with his nephew by duly indorsing and delivering the certificate to the brother for surrender to the association. The father, if living, would not be heard to deny the plaintiff’s right to the agreed portion of the proceeds. His sons, standing on the strict letter of the by-laws — not invoked by the order itself — claim the entire proceeds. They press the point that all the remaining years of his father’s life from 1905, when the indorsement was made, the plaintiff slept on his rights and neglected to have the new certificate issued. According to the opening statement this is explained if not justified by the sacredness with which he regarded the sealed envelope containing his father’s last will and other papers, and by his supposition that the matter had been attended to promptly. But this delay did not change the act and intention of the member to make the plaintiff the beneficiary, the consideration for which has been more than paid. Upon the principles followed in the cited cases bearing similarity to this, all the evidence should be heard, the controversy then to be adjusted upon equitable considerations. The judgment is reversed and the cause remanded for further proceedings. Mr. Justice Burch and Mr. Justice Marshall dissent.	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The opinion of the court was delivered by Mason, J.: Letitia E. Dollinger and her husband on March • 1, 1910, entered into a written contract with David L. Carson by which they agreed to sell to him a tract of land, subject to a mortgage for $700, which he assumed, for $1800, to be paid July 1,1914, he to pay interest at five per cent in the meantime and to keep up the taxes. Carson and his wife were placed in possession of the property. They paid interest and taxes, but failed to pay anything on the principal. On August 6, 1914, the Drollingers notified Carson that unless payment were made by the 15th of that month they would declare his right to the land forfeited and demand possession. No further payment was made, and on August 20, 1914, they brought ejectment against Carson and his wife. The plaintiffs recovered and the defendants appeal. (1) The only controversy over the facts related to negotiations which the plaintiffs relied upon to excuse their omission to make a tender of a deed. The question whether a tender had been waived was submitted to the jury, whose verdict implied an affirmative answer. A suggestion was originally made that the plaintiffs should have been required to prove their own title, but this has not been insisted on, the rule being recognized that the defendants, having obtained possession from the plaintiffs under the contract referred to, can not raise that question. (Baldridge v. Centgraf, 82 Kan. 240, 108 Pac. 83; 39 Cyc. 1614; 29 A. & E. Encycl. of L. 706.) The defendants maintain that there was no evidence to support the finding that their conduct amounted to a waiver of the tender of a deed. There was testimony that David L. Carson about the first of August referred the plaintiffs’ representative to his wife as the one who was looking after the matter, saying that while the contract was in his name he.was allowing her to handle the business; that later Mrs. Carson told him it was absolutely impossible for them to pay the purchase price due at that time. Under such circumstances the offer to deliver a deed would have been a barren formality, and its omission does not affect the rights of the parties. (39 Cyc. 1541; 29 A. & E. Encycl. of L. 691.) It'is urged that this was thirty days after the tender should have been made, but the delay was immaterial since no change of conditions took place in the meanwhile and the time allowed the defendants for payment had been extended. Decisions are cited that a tender made after the time set are unavailing (see 29 A. & E. Encycl. of L. 691), but they were made in cases where the time originally fixed was treated as being of the essence of the contract, and there had been no extension. A further objection is made that, because the property was occupied as a homestead, á waiver .of tender could only be effective if made jointly by the husband and wife. As the husband had authorized his wife to act in the matter her statement may well be regarded as that of both. The whole controversy about a tender is rather unsubstantial, however, for there is no suggestion that the defendants were at any time ready to carry out the contract. (2) The defendants maintain that in the situation stated ejectment was not an available remedy; that where time is not made of the essence of a contract for the sale of land, the buyer when placed in possession becomes the equitable owner, the seller holding the legal title as security for the purchase price; that upon default in payment the seller can only foreclose his lien as an equitable mortgage, or (where the equities permit) bring an action to rescind the contract and recover possession. It may be remarked in passing that there is not much practical difference between ejectment and an action for rescission and possession. The rule invoked has been applied in a number of Kansas cases. (Holcomb v. Dowell, 15 Kan. 378; Campbell v. Town Co., 69 Kan. 314, 76 Pac. 839, and cases there cited.) But in none of them had the buyer agreed that the seller should have any right of forfeiture or rescission, and in most of them that fact is noted and treated as an important factor. “Whether or not an executory contract to convey land contains a condition for a forfeiture in the event of the vendee making a default in his payments, is a question having an important bearing upon the right of the vendor to recover possession of the premises in case the vendee fails to comply with the terms of the agreement.” (Note, 107 Am. St. Rep. 723.) Here the contract, while not in so many words making time of performance an essential element of the agreement, contained this language: “If default be made in fulfilling this agreement, or any part thereof, by or on behalf of said party of the second part [the buyer], this agreement shall, at the option of said parties of the first part [the sellers], be forfeited and determined, and said party of the second part shall forfeit all payments made by him on the same, and such payments shall be retained by said parties of the first part in full satisfaction and in liquidation of all damages by them sustained, and they shall have the right to re-enter and take possession of said premises.” Such provisions are sometimes said to make time of the essence of the contract. (39 Cyc. 1369, 1370.) However that may be, á vendor who is not in default may make time essential by demanding of the purchaser that he perform his part of the agreement within some stated reasonable period, under penalty of a rescission or forfeiture. (Roberts v. Yaw, 62 Kan. 43, 61 Pac. 409; Knipe v. Troika, 92 Kan. 549, 141 Pac. 557; 39 Cyc. 1370.) Under the circumstances of the present case the time (August 15, 1914), fixed by the plaintiffs on August 6,1914, within which payment must be made was not unreasonable. While it might seem somewhat short there is nothing in the record to suggest that if a longer period had been named the defendants would have availed themselves of it to carry out the contract. In the situation presented ejectment was a remedy open to the plaintiffs. (39 Cyc. 1886, 1889; Note, 107 Am. St. Rep. 724; 29 A. & E-. Encycl. of L. 671.) The defendants could not have been ousted from the land by a summary proceeding before a justice of the peace for forcible detainer, that method not being adapted to the settlement of the controversies involved. (Bramwell v. Trower, 92 Kan. 144, 139 Pac. 1018.) But in an action for the possession of real property, in the district court, equitable as well as legal rights may be determined, and such relief can be granted as will do justice in the particular case. For instance, where the circumstances make it desirable, a conditional judgment may be rendered, providing for a delivery of possession unless payment shall be made, or some other act performed, within a designated time. (15 Cyc. 182; 39 Cyc. 1899.) (3) The decision in Roberts v. Yaw, 62 Kan. 43, 61 Pac. 409, can not be regarded as establishing the principle that when the vendor rescinds a land contract because of the failure of the purchaser to perform his part he can under all circumstances enforce the forfeiture of the payments álready made. Where the buyer had paid a considerable part of the purchase price the agreement for its forfeiture by the failure to meet a later payment might perhaps be regarded as unenforceable because in the nature of a promise to pay a penalty. (See the discussion in National Land Co. v. Perry, 23 Kan. 140.) But here nothing had been paid but the interest and taxes. The only basis for a claim that the judgment is inequitable on the facts is a showing that the defendants had expended $900 in the improvement of the property. Much of this expenditure— perhaps $200 — was for items of ordinary repairs and maintenance — such as painting and papering — which served the purpose of the occupants as much as that of the owner. Some of it — possibly a greater amount — was for changes which would not necessarily add to the value of the real estate — at least in proportion to their cost — and which may not have been desired by the plaintiffs. One who occupies land under a contract providing that he shall have title upon completing the purchase price, but must give up the property if he makes default, has no absolute right with respect to improvements he may make. His agreement gives him none, and the oecupying-claimant act (Civ. Code, § 622) does not apply, for he is not within its letter or spirit. (16 A. & E. Encycl. of L. 96.) The ordinary rule is that he is allowed no compensation for his betterments, although there are cases to the contrary. (16 A. & E. Encycl. of L. 97; 39 Cyc. 1401.) Whatever concession is made to him in this regard must result from circumstances rendering it inequitable that he should lose his entire investment — a matter to be determined upon the facts of each particular case. The trial court evidently concluded that inasmuch as the defendants had had the use of the property during the period of more than five years that the contract had been in force, equity did not require any allowance to them on account of what they had invested in permanent improvements. In this conclusion we concur. (4) It is contended that, inasmuch as the purchaser assumed payment of the existing mortgage, it was incumbent upon the plaintiffs, in order to effect a valid rescission of the contract, to procure his release from the personal obligation thus incurred. His liability was not irrevocable until the mortgagee had acted upon it. (20 A. & E. Encycl. of L. 999.) No showing was made that the owner of the mortgage had accepted the purchaser’s promise, or acted upon it beyond the mere receipt of interest which he had paid at the bank, and therefore the assumption of the mortgage by the purchaser interposed no obstacle to the rescission of the contract sale. “A contract for the assumption of a mortgage, on a sale of the mortgaged premises, may be rescinded or canceled between the parties to it, so long as the mortgagee has done nothing to show his adoption of the benefits of such contract or his acceptance of the purchaser as the principal debtor; and this may be accomplished either by a formal release or revocation of the contract, or by a rescission of the contract of sale or reconveyance of the property.” (27 Cyc. 1360.) “The fact that the purchaser has agreed, as a part of the consideration, to assume mortgages on the land, will not affect the vendor’s right to rescind if the purchaser’s promise has not been accepted by the mortgagee, and where the contract provides that, in case of default in payments, the contract shall be void, the vendor may forfeit, although the mortgagee knew of the agreement and notified the purchaser of maturing interest.” (39 Cyc. 1363.) (5) On the day the whole amount of the purchase price became due (July 1, 1914) the plaintiffs accepted the payment of six months’ interest, which also matured at that time. The defendants insist that this constituted a waiver of the right to declare a forfeiture. If the plaintiffs had a right to rescind the contract merely because the principal was not paid at maturity, they may have waived it by accepting the interest payment made at that time. But this did not prevent their fixing a time in the future within which the purchaser’s interest should be terminated unless the default should be remedied. Indeed, such action was perhaps a necessary preliminary to declaring a forfeiture in any event. In Cue v. Johnson, 73 Kan. 558, 85 Pac. 598, the vendor, having the right to declare a forfeiture for the failure to pay interest when due, led the purchaser to understand that he would be given further time. Without fixing any other date of payment the vendor afterwards determined to insist upon a forfeiture, and in two weeks brought an action for the purpose of having it declared. Ten days later, in an amended petition, he for the first time tendered back the purchaser’s unpaid notes given for the land. The purchaser then tendered the overdue payment, which was refused. The court refused to allow the forfeiture. That decision does not militate against the plaintiffs’ contention in the present case. If here the defendants had offered to make payment before August 15, 1914, they could have compelled i.ts acceptance. If they had made such an offer at any time before the j udgment possibly the court in the exercise of its equitable jurisdiction could have relieved them from the effects of their delay. But in the absence of such an offer at any time the judgment rendered imposes no such hardship as to call for an interference by this court. The mere delay to insist upon a forfeiture at the earliest moment it could be claimed does not of itself constitute a waiver. (Mo. River, Ft. S. & G. Rld. Co. v. Brickley, 21 Kan. 275, 295; 39 Cyc. 1392.) Nor does an extension for a definite period have that effect. (Long v. Clark, 90 Kan. 535, 135 Pac. 673; 39 Cyc. 1393.) In 29 A. & E. Encycl. of L. 685, it is said: “Where the vendor receives payments on the contract or interest thereon, after the expiration of the time prescribed in the contract, he waives the right to declare a forfeiture for failure to make the payments within the required time.” But this statement immediately follows: “The right to declare a forfeiture for nonpayment of the purchase price, according to the terms of the contract, is waived by an extension of the time of payment, but by extending the time for payment the pro • vision in the contract for forfeiture is not done away with, but it is incorporated in the agreement as if originally there. After the time for performance has been extended, the vendor is not entitled to declare a forfeiture without notice, as he has thereby waived his right to proceed strictly under the contract.” The judgment is affirmed.	[ -14, 120, -79, 127, 106, 96, 40, -104, 104, -84, 39, 91, -23, -56, 4, 125, -16, 125, 17, 106, 94, -78, 71, 73, -45, -13, 25, -35, -79, 76, -28, 87, 12, 58, -62, -43, -26, -62, -63, 80, -114, -123, -119, 69, -39, 64, 48, 123, 82, 75, 65, -114, -13, 46, 29, 67, 41, 44, 91, 61, -64, -8, -85, -123, 95, 3, -79, 37, -36, -57, 104, 42, -112, 49, 9, -40, 115, -90, 22, 116, 73, -117, 8, 102, 102, 32, 73, -19, -4, -104, 47, -5, -123, -90, -75, 120, 2, 72, -66, -99, -4, 0, 6, -10, -22, -115, 92, -20, 15, -117, -108, -79, -81, 126, -109, 1, -37, -121, 53, 117, -49, 34, 92, 67, 58, -101, -114, -35 ]
