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Rees, J.: This is an action brought against a firm of insurance agents or brokers and one of its members for failure to procure insurance. Jury trial resulted in a verdict in favor of plaintiff. Defendants’ motion for judgment notwithstanding the verdict was sustained. Plaintiff appeals. At all times material, plaintiff acted by and through its president and principal stockholder, Robert Gensch, a Wichita consulting petroleum geologist. Defendant Insurance Management Associates, Inc., also of Wichita, acted by and through defendant William C. Cohen, Sr. We will refer to the parties as Gensch and Cohen because it is from their conduct that the issues in this lawsuit stem. Our review is circumscribed by the contents of the record on appeal. Because the appeal is from an order sustaining a motion for judgment notwithstanding the verdict, our view of the evidence must be in the light most favorable to Gensch. Apperson v. Security State Bank, 215 Kan. 724, 732-733, 528 P.2d 1211 (1974); Fisher v. Sears, Roebuck & Co., 207 Kan. 493, 494-495, 485 P.2d 1309 (1971). On about February 12, 1976, Gensch and another individual acquired an oil and gas leasehold interest in and to a quarter-section of land in Barber County on which there was a well that was not then producing. The well’s associated above-ground equipment was included in the purchase. Also on the land was a gas line belonging to Central States Gas Production Company, a natural gas producer and purchaser; it lay within about 35 feet of the well. Gensch assumed ownership of 91% of the leasehold interest and property acquired and the other individual held the remaining 9%. Gensch undertook to act as the operator of the lease. Early in the following April, the well was connected to the Central States line. The well was tested into the line. Gas production began. Late in the evening of Monday, April 26, the well caught fire. There followed four days of continued, concerted activity. Gensch called Houston, Texas, for the advice and help of the renowned oil and gas well fire fighter Red Adair. Adair sent two of his men to the site. They arrived Tuesday afternoon. Oil field workers and a substantial quantity of equipment and materials were marshaled and put to work and use. Adair came to the site on Thursday. The fire was finally extinguished Friday afternoon. The above-ground equipment associated with the well was destroyed; there was evidence its value was $15,000. The firefighting costs — for personal services furnished, equipment rental and materials used and consumed — were $35,732.02. On about February 20, 1975, Gensch had