The opinion of the court was delivered by Marshall, J.: This is an action to recover commission for the sale of real estate. The plaintiffs recovered judgment. The defendant appeals. The defendant owned one hundred lots in Wichita. Noah Mortimer owned a section of land in Texas. The defendant appointed the plaintiffs her agents to exchange her one hundred lots for the section, of land in Texas. Mortimer appointed J. W. Moseley his agent to exchange the Texas land for lots in Wichita. From March, 1913, to July 12, 1913, G. F. Corwin, one of the plaintiffs, worked for N. 0. Tate, a real-estate agent, of Wichita, on a salary. July 12, 1913, Corwin succeeded to the real-estate business of Tate, and on JulyT7 formed a partnership with Scott Wolf, the other plaintiff. After G. F. Corwin succeeded to the business Tate was much in the office of the plaintiffs, and when the plaintiffs were out would transact business for them. The defendant’s first negotiation for the exchange of her property for the Texas land was had with Tate before the plaintiff succeeded to his business. After this Tate continued to conduct the negotiations, and on the 20th of August, 1913, procured a contract to be signed by the defendant with J. W. Moseley providing for the exchange of these properties. The plaintiffs were to receive $250 as their commission for making this exchange. Tate directed the defendant to execute a deed for seventy of the lots to Mortimer and thirty of them to Moseley. The evidence tended to show that the thirty lots were to be divided beween agents Tate and Moseley. The plaintiffs had no knowledge of this arrangement. The defendant complains of certain instructions given by the court and of the refusal of the court to give instructions requested by her. The court instructed the jury, in part, as follows: “No. 5. You are further instructed that any secret agreement between one N. 0. Tate and one Moseley with reference to pooling com missions would, not be binding on plaintiffs nor defeat their recovery in this action. “No. 8. You are further instructed that if you find the owner of the Texas land offered and was willing to accept seventy lots from the defendant for this land, and that the plaintiffs knew of this fact directly or by one Tate, and concealed said fact from the defendant, and induced the defendant to exchange 100 lots for the Texas land when the same could have been exchanged for seventy lots, then you are instructed that such action on the part of the plaintiffs would be tantamount to bad faith and would be fraud upon the defendant and they would forfeit their claim to compensation for any services rendered in the transaction.” Instruction No. 8 correctly states the law. The defendant argues that the fifth instruction was erroneous. It is not a correct statement of the law as applied to the evidence in this case. It is positive and direct in its terms, and being erroneous, is entirely misleading. If N. 0. Tate had secret arrangements with the other agents concerning the commissions to be paid by the defendant for the exchange of the land, the plaintiffs are bound by the consequences flowing from that agreement, because N. 0. Tate was acting for them. By his action he defrauded the defendant out of thirty of her lots. The plaintiffs can not reap the benefit of that fraud and say they knew nothing about it and claim that they are not bound by the conduct of their agent in perpetrating the fraud. (2 C. J. 849; Note, 1 L. R. A. 144.) Complaint is made of the refusal of the court to continue the cause at the close of the trial on the application of the defendant. On account of the conclusion reached on the other branch of the case, this matter becomes immaterial. Because of the error in the instructions, the judgment is reversed and a new trial is directed.	[ -16, 110, -32, 45, 26, -32, 58, -110, 105, -24, 39, 87, 45, -52, 17, 125, -31, 61, 80, 107, -26, -78, 87, -85, -46, -45, 81, -51, -75, 93, -12, -41, 76, 48, -54, -107, -122, -30, 67, 28, -114, 16, 10, 96, -39, 36, 52, 123, 22, 67, 81, -114, -5, 40, 29, -61, 105, 62, -21, -71, -48, -72, -117, -123, -1, 19, 48, 101, -38, 3, -24, 46, -112, 52, -120, -23, 123, -74, 6, 116, 79, -117, 12, 32, 106, 19, 113, -85, 88, -100, 47, -1, -115, -89, -16, 88, -126, 77, -66, -99, 121, 16, 2, -10, -1, -99, 25, 108, 11, -113, -106, -93, 47, 122, -103, 27, -5, -121, 19, 112, -51, -94, 93, 71, 50, -109, -113, -48 ]
The opinion of the court was delivered by Johnston, C. J.: This was an action brought by W. D. Rance and Ed Witthauer to recover from The Robinson Investment Company a balance of $1250 alleged to be due to the plaintiffs upon a commission for the sale of real estate. The trial resulted in a verdict in favor of the plaintiffs for $1250, and from the judgment rendered thereon the defendant appeals. In August, 1912, the plaintiffs, who were partners doing business as real-estate agents, were engaged by the defendant to find a purchaser for certain Canadian lands. In the written contract originally made it was provided that plaintiffs’ com mission should be four dollars per acre on improved farms and four dollars per acre on unimproved lands, except that upon exchange of properties or where large tracts were sold at reduced prices, or where changes were made in prices or terms, a special arrangement would be made and a special commission paid. Soon after the employment, plaintiffs secui-ed a buyer, a Mr. Kenton, for 800 acres of the Canadian lands. The regular list price at which plaintiffs held this land Was forty-four dollars per acre, but Kenton being unwilling to pay that much, it was finally agreed that the land should be sold for $40 per acre and that defendant would take in payment $2000 in cash and the remaining $30,000 due was to be paid by $26,000 worth of South Dakota mortgages and the trading in of property owned by Kenton in the city of Olathe, estimated to be worth $4000. In view of the fact that the land was sold at less than list price and not upon a cash basis, it was agreed before the sale was made that plaintiffs’ commission should be $2500 and would be payable when the South Dakota mortgages were converted into cash. The transaction was closed and plaintiffs were paid one-half of their commission, leaving the balance of $1250 for which this action was brought. That the written contract made between the parties was superseded by an oral one appears to be conceded, but there is a dispute as to the provisions of the oral agreement. On the part of the defendant it is claimed that the plaintiffs agreed to sell the Olathe property accepted from Kenton for the price of $3500 net, and that the commission of $2500 was not to be due or payable until the plaintiffs disposed of that property at. the price named or had procured a loan thereon to the extent of $2000. Upon this question the testimony was in direct conflict. The jury found that while the plaintiffs represented that the Olathe property was worth $3500 there was no contract that they should sell it at that price, and that the payment of commission was not made upon the condition that such a sale would be made." The jury upon sufficient testimony found that the oral contract made between the parties was substantially in accord with the testimony of the plaintiffs. The findings of the jury as well as the verdict appear to be abundantly supported by the testimony and no substantial question of law is presented for consideration. An instruction was asked by defendant based upon the theory of a partnership, but neither the pleadings nor the evidence warranted the submission of that question. The judgment of the district court will be affirmed.	[ -14, 110, -79, 76, -118, 96, 120, -38, 85, -96, -90, 87, -23, -54, 21, 121, -25, 45, -64, 104, 70, -77, 18, -94, -46, -13, -15, -51, -71, -51, -76, -44, 77, 60, -54, 21, -94, -30, -59, 22, -98, 6, 8, 101, -35, 96, 60, -37, 16, 75, 113, -114, -5, 40, 21, -62, 109, 44, 111, 41, 65, -16, -93, -123, 95, 22, 16, 38, -104, 71, 72, 78, -112, 53, 9, -56, 115, 38, -42, -12, 101, -103, 40, 102, 102, 35, 116, -17, 120, -104, 47, -1, -115, -90, -124, 88, 2, 105, -66, -97, 125, 86, 3, -10, -17, -115, 29, 104, 7, -117, -42, -125, -81, 124, -104, 3, -37, -121, 48, 112, -55, 102, 93, 87, 114, -101, -114, -80 ]
The opinion of the court was delivered by Dawson, J.: This is the fifth time this case has been before this court. (New v. Smith, 68 Kan. 807, 74 Pac. 610; 73 Kan. 174, 84 Pac. 1030; 86 Kan. 1, 119 Pac. 380; 94 Kan. 6, 145 Pac. 880.) It would serve no good purpose to restate the details of the litigation. The curious and the studious may refer to its earlier chapters in the reports of this court. It is chiefly a lawsuit for the recovery of a farm. When the case arose, the plaintiff was a prisoner in the penitentiary for the murder of her husband. Her life sentence was commuted by Governor Leedy, and some years ago she received a pardon from Governor Hoch. This lawsuit has become a public nuisance, and it must be concluded. The last time it was here the court, in the hope of terminating this controversy, suggested how it might be done. It was held that although the plaintiff was entitled to the recovery of her farm, the defendant had an equitable claim for mortgages paid by him, and that if there was a claim for rents and profits, pleadings pertaining thereto might be filed, the amount ascertained and the litigation closed. When the ■ case was remanded to the district court, a so-called supplemental petition was filed, claiming rents and profits for the years 1898 to 1910 inclusive — another and separate action having theretofore been filed for the rents for the years 1911, 1912 and 1913 — and asking for an accounting; and if an accounting could not be had, that she be awarded the reasonable value of the rents, and that so much thereof as necessary be applied to the satisfaction of the mortgages paid by defendant, and for further equitable relief, etc. To this a technical demurrer was filed, as if the broad principles of equity had nothing to do with the case — those very principles which had been applied by this court most generously in defendant’s behalf to refund to him the amount of the mortgages paid off, notwithstanding he was a trespasser ab initio, having acquired possession of Mrs. New’s farm in January, 1898, from one who had defrauded her of it, with defendant’s constructive or actual notice of the fraud, as has been heretofore adjudicated. The demurrer set up a denial of jurisdiction, another action pending, no cause of action, and improper joinder. The demurrer was overruled. Defendant then answered, setting up the action pending for the rents for the years 1911-1913; that the instant cause had not accrued within two years, nor within three years, nor within five years, nor within fifteen years; that he had paid off a mortgage on one quarter section for $325 in December, 1898, and another mortgage on the same quarter section for $682.37 in March, 1907; and. that he paid off still another mortgage on an additional eighty acres of the farm for $444.70 in March, 1907; that he had expended certain sums for the maintenance and improvement of the property; that he had paid the taxes' for 1898 and succeeding years, and that he did not know what rents had been collected and could not make an accounting thereof: The court found that the fair and reasonable rental value of the farm was $825 per annum, being $200 for the quarter section and $125 for the additional eighty acres. Findings of fact and conclusions of law were made by the trial court, but too extended for repetition here. Both parties appeal, with long assignments of errors. The most practical way to deal with these matters is to consider very briefly what has already been determined in this case. In the first appeal, decided in 1903, the pleadings were in question, and while they were held to be defective, the petition attempted to state a cause of action in ejectment, a cause of action for relief on the ground of fraud and for the rents and profits then accrued. The action had been begun on April 2,1901. This data is gleaned from the files of this court. In the second appeal, decided in 1906, the petition was again the subject of criticism, but it continued to urge a cause of action in ejectment and for rents and profits. In the third appeal, decided in 1911, the petition still recited a cause of action in ejectment, but claimed nothing for rents and profits unless that be assumed from the prayer for “all other proper relief.” But among the many defenses set up in the answer, filed January 21, 1908, nothing was mentioned concerning the mortgages paid by defendant. That defense, or equitable claim, had not yet been raised, although one of the mortgages had been paid in 1898, nearly ten years before, and the other two had been paid about ten months before the answer was filed. This court held that while the action sounded in ejectment, it was in essence an action for relief on the ground of fraud. In the fourth appeal, decided in 1915, the petition was substantially the same as in the third appeal, and the answer was simply a general .denial except as to an admission of defen d' ant’s possession of the premises. While this was all that was technically necessary to raise every possible defense, it is worthy of note that defendant’s claim for mortgages paid by him was first raised in the oral statement of his counsel at the trial in May, 1913, over twelve years after this lawsuit was begun! This court modified the judgment of the district court, affirming plaintiff’s judgment for the recovery of her farm, but granting to defendant an equitable claim, somewhat akin to that of a mortgagee in possession, for the payment of the mortgages by him during the years when he wrongfully held the plaintiff’s property. The district court found that the reasonable rents of the quarter section far exceeded the mortgages and taxes paid thereon by defendant, and allowed them to be set off against each other, and no further. (Civ. Code, § 102.) For no very logical reason apparent to us, a somewhat different consideration was given to the status of the additional eighty acres. Perhaps this was on the ground that although the eighty acres was an integral part of the farm and that although the defendant had wrongfully held the possession thereof for all these years, he acquired a colorable right in equity to hold the eighty acres in March, 1907, by paying off the mortgagé on it, which altered his situation as a trespasser — his status for the preceding nine years. It was apparently on this theory that by the trial court’s mathematical computations, which we will not analyze, a balance of $70.59 was still due to defendant before plaintiff would be let into possession of the eighty acres. Apparently no consideration, or allowance, was accorded to plaintiff for the reasonable rental use of the eighty acres for the first nine years of defendant’s wrongful possession. It ought to be apparent that defendant’s contentions as to the státute of limitations have no place in this lawsuit. In the early years of the litigation, the plaintiff’s petitions, however crude and in need of the amendments made from time to time, persisted in a claim for rents and profits. True, the specific claim therefor was dropped as the years went by and as the case went from court to court; but it should be borne in mind that the lawsuit was a dozen years old before she was called upon to meet defendant’s claim for mortgages paid. And in fairness and equity it must be borne in mind also that the rea sonable rents and profits of the farm, always equitably due to plaintiff, were invariably equal to and aggregated more than enough to meet the mortgages, taxes, repairs and improvements made by defendant. So it is not a very unreasonable contention made by plaintiff’s counsel when they urge that all of defendant’s expenditures were made with moneys equitably belonging to plaintiff. When the plaintiff recovered judgment in the district court for the possession of the farm in May, 1913, she very naturally filed a new aetion for the rents and profits for the three preceding years, on the assumption that she was barred by the statute of limitations from claiming rents for the thirteen earlier years. But this court held that she must reimburse the defendant for the mortgages paid by him. This equitably entitled her to claim rents and profits for all the years she was dispossessed. The code says: “When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations; but the two demands must be deemed compensated so far as they equal each other.” (Civ. Code, §102.) She should, of course, have dismissed the separate action for the rents for the years 1911, 1912 and 1913, and amended her petition, setting up all the rents due her. And yet that would have availed her but little, seeing that the rents which she did claim from 1898 to 1910 were more than sufficient to compensate defendant for the mortgages, interest, taxes and farm expenses, and she was not permitted to recover the surplus. This, of course, was according to law, for the bar of the three years’ statute on the recovery of rents and profits (Civ. Code, § 17, subdiv. 2; Gatton v. Tolley, 22 Kan. 678) would only be taken down in her favor to meet the defendant’s cross-demands so far as they equaled each other. (Civ. Code, § 102.) It does follow, however, that since her claim for the rents of 1911, 1912 and 1913 could have been presented and adjudicated here, and if adjudicated here it would have only served as a set-off to the mortgages, and, as we have seen, the mortgages were sufficiently met by the rents which she did set up, and because this cause, covering this general matter, has pro ceeded to judgment, the claim for the rents for the years 1911, 1912 and 1913 may be deemed to be abandoned. We recognize that what we say touching this last proposition is not squarely before the court; but it was pleaded; it was recognized by the court in its findings, and we are urged to say what we think about it; and owing to the extraordinary duration of this litigation, and still persisting in the hope of concluding this controversy, as expressed by Mr. Justice West in the last appeal, we suggest that the case touching the rents and profits for the years 1911, 1912 and 1913 be dismissed. Some criticism is made touching the apportionment of the costs in the district court. The court exercised its best judgment, and we do not see any serious occasion or any very tangible basis for our interference. The costs of this appeal will be divided and the judgment modified by setting aside the finding that $70.59 is still due defendant on the mortgage covering the eighty acres paid in 1907, with instructions to find that it has likewise been met and satisfied by the rents which he has been permitted to keep; and thus modified, the judgment is affirmed.	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The opinion of the court was delivered by Burch, J.: The action was one for damages for breach of a covenant of warranty against taxes. The defense was that the deed did not express the agreement of the parties and should be reformed in a way to relieve the defendant of liability. The plaintiff prevailed and the defendant appeals. The parties entered' into a written contract to exchange properties. The contract was dated May 24, 1913, and stated that the defendant, J. 0. Fife, agreed to sell, exchange and transfer described real estate free and clear of encumbrances. Abstracts certified down to date were to be furnished, and deeds were to be exchanged within fifteen days. On May 24 the taxes sued for had not accrued. Abstracts of title certified to May 24 were furnished, but the exchange of deeds was delayed on account of defects in the title to the property offered by the plaintiff and did not take place until July 5. The deed signed by the defendant warranted against encumbrances except taxes “not now due and unassessed.” The taxes sued for accrued before July 5, and if this language were referable to the date of the contract, the defendant was not liable; if referable to the date of the deed, he was liable. At the trial the defendant undertook to show the negotations between the parties, which included an agreement by the plaintiff to assume the taxes sued for, which were, in the main, paving and curbing taxes about to mature for improvements which were completed. Objections to this evidence were properly sustained because the oral negotiations merged in the written contract and the written contract merged in the deed. The defendant asked leave to amend his answer by setting up a cause of action for reformation of the deed on the ground of mistake. Leave was granted, and further trial of the cause was postponed until the amendment could be made. When the trial was resumed the plaintiff stood on the evidence already introduced, which consisted of proof of the covenant, the existence of the taxes and their nonpayment. The defendant then proved that the plaintiff agreed to take the property as it stood on May 24 and pay the taxes which were about to accrue. There was proof that after deeds were exchanged the plaintiff fully recognized his obligation to pay the taxes and asked the defendant’s agent where he could borrow some money to enable him to do so. The plaintiff stood on his objection that this evidence was not admissible because in contravention of the terms of the deed, and offered no evidence in rebuttal. Although conversations with the plaintiff were proved he did not choose to dispute or qualify them, and neither the truth nor the credibility of any of the evidence introduced in support of the amended answer is now assailed. The plaintiff still rests his case upon the proposition that the evidence received was not admissible, and upon the further proposi tion that the contract did not effect a sale but was merely an agreement to sell in the future, so that the deed of necessity spoke from its date. There is good authority that the covenant in the deed should be interpreted as relating to the date of the contract and not to the date of the deed, but without this the proof is clear and undisputed that the agreement, intention and understanding of the parties were that the taxes accruing after May 24 were to be paid by the grantee. The defendant so understood the deed, and the proof is that the plaintiff so understood it. They were mutually mistaken if the covenant does, as is claimed, speak from the date of the deed, and the deed ought to be reformed to express the true contract.. When the question is one of reformation on the ground of mistake, parol evidence is admissible to show the facts. Otherwise a false contract could not be corrected to speak the truth unless all the negotiations were in writing. This rule is as well established as the rule forbidding the impeachment of written instruments by parol evidence. The judgment of the district court is reversed and the cause is remanded with direction to reform the deed as indicated and render judgment against the plaintiff for costs.	[ -16, 120, -47, -83, -118, 64, 42, -72, 104, -111, 39, 95, -27, -58, 17, 97, -14, 125, 96, 106, 77, -77, 22, 3, -10, -109, -63, 85, -67, 125, -11, 86, 76, 33, -62, -107, 70, -118, -51, 88, -50, -126, 58, 108, -39, 64, 52, 121, 112, 73, 113, -50, -13, 47, 60, -53, 104, 40, 107, 49, -47, -72, -81, 13, 111, 7, -111, 117, -68, 3, 104, -116, -108, 53, -128, -24, 115, -74, -106, -12, 1, 59, 9, 34, 102, 32, 69, -1, -40, -104, 46, -2, -115, -90, -45, 88, 10, 108, -82, -99, 109, 80, 37, 126, -26, 85, 29, 108, 23, -113, -42, -125, -113, -26, -111, 3, -10, -93, 52, 112, -114, 38, 92, 103, 26, -109, -97, -8 ]
The opinion of the court was delivered by DAWSON, J.: This is an appeal from a decision of the district court of Sherman county sustaining a demurrer to a petition which prayed for a permanent injunction restraining the city of Goodland and its officials from issuing bonds to pay for repairing, extending, enlarging and improving the city waterworks. The plaintiff’s petition alleged that he was a resident taxpayer of the city; that he brought his action on his own behalf and for numerous other resident taxpayers; that the city and its officers were about to issue and sell city bonds in the sum of $30,000, thereby creating an indebtednes against the city, and were about to levy taxes upon the property of the plaintiff and other taxpayers to pay these bonds; and that the proposed bond issue was illegal for various reasons; that Good-land had been a city of the second class for more than twenty years, and for more than two years had owned and operated its waterworks; that it is a city of three wards, governed by a mayor and council, having two councilmen in each ward; that in August, 1913, there was a vacancy in the council occasioned by the permanent removal of councilman Carmichael from the city, and that the mayor and city clerk knew of the vacancy but made no provision to fill it, but continued to transact the city business for many months with a council of only five members. It was further alleged that on January 15, 1914, this council of only five members passed a resolution, and on March 13, 1914, passed an amendatory resolution, declaring it necessary to extend, enlarge, repair and improve the city waterworks. The first resolution was published on January 16, 1914, and the second on March 13, 1914. On the latter date a notice was published advising the residents of Goodland that on March 28, 1914, an ordinance would be passed by the mayor and councilmen providing for such im provements, in accordance with a resolution which had been passed and approved on January 6, 1914, and on March 3, 1914, and that the ordinance would provide for the issuance of $30,000 in bonds to pay for the same. The notice also recited that any person objecting might be heard at the time specified. This notice was published on March 13, 20 and' 27, 1914, “for only fifteen consecutive days and not for three consecutive weeks as required by law.” The petition further alleged that chapter 124 of the Laws of 1913 was unconstitutional in that it violated section 20 of article 2 of the constitution of this state because the act was passed by the legislature without an enacting clause. The act was further alleged to be in conflict with section 16 of article 2 of the constitution because the subject matter of the act was not clearly expressed in the title; that the acts repealed by the statute were not clearly expressed in the title; and that the act violated section 17 of article 2 of the constitution because it applied only to cities already owning waterworks and was therefor lacking in uniformity in its application to all municipal corporations in the same class. Following the prayer for an injunction and costs was the following verification, no other affidavit being filed: “State of Kansas, Sherman County, ss. “I, John Hartzler of lawful age being first duly sworn depose and say that I am the plaintiff in the above entitled cause and that I have read such petition and the statement of facts therein contained are true, as .1 verily believe, so help me God. John Hartzler. “Subscribed and sworn to,” etc. To this petition, a demurrer was lodged alleging: “First: Plaintiff has no legal capacity to sue in said cause. Second: That the petition does not state facts sufficient to constitute a cause of action against the said defendants or either of them.” This demurrer was sustained and the case is here. No specification of errors is assigned. Appellant’s brief cover's many points. Counsel for the appellees contents himself with one, which is the want of a positive affidavit to support the application for an injunction. 1. This action was brought by the plaintiff, a private citizen, under section 265 of the civil code, which provides: “An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of any illegal tax, charge, or assessment, or any proceeding to enforce the same, or to enjoin any public officer, board or body from entering into any contract or doing any act not authorized by law that may result in the creation of any public burden or the levy of any illegal tax, charge, or assessment; and any number of persons whose property is or may be affected by a tax or assessment so levied, or whose burdens as taxpayers may be increased by the threatened unauthorized contract or act, may unite in the petition filed to obtain such injunction.” . . . The statute just quoted wholly disposes of the first point raised by the demurrer. The plaintiff clearly had the right to • bring the action, and such actions have frequently been upheld by this court. (Gilmore v. Norton, 10 Kan. 491; Bunker v. Hutchinson, 74 Kan. 651, 87 Pac. 884; Gas Co. v. Railway Co., 74 Kan. 661, 665, 87 Pac. 883.) 2. Touching the verification, it may be conceded that it is defective. (Atchison v. Bartholow, 4 Kan. 124.) But it must be observed that no preliminary injunction or restraining order was sought by the plantiff. No such interlocutory order could lawfully issue except upon positive sworn testimony, and to have such testimony in convenient and available shape for presentation to a court or judge to support an application for an interlocutory order, it is common and good practice to verify the petition. (Civ. Code, § 251.) But where no injunctive order is sought except upon full and final consideration, before which time the pertinent facts will have been fully attested by the formal introduction of sworn evidence, or by agreement as to the facts, the want of a preliminary affidavit when the petition is filed is immaterial. In other words, it is the injunction and not the petition which needs the support of sworn testimony to justify it. (10 Encyc. PL & Pr. 966; 22 Cyc. 931; Black v. Henry G. Allen Co., 42 Fed. 618, 9 L. R. A. 433.) 3. Since the decision of the trial court can not be sustained upon the ground on which counsel for the appellee seeks to justify it, let us see if .other demurrable grounds do not appear on the face of the petition sufficient to sustain the judgment. How does the vacancy in the city council affect the validity of the proposed bond issue? Appellant invokes the well-known rule that where power is vested in an official body, all its members must have a reasonable opportunity to be present and participate in its deliberations, although a majority may lawfully control its official action. (Gen. Stat. 1909, .§ 9037; Railway Co. v. Meyer, 58 Kan. 305, 49 Pac. 89.) It may readily be conceded that where a statutory board is created for the discharge of a special duty, the rule in Railway Co. v. Meyer, supra, should be strictly adhered to. But the public business of municipal corporations arises from day to day and should be attended to as it arises. Is it imperative that the functions of local municipal government be suspended in case of a vacancy in the city council ? . If there are sufficient members of the council remaining in office who vote for and sanction the work to be done or the project to be undertaken to constitute a majority of the entire constituent membership, and not merely a majority of a quorum, it seems that their official action is valid. Tending to support this view are: Satterlee v. San Francisco, 23 Cal. 314; State ex rel. Harty v. Kirk, 46 Conn. 395; Knoxville v. Knoxville Water Co., 107 Tenn. 647, 64 S. W. 1075; 2 Dillon, Municipal Corporations, 5th ed., §534, and 2 McQuillan, Municipal Corporations, §§ 593, 594. An examination of section 1357 of the General Statutes of 1909 is helpful. It is there provided that permanent removal from the city causes a vacancy in any city office. Then it proceeds thus: “Vacancies in the offices of mayor and couneilmen shall be filled for the unexpired term at a special election to be called and held for that purpose, as may be provided by ordinance.” Now it can not be the law that the public business of Good-land, should be suspended until an ordinance is passed regulating the calling of an election to fill a vacancy in the office of city councilman, and until an election is called thereunder, the result canvassed and declared, and the person elected qualified and seated. 4. Turning next to the question of notice, the statute (Laws 1913, ch. 124, § 4) provides that before the bond ordinance is enacted a notice shall be published to advise the citizen taxpayers of the projected bond issue. It reads: “Such notice shall be published for at least three consecutive weeks . . . prior to the date fixed therein for the passage of such ordinance.” The notice was published on March 13, March 20 and March 27. Apparently the city proceeded on the' theory that a notice published each week for three successive weeks was a sufficient compliance with this provision. The gist of appellant’s contention is that since three weeks are twenty-one days, notice should have been given for that period. It is not an easy matter to harmonize all the decisions touching the computation of time for notice, interpreting as they do the vast multitude of statutes 'which in one way or another prescribe notice as a condition precedent to official action. In Pierce v. Butters, 21 Kan. 124, however, we find a precedent almost identical with the case at bar. There the question was whether a notice first published on April 13, and-last published on April 27 was a sufficient compliance with a statute requiring notice for three consecutive weeks. Mr. Justice Valentine said: “They amended the other affidavit by filing a new and amended affidavit, showing that said notice was published in said weekly newspaper ‘for three consecutive weeks, to wit, April 13 to April 27, 1877’; that is, we construe the affidavit to mean that there were three insertions of the notice in the said newspaper, to wit, one on April 13, one on April 20, and one on April 27, 1877, and, with this construction, we think the affidavit, as thus amended, was sufficient.” (p. 128.) Again, in Tidd v. Grimes, 66 Kan. 401, 71 Pac. 834, it was held that a statute requiring the county treasurer, antecedent to sale of property for delinquent taxes, to cause a notice to be published “once a week for four consecutive weeks,” ivas sufficiently complied with by four publications, one each separate and successive week, the dates of publication being August 6, August 13, August 20, and August 27, covering only twenty-two days. It will be observed that this section under scrutiny (§ 4) also provides that “the last publication ... (of the three consecutive weeks) shall not be more than ten days prior to the date fixed therein for the passage of such ordinance.” This provision was strictly observed. The last publication was on the day preceding the passage of the ordinance. The two prior publications were made in the two preceding weeks. In view of the precedents quoted and this definite language of the statute touching the proper time for the last publication, we must hold that the notice published first on March 13 and last on March 27, covering dates included in three separate and successive weeks, was sufficient. 5. It is next urged that the statute (Laws 1913, ch. 124) violates sections 16, 17 and 20 of article 2 of the state constitution. These objections do not call for much discussion. The act in question can not be said to cover more than one subj ect, which is a grant of power- to certain cities to enlarge, repair, extend, and improve their waterworks systems. The details of the act are all pertinent to the main subject. We think also that the classification of the cities, those second- and third-class cities which own their waterworks and whose indebtedness does not exceed fifteen per cent of their assessed valuation, is not unreasonable nor violative of the uniformity clause of the constitution. To raise a suspicion or presumption against the regularity of this statute’s legislative history, the appellant directs our attention to senate joint resolution No. 16, which immediately follows the act in question (Laws 1913, p. 201) and which orders the insertion of an enacting clause in the act. This joint resolution does not, as contended by appellant, amend the statute. It merely voiced the determination of the legislature to amend the bill before it became a statute. The enrolled bill on file with the secretary of state shows the enacting clause duly inserted. The joint resolution was regularly adopted by a constitutional majority of each house while the bill itself (Senate Bill No, 491, Laws 1913, ch. 124) was still within legislative control, and one day before it was approved by the governor (Senate Journal, p. 789; House Journal, p. 1123). The legislature always has the right to make corrections or germane amendments to a bill until the governor has acted upon it. (36 Cyc. 951.) It may recall a bill from the governor unless he has signed it. (36 Cyc. 959.) In this case we think the legislature was needlessly formal in its procedure to perfect the bill. The joint resolution correcting the error has no more pertinency in the published book of session laws than would the roll call on the bill, or the motions and speeches directed toward it in the course of its consideration by the legislature. (36 Cyc. 951.) The objections to the act are without merit. From the foregoing it will be seen that no prejudicial error arose in the district court in sustaining the demurrer to plaintiff’s petition. The judgment is affirmed.	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The opinion of the court was delivered by Marshall, J.: The plaintiff recovered judgment for the death of her husband, John C. Saar. The defendant appeals. This action comes under the provisions of the federal employer’s liability act. (Part 1, 35 U. S. Stat. at Large, ch. 149, 4 U. S. Comp. Stat. 1913, §§ 8657-8665.) John C. Saar was a brakeman on the defendant’s road and was killed at Independence by falling from or being thrown from the top of a freight car under the wheels of the train on which he was working. The jury made special findings of fact as follows: “Was the deceased, John C. Saar, guilty of any negligence that contributed to his injury. Ans. To a limited extent.. “If you answer the above question in the affirmative, how much do you deduct from the amount you would otherwise give the plaintiff? A. $100. “Was the engineer of the defendant guilty of any negligence in the manner in which he was handling the train at the time the deceased was killed? Ans. Yes. “Did the engineer, Paddy Ryan, use ordinary care and diligence in the manner in which he handled the train at the time of the injury to the deceased, John C. Saar? Ans. No. “Is it not a fact that the ground and the tracks and the cars, at the time and place of the accident, were covered with ice, and very slick? Ans. Yes. “Was engineer Ryan a careful, prudent and experienced engineer? Ans. Was experienced, but not duly careful and prudent at this time. “How fast was the train moving at the time brakeman Saar fell? Ans. Slowly. “If you find for the plaintiff in this action, in what respect do you find that the defendant, its officers, its agents and employes, were negligent? Ans. The engineer failed to use due care in handling his train. “If you find for the plaintiff in this action, what act or omission on the part of the defendant caused the injury? Ans. Violent jerking of the train. “Did the deceased, John C. Saar, know of the slick, icy condition of the ground, track and cars at the time and place of the accident? Ans. Yes. “What precaution did the deceased, John C. Saar, take to safeguard himself against the accident? Ans. By holding onto the brake with both hands.” 1. The defendant’s first complaint is that there was no evidence that the alleged jerking of the train was of such a violent or unusual character as to indicate negligence on the part of the engineer, and therefore the demurrer to the evidence should have been sustained; and that the jury’s findings of the defendant’s negligence are contrary to and unsupported by the evidence. The evidence to support the findings was, that the tops of the cars and the ground were covered with ice and sleet; that at the time of the accident, about 6:30 p.m., sleet was falling; that the train men were picking up three or four cars in the yards; that after making a coupling, the deceased went on top and was walking over the cars; that the tops were slick and he walked “with a little caution”; that the train by that time was moving; that it jerked two or three times as he walked; that the switching was “pretty rough”; that as he stepped from the second car to the third he grasped the brakewheel on one of the cars and stepped upon the brakewheel platform; that the cars jerked again and he fell between them; that the brakewheel was about two feet above the top of the car and was connected with the brake by an iron rod which extended through a plat form at the end of the car about two feet below the top; and that the deceased was standing on this platform holding to the wheel when he fell. From this evidence men might reasonably come to different conclusions concerning the negligence of the defendant in jerking the train. That made the question one for the jury, and it would have been error for the court to have sustained a demurrer to the evidence of the plaintiff. It necessarily follows that there was evidence sufficient to sustain the findings of the jury. 2. The defendant also contends that the findings of the jury as to the contributory negligence of the deceased are inconsistent with the general verdict because the verdict was reduced by only $100 on account of the negligence of the deceased, while the verdict returned in favor of the plaintiff, after making that reduction, was for $9000. Section 3 of the federal employer’s liability act provides that— “The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.” If the deceased was guilty of contributory negligence, his negligence must have been more than a one-ninety-first part of all the negligence that caused his injury. That amount would have been so small as to render it not worthy of notice. Either the deceased was not negligent, or, if he was negligent, .his negligence contributed substantially to his injury. There is nothing to indicate passion or prejudice on the part of the jury. Under these circumstances, a new trial must be ordered, or the judgment must be reduced. “In many of 'the states appellate courts have adopted the practice, where the damages are excessive but the plaintiff is entitled to something substantial, of indicating the excess, and of giving or directing the trial court to give the plaintiff the option to remit the excess and allow him to take judgment for the residue. Such action on the part of the appellate court is no invasion of the province of the jury, or of the rights of the defendant.” (Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 74, 12 Pac. 352.) (See, also, U. P. Rly. Co. v. Mitchell, 56 Kan. 324, 331, 43 Pac. 244; Railway Co. v. Brandon, 77 Kan. 612, 95 Pac. 573; Telegraph Co. v. Bodkin, 79 Kan. 792, 797, 101 Pac. 652; Davis v. Railway Co., 81 Kan. 505, 508, 106 Pac. 288; Yard v. Gibbons, 95 Kan. 802, 814, 149 Pac. 422.) Other cases are W. & C. Rly. Co. v. Gibbs, 47 Kan. 274, 27 Pac. 991; Frankhouser v. Cannon, 50 Kan. 621, 82 Pac. 379; Dennis v. Benfer, 54 Kan. 527, 38 Pac. 806; Railway Co. v. Meyer, 58 Kan. 305, 49 Pac. 89; Railway Co. v. Turley, 71 Kan. 256, 80 Pac. 605; Argentine v. Bender, 71 Kan. 422, 80 Pac. 935; Francis v. Brock, 80 Kan. 100, 102 Pac. 472. If the plaintiff will consent, a judgment will be entered in her favor for six thousand dollars, with interest from the date of the original judgment; otherwise a new trial will be ordered.	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The opinion of the court was delivered by DAWSON, J.: The plaintiff is the daughter of Joseph Putifer and Lucy A. Putifer, his wife. The defendants are her three brothers. The father died about 1896. The mother died in 1906. Three or four days before the mother’s death, she executed deeds of all her real estate to her three sons, and also executed a bill of sale to them of all her personal property. The result cut off the daughter without a penny or a penny’s worth of her mother’s property. The plaintiff brought this action against the defendants to set aside the deeds and bill of sale and for an accounting and partition, and charged that the conveyances were made by her mother through the undue influence of her brothers, etc. Part of the evidence tended to show that the mother’s estate originated and grew out of the unadministered estate of the father, who had been a tenant farmer, and also from the labor of the plaintiff and her brothers daring their minority. The daughter, being the eldest, left home after reaching her majority, and there is some unpleasant reading in the record as to the lack of affection between the sister and her brothers which occasioned her, leaving and may have tended to prejudice her in her mother’s estimation. The general verdict was for the plaintiff, and certain special findings were made by the jury: “Q. 4. Did Lucy A. Putifer execute the deeds in question by reason of undue influence of the defendants, or either of them, as defined by the instructions of the court herein? A. 4. Yes. “Q. 5. If you answer the last above question in the affirmative, then which of the defendants exercised such influence? A. 5. All of them. “Q. 8. Did Lucy A. Putifer, at the time she executed the deeds in question, believe and understand that a large portion of the property conveyed by said deeds had been accumulated and paid for by the defendants? A. 8. No. “Q. 9. Did the plaintiff perform any labor or contribute any money or property towards procuring' the property conveyed by said deeds. A. 9. Yes. “Q. 10. If you answer the last question in the affirmative, then when and how was such contribution made? A. 10. By leaving her personal property with her mother when she left home.” While several errors are assigned, the one chiefly relied upon is that there was no evidence to support the special findings of the jury. We can not agree with this contention of appellants, although the evidence is mostly circumstantial. The hostility of the brothers toward their sister is clear. At one time when she proposed to come home for a short visit to her mother, one of the brothers wrote: “I am running the place at present. I will answer your letter myself. We are too busy with our own troubles to be annoyed with visitors, besides we can not afford to make your living for you.” This, of course, does not go far to prove undue influence, but it is one of a number of circumstances which showed the confidential and exclusive relationship between the mother and the plaintiff’s brothers — that they did n’t want her, a mere visitor (?), coming home, and one brother’s assuming to answer her letter himself. It was clearly a case where the burden of overcoming the presumption of undue influence was properly imposed on defendants. (Smith v. Smith, 84 Kan. 242, syl. ¶ 2,114 Pac. 245.) Nor can it be said that there was a total want of' evidence tending to show undue influence. It was shown that the brothers affected to believe that their sister was not of good character and called her bad names, but whether in their mother’s presence is not clear; the neighbors had been telling the mother “lies” about plaintiff; soon after plaintiff left home the mother told a neighbor that “Belle was a good girl,” and the mother blamed other people entirely for Belle’s leaving home. There is circumstantial evidence that some of plaintiff’s letters were withheld from the mother; about six weeks before her death the mother said she had not heard from Belle for some time, and did n’t know why she did n’t come home. It is tolerably clear that the attitude of the brothers constrained the plaintiff to leave home, and restrained her from returning more frequently to visit her mother — to keep alive and warm the natural affection and esteem which should exist between them. Even in the mother’s last illness, which was known to be fatally impending, the evidence justifies the inference that the brothers did not even advise their sister that their mother was ill. All the news they sent her was to tell her that their mother was dead. The fact that the deeds and bill of sale were made during the mother’s last illness is itself an evidential circumstance worthy of note. We- think there was sufficient evidence of undue influence to submit the case to the jury. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531; Avery v. Howell, 96 Kan. 657, 153 Pac. 532.) As to the other assignments of error, which are scarcely pressed, it is sufficient to say that the admission of the letters from the plaintiff to her mother was competent; that defendants’ demurred to the evidence was properly overruled. So, too, the overruling of the motion to set aside findings 4 and 5. This case is not much of a lawsuit, notwithstanding it has been tried three times. And the plaintiff’s case is about as strong in equity as it is in law. It is urged that the mother’s estate, which was virtually family property and its natural accumulations, was augmented by the labor of the sons. It was likewise augmented by the labor of the daughter who in maidenhood had toiled in the fields to feed the defendants and to help keep the family and family property together. Perhaps the sons have claims against the estate for services since their majority. That matter is not in shape for us to decide. The plaintiff also left some of her own chattels in the family pool when she left home. These helped to earn and increase the family property. There is no objection to taking all these matters into consideration in any accounting to be had. The plaintiff has prevailed three times before the jury. (Coblentz v. Putifer, 81 Kan. 905, 106 Pac. 1011; Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30.) It is unlikely that a jury would ever return any other verdict than for the plaintiff. Indeed, appellants virtually concede this. They say: “Do not send the case back again to be retried before a jury, where again human sympathy will be such a dominant factor in the procuring of an unjust judgment.” As the case now comes before us, we think some adjective more apt than “unjust” could be used to characterize this judgment; and since no error is apparent, the judgment must be affirmed.	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The opinion of the court was delivered by Burch, J.: The action is one of mandamus to compel the defendant to carry out a contract for the erection of a reinforced concrete bridge, which contract the defendant has undertaken to repudiate. No motion to quash the alternative writ was filed and the defendant answered. The answer, however, contains paragraphs alleging that the court is without jurisdiction, that the alternative writ does not contain facts sufficient to warrant its issuance, and that the plaintiff has an adequate remedy at law. The defendant moves for judgment on these allegations. The court has jurisdiction to entertain actions of mandamus, and the question is whether or not its power to issue the writ should be exercised in the present instance. It is said that the alternative writ does not state sufficient facts because there is nothing which the defendant may be commanded to do. The contract requires the defendant to close the site of the bridge against traffic and to give the plaintiff possession of the site for the purpose of building the bridge. This the defendant may be commanded to do now. Otherwise the plaintiff would incur liability for obstructing 'the highway and creating a nuisance to public travel. The remedy by action at law for damages for breach of the contract is not fairly adequate. The profit to accrue to the plaintiff from building the bridge can not be definitely ascertained in advance of performance and the plaintiff is entitled to be placed in possession of the right secured to it by the contract. The motion for judgment in favor of the defendant is overruled. Some formal issues of fact are made by the pleadings. The real dispute between the parties, however, relates to the validity of the contract, the defendant contending that the plans upon which bids were invited were not sufficient to secure competitive bidding and consequently that the contract was entered into contrary to law. While the ultimate question is one of law, the defendant desires to aid the court in its solution by presenting some testimony elucidating the "subject of reinforced concrete bridge construction. Leave is granted both parties to make a succinct showing relating to this subject, in connection with the proof of such facts as can not be covered by stipulation. In default of agreement the court will prescribe conditions as to time and method of taking testimony.	[ -16, 120, -12, -84, -54, 96, 16, -72, 121, 3, 39, 115, -19, 75, 4, 34, -17, 123, 116, 107, 81, -93, 71, 73, -14, -13, -13, -60, -71, 108, -4, -97, 76, 32, -62, -43, 102, -126, -43, 88, 110, -83, 8, -64, -15, 64, 48, 123, 64, 79, 49, -34, -13, 46, 24, -61, -88, 44, 91, -67, 81, -7, -99, -123, 127, 5, -79, 52, -100, 66, -8, 44, -104, 49, 1, -40, 115, -74, -124, 116, 107, -69, 8, 114, 98, 0, -59, -25, -4, -40, 6, -6, -97, -90, 18, 24, 75, 97, -121, -35, 125, 22, -90, 126, -2, -99, -97, 108, 3, -53, -14, -13, -97, 126, -106, 65, -61, -127, 16, 100, -52, -16, 94, 115, 27, -101, -97, -66 ]
The opinion of the court was delivered by Marshall, J.: In this action the contest is between an attachment creditor and an equitable mortgage lien holder. Defendant Isenberg, the attachment creditor, prevailed over defendant J. E. Fitzgerald, the equitable mortgage lien holder, who appeals. In September, 1908, H. P. Fitzgerald, son of J. E. Fitzgerald, owned certain real estate situated in Sherman, Russell and Wallace counties. At that time he executed three notes for $625 each, and secured the same by mortgage on the real estate in Sherman county. The plaintiff, M. A. Fitzgerald, became the owner of one of these notes. September 29, 1910, H. P. Fitzgerald owed J. E. Fitzgerald $955.07 and was largely indebted to a number of other parties. On that day J. E. Fitzgerald agreed to loan H. P. Fitzgerald $800 with which to pay some of his debts, agreed to pay certain other debts owed by H. P. Fitzgerald, and to sign notes with him for still other debts. To secure J. E. Fitzgerald, H. P. Fitzgerald orally agreed to convey to J. E. Fitzgerald the real estate as security. The deeds were not executed at that time because there was no one near who could draw a deed or before whom it could be acknowledged. H. P. Fitzgerald agreed to execute the deeds at an early date. March 30,1911, E. E. Isenberg commenced an action against H. P. Fitzgerald in the district court of Russell county and caused writs of attachment to issue, which were immediately levied on the real estate in Sherman, Russell and Wallace counties. No record whatever of the attachment of the Sherman county land was made in Sherman county until April, 1913. May 11, 1912, judgment was rendered in that action in favor of Isenberg and against H. P. Fitzgerald for $6050 with interest and costs. March 11, 1913, order of sale was issued, under which the real estate in Sherman county was sold to Isenberg. This sale was confirmed and a certificate of sale issued to him. April 8, 1911, after several requests by J. E. Fitzgerald, H. P. Fitzgerald executed deeds conveying the real estate in Sherman, Russell and Wallace counties to J. E. Fitzgerald. The deed to the property in controversy was recorded April 21, 1911. J. E. Fitzgerald complied with his agreement partly before March 30, 1911, and all before December, 1911. He also paid the taxes on the land. J. E. Fitzgerald received actual notice of the attachment suit in Russell county and of the attachment of the Sherman county land in December, 1911, but had no actual notice before that time. The action now before this court was commenced by the plaintiff, M. A. Fitzgerald, September 15, 1913, to foreclose the mortgage held by her on the Sherman county land. J. E. Fitzgerald and E. E. Isenberg were made defendants. J. E. Fitzgerald filed his answer and cross-petition against E. E. Isenberg, claiming a lien on the property second to the mortgage lien of M. A. Fitzgerald but prior to the lien of defendant Isenberg. Isenberg answered the cross-petition of J. E. Fitzgerald, alleging that his lien was second to the lien of M. A. Fitzgerald but prior to that of J. E. Fitzgerald, and asked to have his title quieted as against J. E. Fitzgerald. Judgment of foreclosure was rendered, and out of the proceeds of the sale of the property payment was ordered as follows: first, taxes; second, the plaintiff’s costs; third, the amount due the plaintiff; and the balance to be paid to Isenberg. Title was quieted in favor of Isenberg against J. E. Fitzgerald. The court made conclusions of law as follows: “1. As between H. P. Fitzgerald and J. E. Fitzgerald the latter under the agreement made between them on September 29th, 1910, held the equitable title to the land at the time of the levy of attachment writ issued in the Russell county suit, the legal title resting in H. P. Fitzgerald. “2. E. E. Isenberg being an attaching creditor of H. P. Fitzgerald obtained only such interest in the land in suit under his attachment as H. P. Fitzgerald then had in it, and his equity was in law inferior to that of J. E. Fitzgerald, who then had the equitable title therein; and this would have been so declared had the latter intervened in the Russell county suit and set up his said interest in the land. This interest was not subject to attachment in the suit of E. E. Isenberg against H. P. Fitzgerald and subject to be applied to the satisfaction of the judgment obtained in that suit, and this would have been so declared, if properly raised and presented in that suit. “3. The attachment levy made on the land in suit under the writ issued on the Russell county suit was regular and being so found by the court in that case, can not be contested in this collaterial suit. “4. J. E. Fitzgerald having permitted the legal title to stand in the name of H. P. Fitzgerald on the record of deeds in this county, in legal effect, made him his representative in the Russell county suit, and being in privity to him in the title is bound by judgment of the court in that suit. “5. There was jurisdiction in the district court of Russell county, Kansas, to render the judgment and order it did in the suit of E. E. Isenberg v. H. P. Fitzgerald, and the judgment and finding there made, that the land in suit was subject to attachment and should be applied to' the payment of the judgment rendered in that case against H. P. Fitzgerald is conclusive here. In legal contemplation J. E. Fitzgerald was a party to that suit, though not a party in fact. Under the facts found that judgment was a final adjudication of the claim of J. E. Fitzgerald to the land in suit here. “6. The payment of taxes on December 18th, 1911, on the land in suit made by J. E. Fitzgerald was voluntary, and the sum so paid is not recoverable here. “7. 'As between E. E. Isenberg and the defendant, J. E. Fitzgerald, the former is entitled to judgment for his costs against the latter.” J. E. Fitzgerald’s complaint is of the third, fourth, fifth, sixth and part of the seventh conclusions of law. We will pass so much of the third conclusion as reads, “The attachment levy made on the land in suit under the writ issued on the Russell county suit was regular.” The remainder of the third and all of the fourth and fifth turn on the question of privity between J. E. and H. P. Fitzgerald. The correctness of the sixth and seventh conclusions follow the determination of the question of privity. In Challiss v. City of Atchison, 45 Kan. 22, 25 Pac. 228, this court said that the term “privity” denotes mutual or successive relationship to the same rights of property. The quotation found in Hungate v. Hetzer, 83 Kan. 265, 266, 111 Pac. 183, taken from Coleman v. Davis, (Tex. Civ. App. 1896), 36 S. W. 103, is as follows: “A privy in estate, so as to be bound by a judgment affecting real estate to which he was not a party, is one whose title must be derived from a party bound by the judgment.” (Syl.) A grantor and grantee of real property are in privity with each other, and as between them the grantee is bound where his grantor was bound before the grantee acquired his interest in the property. After that the grantor can not do anything or suffer anything to be done that will affect the rights of his grantee. No person could have purchased this land from H. P. Fitzgerald with knowledge of the agreement between him and J. E. Fitzgerald at any time before the recording of the deed and acquire any interest in the property paramount or adverse to J. E. Fitzgerald. By virtue of the agreement between H. P. and J. E. Fitzgerald, the latter became the holder of an equitable mortgage on this real estate, to secure the debt owing to him — money loaned, debts paid, and obligations incurred by him in obedience to that agreement. (Foster v. Bank, 71 Kan. 158, 80 Pac. 49; Charpie v. Stout, 88 Kan. 318, 128 Pac. 396; 1 Jones on Mortgages, 7th ed., §§ 163, 164; 2 Tiffany on Real Property, §561; 27 Cyc. 983.) H. P. Fitzgerald could not avoid the effect of that agreement. Neither can any one who stands in his place. In an action between H. P. and J. E. Fitzgerald, the court would have enforced that agreement and declared the claim of J. E. Fitzgerald an equitable mortgage on the land. After the agreement was made, and as to all subsequent acts, H. P. and J. E. Fitzgerald were not privies. Isenberg argues that J. E. Fitzgerald acquired his interest in the real estate while the attachment proceedings were pending, and is therefore charged with notice thereof, under section 86 of the code of civil procedure. The attachment proceeding was pending in Russell county. The real estate in controversy is situated in Sherman county. Section 86 of the code provides, in part: “When the subject of the action is real property situated in two or more counties, the filing of the petition in the district court of one county shall not be held to impart notice to persons acquiring an interest in the real property situated in another county, except from the time the plaintiff in such action shall file for record with the registrar [register] of deeds of such other county, a verified statement setting forth the nature of the action, the court in which it is pending, a description of the real property sought to be affected thereby.” This statute was not complied with in any particular. Levying an attachment on the real estate in Sherman county did not impart notice of the attachment action in Russell county, although a copy of the attachment order may have been placed in a conspicuous place on the real estate. In addition to this, the rights of J. E. Fitzgerald did not date from the time of making and recording the deed, but from the time of making the oral'contract with H. P. Fitzgerald. Judgments are liens on the real estate of the judgment debtors. (Civ. Code, § 416.) Judgment lien holders are not purchasers. Their liens are upon the lands and tenements of their debtors, and not upon lands not in fact belonging to their debtors. (Swarts and Others v. Stees and Bryan & Hardcastle, 2 Kan. 236, 241.) They are never considered bona fide purchasers, even if purchasers at all. (Harrison & Willis v. Andrews, 18 Kan. 535, 542; Bodwell v. Heaton, 40 Kan. 36, 40, 18 Pac. 901.) This court has said that an attaching creditor acquires no greater interest in attached property than that held by the attachment debtor. (Burke v. Johnson, 37 Kan. 337, 15 Pac. 204; Bodwell v. Heaton, supra; Good v. Williams, 81 Kan. 388, 391, 105 Pac. 433.) An order of attachment directs the sheriff to attach the lands, tenements, goods, chattels, stocks, rights, credits, moneys and effects of the defendant. (Civ. Code, § 193.) This does not command him to attach the property of any other person. A debtor to defeat his creditor may fraudulently convey his property to a third person, and the creditor can attach the property so conveyed. But in the present action it has not been shown that the property was fraudulently conveyed to J. E. Fitzgerald. The first and second conclusions of law establish the interest of J. E. Fitzgerald in the land. He can not be divested of that interest in an action between Isenberg and H. P. Fitzgerald. J. E. Fitzgerald’s right to the real estate must be determined in some action in which he and Isenberg meet and contest that right. This might have been done in the attachment suit-in the manner suggested in the second conclusion of law. It might have been done by Isenberg obtaining a sheriff’s deed and beginning an action in ejectment against J. E. Fitzgerald. It might have been done in an action by J. E. Fitzgerald to quiet his title as against Isenberg. But until J. E. Fitzgerald’s right to this property has been determined, his interest in the land remains, notwithstanding the attachment proceedings. J. E. Fitzgerald had such an interest in this land as justified him in paying the taxes thereon for the protection of that interest, and his payment of those taxes was not the act of a volunteer. (Gen. Stat. 1909, § 9494.) The trial court erred in its third, fourth, fifth, sixth and seventh conclusions of law. The judgment is reversed, and the district court is directed to enter judgment declaring the lien of J. E. Fitzgerald prior and superior to E. E. Isenberg, and to take further proceedings in accordance therewith.	[ -12, 110, -112, 92, 74, 96, 11, -102, 98, -112, -26, 87, -23, -62, 4, 103, -29, 27, 101, 74, -9, -78, 23, 66, -45, -13, -31, -59, -77, 93, 100, -41, 13, 40, 74, -35, -26, 8, -59, -44, -50, -121, 59, -19, -39, -48, 52, 73, 16, 73, 53, 39, -13, 38, 28, 110, 45, 46, -39, 57, -48, 17, 43, -113, 127, 1, 17, 85, -102, 65, -56, 62, -112, 53, -128, -23, 82, -74, -58, -10, 73, -119, 44, 54, 103, 17, 85, -49, -24, -72, 44, 127, -99, -90, -109, 88, 43, 67, -98, -99, 83, 16, 6, -10, -21, -123, 13, 104, 14, -113, -106, -95, 8, 122, -103, 67, -45, -89, 52, 112, -51, -79, 93, 102, 57, 57, -122, -74 ]
The opinion of the court was delivered by West, J.: The plaintiff recovered a verdict for $757.02 for 165,000 decalcomania name plates. In addition to the general verdict the jury returned answers to certain special questions. On motion of the defendant the verdict was set aside and judgment was entered in its favor on these answers. From this ruling the plaintiff appeals. The essential facts of the case are that the plaintiff by its traveling salesman took an order of the defendant through its general sales manager for the name plates. The answer alleged that the order was taken on condition that the defendant could induce other oil companies to take a certain number of the articles, and the plaintiff’s agent was notified not to transmit the order to the plaintiff but to hold the same until notified so to do by the defendant. The jury, however, not only found in favor of the plaintiff, but in answer to a special question whether the order was given with such understanding answered, No. It seems, however, that with the order was a list of dimensions indicating the sizes of the plates desired by the defendant, and that upon its receipt the plaintiff’s artist, finding that such sizes would need to be somewhat different in order to be of proper proportions, the defendant was so advised, and in reply wrote, among other things— “You understand if you manufacture these signs, you will have to hold them until such time as may come when we would be able to use them, as I instructed you not to go ahead with the order.” It is admitted in the answer that the plaintiff submitted to the defendant sketches of the name plates for approval, but it is averred that such approval was never given and that the defendant never authorized the plaintiff to make the plates it alleged it had manufactured for the defendant. After receipt of the letter last quoted from, the plaintiff wrote that the order could be completed and shipped or the work stopped and the defendant be charged with the work already done plus profits, to which the defendant replied, reiterating that no authority had been given to manufacture the goods, and adding, “We can not entertain your proposition in your letter at all, and as soon as we need them, we will order them out.” Further correspondence repeated the claims of both parties, the defendant writing, among other things: “After giving you such positive instructions not to make shipment of this goods, we feel as though we are not under any obligations to your company.” The president of the plaintiff company testified, among other things, that the goods were in strict accordance with the order and the sketches submitted and approved. Also, that the designs were made up by the plaintiff’s art department, “who figured the spaces and style of letter that would look best in the space where the transfers were to go, from the catalogue that was sent us with the order. . . . Where our customer specifies a definite size'in his order, but tells us where he wants, the transfer to go in a certain space — and we are to make up sketches for his approval, we consider the customer’s dimensions only approximate, and draw up the sketches in a way that will look best in the given space. We. then submit the sketches for his approval. If he approves of them, we make up the design accordingly, but if he does not, we make new designs. We make no changes in the transfers except those that have been first approved by the customer. When a trans-' fer is finished and delivered, it is exactly the size that the customer has approved of.” The artist testified that he considered the dimensions given as only approximate and did not follow exactly those given in the order. The plaintiff’s sales agent testified without dispute that once when he called on the defendant’s general sales manager the latter said that the submitted sketches were all right as far as he had seen them. When the consignment was shipped it was refused by the defendant, and the defendant’s general sales manager testified: “It was refused because we could not use 165,000, and they had violated our instructions. “Q. Yes, if you had been able to, you thought, to use 165,000 this order would have been right, would it not, Mr. Winters? A. Well, if they had been made according to our specifications. “Q. They never were tried at all? A. No, sir. “Q. Did you ever examine them? A. No, sir. “Q. Do you know whether they could have been used or not? A. I didn’t examine them. “Q. Then you don’t know whether they could have been used or not? A. No, sir. • “Q. Do you say they weren’t so they could have been used on your cans? A. I don’t know whether they can or not. I don’t know whether they will fit. “Q. Then that wasn’t the reason for refusing the order, was it? A. It wasn’t my reason, no. “Q. What was your reason? A. Because we couldn’t use that many and they hadn’t gone according to our instructions.” It will be seen from the foregoing that the sizes of the articles furnished were not precisely those specified in the catalogue accompanying the order, and that in the defendant’s general sales agent’s testimony this variance was mentioned as one of the reasons for refusing the payment. The following answers were returned by the jury: “7. Were the sketches of the articles to be manufactured made by plaintiff changing the size of the articles? Answer: Yes. “8. Were said sketches approved by the defendant? Answer: No. “9. Were the articles which were shipped to defendant made according to said sketches? Answer: Yes.” It, would seem, therefore, that the trial court concluded that because the sizes had been changed and the change had not been approved, the contract had been departed from so that the plaintiff was not entitled to recover. The jury were instructed that the plaintiff was bound to manufacture and deliver the transfers in strict conformity with the order, and that a failure so to do would be sufficient ground to refuse acceptance. The defendant’s position is thus stated in its brief. “There is no question in this case concerning defects in the articles manufactured. Appellee simply contends that it is not liable on the contract because appellant never performed the contract and not because appellant substantially performed the contract and made a breach of warranty as to quality. The question as to what reason appellee had for refusing to accept the shipment is not material. ... It makes no difference why appellee refused the shipment, because before appellant can recover on the contract it must prove that it shipped to appellee the identical articles ordered.” 'The plaintiff insists that the variance was immaterial and one that rendered the articles no less usable and valuable than they otherwise would have been. Attention is called to authorities holding that an implied warranty does not go with the sale of mill machinery by a dealer that it shall answer the particular purpose intended (Ehrsam v. Brown, 76 Kan. 206, 91 Pac. 179); that a refusal to accept on account of dissatisfaction must be in good faith (Hollingsworth v. Colthurst, 78 Kan. 455, 96 Pac. 851; Ramey v. Thorson, 94 Kan. 150, 146 Pac. 315), and other decisions more or less analogous. But the question here concerns a variance from the sizes of articles ordered, not a divergence in quality or a lack of fitness for the desired purpose. Even in such a case it has been held that a sale of goods of a described quality implies a warranty of such quality. (Johnston v. Lanter, 87 Kan. 32, 123 Pac. 719.) There the order was for No. 1 cypress lath, and while it was stated as the general rule that prompt inspection and rejection with notification must follow receipt of the article ordered, promptness was held to be a question of fact dependent on circumstances. In Wolf v. Boston Veneer Box Co., 109 Mass. 68, the contract was to deliver monthly throughout the year logs averaging a certain diameter, option with the defendant to end the contract at any time and pay the cost of the logs on hand. He ended the contract in October and was held liable for the cost of the logs then on hand though not up to the average, but upon the ground that had the contract continued to the end of the year the average might have been brought up. In Forke v. E. C. Meacham Arms Co., (Texas, 1892) 19 S. W. 550, a shipment of bullets was refused because not packed in the usual style of box. It was decided, however, that the bullets ordered having been sent, and the style of box not having been indicated by the defendant, he must pay. Loftus v. Riley & Co., 83 Iowa, 503, 50 N. W. 17, is cited in support of the argument that substantial correspondence with the specifications is sufficient, but in that case, involving a large order of paving blocks, the circumstances were such that the decision does not materially assist in the determination of the case before us. The record here shows that there is no market for the articles refused, such things being manufactured to fill special orders and not otherwise salable. There is much to indicate a purpose to refuse the shipment because too large an order had been given. The jury found for the plaintiff but at the same time said that the articles shipped were not of the sizes ordered, but were made after sketches not approved by the defendant, the equivalent of saying that the plaintiff sold one kind and delivered another kind of article. Not only was this inconsistent with the general verdict, but it was deemed by the trial court to be within the rule requiring judgment on the special findings. The majority of the court hold such ruling to have been correct. (Hogue v. Mackey, 44 Kan. 277, 24 Pac. 477; L. N. & S. Rly. Co. v. Wilkins, 45 Kan. 674, 26 Pac. 16; Windmill Co. v. Buchanan, 46 Kan. 314, 26 Pac. 708; School District v. Lund, 51 Kan. 731, 33 Pac. 595; Kansas City v. Brady, 52 Kan. 297, 34 Pac. 884; Beech v. Railway Co., 85 Kan. 90, 116 Pac. 213; McClain v. Railway Co., 89 Kan. 24, 130 Pac. 646.) The judgment is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: This appeal is taken from an order overruling a demurrer to the petition filed by the plaintiff and giving defendants twenty days within which to file an answer. In the petition it was alleged that J. W. Grantham obtained from S. J. Toovey a week’s option giving him the exclusive right to purchase 160 acres of land in Cherokee county for the price of $9600; that he paid Toovey $100 for the option, the same to be applied on the purchase price in case he decided to buy the land. It was further alleged that Grantham entered into an oral contract with John M. Cooper' whereby the latter paid the purchase price, including the $100 paid by Grantham for the option, and took the title in his own name with the understanding that Cooper was to have an interest therein to the extent of “the $9600 paid and also one-half of the value then existing in or to be realized from said land, over and above the said sum of $9600, and the other one-half to be held in trust for Grantham. It is alleged that Cooper openly acknowledged the interest existing in this property in favor of Grantham for a time, but later denied the same and continued to do so until his death on November 18, 1914. Defendants T. Conner and W. W. Wyatt are the executors and trustees of Cooper’s estate, and Grantham filed his written demand with them claiming an interest in the land, and the latter having disallowed his claim, this suit was commenced. Appellant-J. 0. Goodwin was afterward made a party defendant for the reason that he claimed to have purchased the land from Cooper and that a deed to him from Cooper had been placed in escrow to be delivered upon payment of the purchase price. The demurrer of the defendants is based upon the theory that the alleged trust in these lands in favor of plaintiff was void for the reason that it was not in writing as required by the act relating to trusts in land, and that it does not come within the exception in section 8 of the act, which relates to implied trusts (Gen. Stat. 19Ó9, § 9701), for the reason that the petition did not allege that the agreement was without any fraudulent intent and that Grantham paid the purchase money or some part thereof. Is the oral agreement valid and enforceable? The statute provides, in effect, that a trust in land can only be created by a writing signed by the party or his duly authorized attorney, except when it arises by implication of law. (§ 9694.) Is the oral agreement within the exception; that is, does a trust arise by implication of law under it? In section 6- of the act relating to trusts and powers (Gen. Stat. 1909, § 9699) it is provided that in case a conveyance of land is made to one person and the consideration paid by another a trust will not result in favor of the one who pays the consideration except a,s provided in section 8 of the act; that is, “where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the párty paying the purchase-money or some part thereof.” (§ 9701.) The essentials of the exception are absence of fraudulent intent, and that the one claiming that a trust results in his favor shall have paid the purchase price or some part thereof. While Grantham held the option to purchase the land, he transferred his right to Cooper who paid the full purchase price of the land as well as the money advanced by Grantham to obtain the option. The petition contains no express allegation that the agreement between the parties was free from fraudulent intent, but perhaps a liberal interpretation of the averments may warrant the inference that there was an absence of fraud in the transaction. The claim that a trust resulted in favor of Grantham, however, fails because of the lack of the element of payment. The-oral agreement can not be enforced and a trust declared in favor of Grantham under the exception unless he has paid all or some part of the purchase price of the land. And it can not be regarded as an express trust for the reason that it was not created in writing. (Morrall v. Waterson, 7 Kan. 199; Franklin v. Colley, 10 Kan. 260; Ingham v. Burnell, 31 Kan. 333, 2 Pac. 804; Gee v. Thrailkill, 45 Kan. 173, 25 Pac. 588; Love v. Love, 72 Kan. 658, 83 Pac. 201; Blackwell v. Blackwell, 88 Kan. 495, 129 Pac. 173.) He insists that he is entitled to an interest in the land on the theory that a partnership relation was formed by the agreement, and he cites as an authority Tenney v. Simpson, 37 Kan. 353, 15 Pac. 187. That relation does not exist between the parties because the agreement did not provide for a community of profits and losses in the business enterprise. Persons may enter a partnership relation by uniting to place their money, effects, labor or skill, or some of them, in a business enterprise, but it is essential that each member shall subject himself to partnership duties and liabilities and that there shall be a community of interests in the profits and losses. (Jones v. Davies, 60 Kan. 309, 56 Pac. 484, 72 Am. St. Rep. 354; 30 Cyc. 349.) Here there was no agreement that Grantham should bear any of the expenses or share in any of the losses that might result from the enterprise; According to the arrangement Cooper was to advance the purchase money and the cost of the option and was to pay Grantham one-half of any increase there might be in the value of the land after the purchase was made. Grantham had the option which might be regarded as a sufficient consideration for an agreement otherwise valid, but he did not agree to pay any part of the taxes or other expenses incident to the holding or disposing of the land, nor did he agree to share in any of the losses that might result from a diminution in the value of the land. An agreement that one party is to give and the other receive a half interest in the proceeds of an investment of this kind where there is no provision for sharing in the losses is not a valid partnership agreement. (30 Cyc. 358.) It follows that the judgment overruling the demurrer to the petition must be reversed and the cause remanded for further proceedings.	[ 114, 110, -4, -65, 10, 96, 40, -77, -22, 32, 103, 83, -7, -38, 4, 113, -14, 77, 85, 123, -58, -77, 22, -32, -45, -13, 91, -35, -79, 76, -26, 86, 12, 40, -62, 85, -26, -54, -63, -40, -50, -123, -85, 101, -39, 73, 48, 59, 16, 75, 1, 46, -13, 40, 25, 66, -23, 44, -53, 41, -48, -7, -114, 5, -1, 15, 48, 37, -104, -125, -56, 14, -112, 49, 2, -24, 83, -74, -106, -12, 73, -119, 8, -26, 103, 32, -27, -19, -104, -120, 46, 126, -115, -90, -14, 88, 66, 96, -68, -99, 122, 16, -115, 116, -29, 29, 92, 108, 3, -113, -108, -77, 7, -68, -102, 3, -10, 47, 48, 113, -51, -94, 93, 102, 51, -101, 31, -8 ]
The opinion of the court was delivered by Burch, J.: The action was one by an employee for damages resulting from personal injuries occasioned by the negligence of his employer. The plaintiff recovered. On appeal to this court the judgment was reversed because of a special finding that there was no evidence relating to a material fact, and a new trial was ordered. (Estes v. Zinc Co., 91 Kan. 138, 136 Pac. 910.) Before the second trial the plaintiff died. The action was revived in the name of the plaintiff’s administratrix, who prosecuted it to judgment. The defendant was again defeated and again appeals. The defendant raises the question whether or not the record discloses a proper party plaintiff. The petition was amended by leave of court for the purpose of showing the appointment and qualification of the administratrix in whose name the action had been revived. The amendment reads as follows: “Comes now Laura J. Estes, widow of William J. Estes, the above named plaintiff and for an amendment to the petition herein, she alleges that William J. Estes, the above named plaintiff, departed this life intestate on the 25th day of January, 1914, during the pendency of this action; that at the time of his death he was a resident of Montgomery County, Kansas, and that on or about the 14th day of March, 1914, by the consideration of the Probate Court of Montgomery County she was duly appointed Administratrix of his estate, and that she has duly qualified as such Administratrix and is now the duly acting and qualified Administratrix of the estate of William J. Estes, deceased. “That afterwards, to-wit, on the 14th day of November, 1914, on motion this court duly made an order reviving the above entitled action in her name as Administratrix of the estate of William ' J. Estes, deceased, and that she desires by this pleading to amend the original petition in this action, and that said action proceed on said petition as amended hereby.” No objection was made to the form of the amendment and no issue was taken upon it. At the beginning of the trial an objection was made to the introduction of evidence under the amended petition for the reason it did not state facts sufficient to constitute a cause of action in favor of the plaintiff. It is said that the amendment did not present in issuable form the facts from which the legal conclusion of due appointment and qualification might be deduced. The cases of City of Atchison v. Twine, 9 Kan. 350, and C. B. U. P. Rld. Co. v. Andrews, Adm’r, 34 Kan. 563, 9 Pac. 213, are cited. In those cases no amendment whatever was made to the petition. It does not take much of a pleading to be good against an objection to the introduction of evidence. Conclusions which apprise the opposite party of what is claimed are sufficient against such an objection, and, indeed, conclusions of that kind are sufficient against a formal demurrer when no motion to make definite and certain has been interposed. Besides this, as the court has remarked on numerous occasions, the important thing is not whether the technical requirements of the old artificial system of framing sharp issues has been complied with, but whether the plaintiff has stated what he claims in such a way that the defendant may know what he has to meet. It was important that the defendant should not be compelled to pay damages due to William J. Estes in his lifetime to some one not authorized to receive them, or to defend an action which might lead to that result. When Laura J. Estes came in and stated that while the action was pending William J. Estes died intestate, a resident of Montgomery county, that by the consid eration of the probate court of Montgomery county she was duly appointed administratrix of his estate, that she had duly qualified as such administratrix and was acting in that capacity, and that she desired the action to proceed on the original petition amended by her statement, she came very near to stating all that good pleading required. The defendant was quite as fully advised of the nature of her claim as if she had pleaded her letters of administration, the taking of her oath, and the giving of her bond and its approval, all matters of record which she was not required to exemplify. The defendant could not sit by until the trial was on and then say it was confronted by nothing at all. Furthermore, before the plaintiff’s case was closed the records and documents were produced in evidence, which established the right of the administratrix to prosecute'the action. Their authenticity and probative force were not contested, and no claim is now made that the administratrix did not in fact have capacity to prosecute the action. Objection was made to the proof but the defendant did not undertake to meet it in any way. There is not now and there never has been any doubt whatever that Laura J. Estes in her representative capacity was the proper party and had the right to go on with the litigation, and if the amendment to the petition were to be regarded as materially defective this court would now treat the petition as properly amended to conform to the proof. The material facts of the case were sufficiently stated in the former opinion. Perhaps there should be added to the former statement the fact that the gear shifting device was located on the third floor of the building and that the line shaft was on the second floor. The evidence given by the deceased plaintiff at the former trial was read to the jury, and all the important and controlling evidence on behalf of the plaintiff at the second trial was substantially the same as at the first trial, with this addition: a witness not previously produced told of an instance when the machinery started apparently of its own accord, and testified that after the plaintiff was injured the line shaft was found to be four inches lower at one end than at the other, which would make one side of the belt tighter than the other and would cause the belt to run to the tight side. The defend ant introduced no evidence and the same instructions were given the jury as before. The defendant assigns as error the overruling of a motion to make the original petition more definite and certain and the overruling of a demurrer to the original petition. The defendant further assigns as error the admission of certain evidence which was admitted at the first trial, and under an assignment that the court erred in overruling a demurrer to the evidence discusses the effect of evidence which was given at the first trial. The defendant is not entitled, as a matter of right, to be heard upon these assignments of error. On the former appeal the sufficiency of the petition was not challenged and the action of the court in admitting the evidence objected to was not challenged. It was argued that the plaintiff assumed the risk of his injury and that the evidence was insufficient to sustain a verdict in his favor. Defects in the proceedings which might have been presented on the former appeal, but which were not, were waived, and matters which were presented and which were decided against the defendant were concluded by the former judgment of this court which set aside the verdict because of a single fact, the special finding referred to.. “Whatever therefore, was at that time decided, is not now a matter for reexamination. Nor is this limited to the mere questions noticed in the opinion, nor indeed to the actual matters presented by the respective counsel, and considered by the court. ... A party may not settle the law of his case by piecemeal before this court, any more rthan he may settle the facts in that way before the district court.” (Headley v. Challiss, 15 Kan. 602, 606, 607.) This is the prevailing rule governing appellate practice. (3 Cyc. 398.) Simetimes, however, something of vital importance may have been overlooked on a former appeal which it would be wrong to ignore on a second appeal through slavish adherence to rule. Likewise it may be clear that the court made a serious mistake in its former decision and that greater injustice would result from it than would result from nonadherence to a salutary rule. Other grounds may exist for recognizing an exception to the general rule. (Lorimer v. Fairchild, 68 Kan. 328, 75 Pac. 124.) This being true, the court has investigated the assignments of error far enough to satisfy itself that the defendant has not been seriously prejudiced in any of its substantial rights. The petition stated a cause of action the nature of which, if not clearly understood before, was made very plain at the former trial. The evidence relating to the construction of the north elevator illustrated the defective construction of the south elevator boot. The letter objected to did not determine the answers to special questions which established liability, and the verdict was not excessive. The plaintiff testified that he pulled the machinery out of gear and, as the former opinion stated: “We think the candor of the plaintiff was not only commendable, but that it did not weaken the force of his testimony or make it less convincing than a positive assertion of actual knowledge that the belt was out of gear.” (91 Kan. 140.) The plaintiff's statement that after he removed the obstructing ore “it did not go” did not completely destroy the force of his testimony that he pulled the machinery out of gear and his testimony indicating the belt would have burned out if the machinery had been in gear during the time he was cleaning out the boot. There, was abundant evidence that the belt would shift of its own accord from the loose to the fixed pulley and thus unexpectedly start the machinery in motion. A sufficient explanation of this fact was found in the improper alignment of the power shaft, and the jury did not go contrary to the testimony of the expert witness, Mishner, in finding that the machinery got in gear because of “defective line shaft.” In shifting the belt, force applied on the first floor of the building operated a device on the third floor which accomplished the desired result on the fourth floor, and the plaintiff was not obliged to confine either allegation or proof that the machinery was defective because it would go in gear automatically to any specific floor. Because the machinery would go in gear of its own accord, and because of the construction of the boot, the plaintiff did not have a safe place to do the work of taking out ore when the elevator clogged. On an occasion some three weeks before the plaintiff was injured he was working at the north crusher. He saw that the elevator of the south crusher (the one which injured him) had stopped and he pulled the rope to throw it out of gear to prevent the belt from burning. Some time afterwards the defendant’s machinist came to him, said the belt was burning, and asked the plaintiff why he had not thrown it out of gear. The plaintiff replied he had done so. At that time he could smell the burning belt. He did not know certainly whether he had succeeded in throwing it out of gear or whether it had worked back in gear. The fact that the plaintiff acquired this knowledge in this way of a single instance of irregular action on the part of the machinery did not establish the defense of assumed risk as a matter of law. The defendant’s request that the following questions be submitted to the jury was denied: “Was it a rule of Edgar Zinc Company, defendant, that no employee should go down into the basement to unchoke the elevator boot without first knowing that the drive belt was out of gear? “When William J. Estes went down into the basement to unchoke the elevator on the morning that he was injured, did he know that the drive belt was out of gear? “Is it not a fact that William J. Estes could have determined with certainty whether or not the drive belt was out of gear before he went down into the basement?” In a whip-sawing examination of the plaintiff he said he did not know whether or not he had thrown the machinery out of gear before commencing work in the elevator boot, but he demonstrated by other statements that he had all the assurance that he had done so which reasonable prudence required, considering the character of the belt-shifting apparatus which has been described. The word “know” had two meanings — possession of absolute knowledge, which was immaterial, and full assurance to the exclusion of doubt on the part of a reasonably careful person, which was material. Because of this fact the jury might have been confused by the questions. Any answers the jury might have returned would have allowed continued play upon the two significations. It made no material difference how the questions might be answered if the plaintiff, by employing the usual means in the usual way,- threw the machinery out of gear. These subjects were sufficiently covered'by the following special findings which were returned: “Did William J. Estes try to throw the drive belt out of gear before he entered the basement? A. Yes. “Was not pulling the rope, the end to be pulled being on the first floor, the method which the defendant provided for the purpose of throwing the said elevator belt out of gear? A. Yes. “State whether or not you find that said Estes pulled the rope in the usual and ordinary way for throwing machinery out of gear prior to commencing work in the elevator boot, where he was injured? A. Yes. “Was the drive belt out of gear when William J. Estes entered the basement? A. Yes.” The defendant requested that the following question be submitted to the jury: “Do you find defendant to have been negligent ; if so state in what respect it was negligent ?” The court struck out the latter part of the question and submitted the first part, which was answered in the affirmative. The defendant was entitled to know in what respect the jury considered it to be negligent if it were found to be negligent, but no prejudice resulted from the court’s action because the jury found the defendant was negligent in the very particulars alleged in the petition, and specified the cause of the machinery going in gear of its own accord, as appears by the following special findings: “Do you find that the defendant Zinc Company furnished to William J. Estes a safe place to do the work at which he was engaged at the time of his injury? A. No. “Was the failure of the defendant to furnish Estes with safe machinery with which to do the work, the proximate cause of his injury? A. Yes. “Do you find that the elevator went into gear after Estes went down into the basement to unchoke the elevator boot? A. Yes. “Do you find that the elevator belt started in motion while plaintiff was engaged in cleaning out the elevator boot, and without notice or warning to the said Estes? A. Yes. “Is there any evidence before you to show that the drive belt changed of its own motion from out of gear into gear while William J. Estes was engaged in cleaning out the boot of the elevator on the morning when he was injured? A. Yes. “If the drive belt got back into gear while William J. Estes was cleaning the boot, at the time of his injury, is there any evidence to show how it got back? A. Yes. “If the drive belt was out of gear when William J. Estes entered the basement, state how it got in gear? A. Defective line shaft.” The judgment of the district court is affirmed.	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The opinion of the' court was delivered by Dawson, J.: In October, 1907, the plaintiff and defendants .formed a partnership for the purpose of conducting a plumbing and gas-fitting business in the city of Ardmore, Okla. By agreement' of the partners,- the plaintiff went to Ardmore to take charge of the business at a salary of $85 per month. His salary and all other expenses were to be paid out of the proceeds if the business, and the profits, if any, were to be shared equally. The business was a losingwenture. The receipts for six months were $3000.10; the disbursements $3683.62; and certain other expenditures were borne by the plaintiff personally. The plaintiff closed out the business in April, 1908, and shipped the remaining goods on hand to the defendants, who had an independent partnership in other business elsewhere. This action was brought on September 19,1913, and the later amended petition set out the foregoing facts, and pleaded the state of the accounts between plaintiff and defendants, showing a balance due him, and alleging the existence of “some unsettled accounts.” His petition continues: . “That certain goods shipped to the defendant at the time said business was closed were lost and said firm had a claim against the Mo. Pac. Kailway Company for the loss of said goods which claim the defendant Walter Campbell of said [independent] firm of Campbell and Beeler instructed this plaintiff to collect. That he proceeded to collect the daim but did not succeed therein until the first day of August, 1910, when said company paid $100.00 in settlement of such claim, which was placed to the credit of the firm of Brooks, Beeler & Campbell on the 1st day of August, 1910. “That since the first day of August, 1910, each of said defendants have been absent from the state of Kansas at times for more than a total of 60 days.” The plaintiff prayed for a commission to examine the books and accounts of the firm, for a determination of the partners’ several interests and for a judgment for the amount claimed to be due from his copartners. The district court sustained a demurrer to the amended petition, and the case is here for review. 1. Was this action barred by the statute of limitations? There is an implied obligation between general partners that on the termination of the partnership they will account to each other and settle and pay any balances due among themselves. To bring about such accounting and settlement a cause of action will lie. (Norman v. Conn, 20 Kan. 159; Turner v. Otis, 30 Kan. 1, 1 Pac. 19; Clarke v. Mills, 36 Kan. 393, 13 Pac. 569; 30 Cyc. 681, 713; 1 M. A. L., p. 762.) In the petition it was alleged that the partnership business was closed in April, 1908. This action was not begun until September 19, 1913, some five years and five months thereafter. Unless the partnership business was unsettled, and we will consider that later, the plaintiff’s cause of action for an accounting arose April, 1908, and was barred in April, 1911. If, as alleged, his partners owed the plaintiff a balance of money, it too was barred in April, 1911. (Civ. Code, § 17, subdiv. 2.) If there were unsettled accounts, the statute would not begin to run until they were disposed of. (Bushnell, Limitations and Adverse Possession, §§ 57, 66, 67, 207, 208; 2 Wood on Limitations, 3d ed., § 211 and note.) Here, so far as shown by the petition, the only item unsettled, that is, unpaid, was the claim against the railway company for a shipment of goods lost in transit. The plaintiff says that “Walter Campbell of the firm of Campbell & Beeler instructed the plaintiff to collect” that item. It should go without saying that the firm of Campbell & Beeler, an independent firm, had no interest in' the affairs of the partnership under consideration, which was the firm of Brooks, Beeler & Campbell. But laying aside that point as a technicality, let it be considered that Campbell, a partner of the Ardmore firm of Brooks, Beeler & Campbell, instructed the plaintiff, Brooks, to collect the claim against the Missouri Pacific railway. He did not authorize, nor can it be fairly said from the pleadings that he directed that the amount which might be collected from the railway company should be “placed to the credit” of the defunct firm of Brooks, Beeler & Campbell. It seems hardly fair to permit this voluntary payment by Brooks in 1910 to the defunct firm to interrupt the running of the statute of limitations in his own favor. (Hancock v. Cook, 35 Mass. 30.) It would be stretching language unduly to characterize the railway company as a “customer” of the defunct firm. We have examined the authorities cited by appellant. The first was the case of Green v. Williams, 21 Kan. 64, which was largely one of agency, and it was properly held that the statute did not run because there was no demand and refusal to pay and because the agent lived in another state. The other case cited by appellant (Benoist et al. v. Markey, Tutor, et al., 25 La. Ann. 59) is much more to the point. There the firm of Benoist, Shaw, Murphy & Newman had formed a partnership in 1859. Its business was ruined by the civil war, and there was nothing done towards a settlement of the partnership business until 1866, when suit was begun and a receiver appointed upon the application of the parties. Litigation of several years’ duration ensued. This was a plain case where the statute should not be held to begin to run until a settlement of the partnership affairs had been effected and until the partners could have an opportunity to commence proceedings under the judgment settling the respective rights of the liquidating partners. Other cases holding that the statute does not under all circumstances begin to run on the dissolution of the partnership are Holloway v. Turner, 61 Md. 217, Jordan v. Miller and als., 75 Va. 442, and Riddle v. Whitehill, 135 U. S. 621. They relate to partnerships being wound up in due course, realizing assets, satisfying debts, etc. Obviously no statute of limitations would run in such cases. There is, however, apparently no end of authority for holding that the cause of action for accounting and settlement be tween partners arises on the dissolution of the partnership, or in such a case as pleaded by appellant, when “with the consent of the defendants (his partners) he closed out the business when it was found to be unprofitable and plaintiff shipped to the defendants the stock of goods remaining on hand when said business was discontinued.” Some of these authorities which we have examined in detail are: Adams v. Taylor, 14 Ark. 62; Wilhelm v. Caylor, Ex’r of Riael, 32 Md. 151; Codman v. Rogers, 27 Mass. 112; Atwater v. Fowler, 1 Edw. Ch. (N. Y.) 417; Murray v. Coster, 20 Johns. (N. Y.) 576; Appleby v. Brown, 24 N. Y. 143; Coleman v. Second Avenue R. R. Co., 38 N. Y. 201; Dwinelle v. Edey, 102 N. Y. 423, 7 N. E. 422; Gray v. Green, 125 N. Y. 203, 206, 26 N. E. 253; Coalter v. Coalter, 1 Rob. (Va.) 79; Angelí on Limitations, § 69, and' Wood on Limitations, 3d ed., § 211. From the foregoing we must hold that the cause of action for the accounting and settlement on the implied obligation of partners arose when the partnership business was closed out in 1908, and an action thereon filed in 1913 was barred by the statute of limitations (Civ. Code, § 17, subdiv. 2), and the voluntary payment to the defunct partnership in 1910 by the plaintiff did not interrupt in his own favor the running of the statute (52 L. R. A. 707, note 3). The demurrer was properly sustained, and the judgment is affirmed.	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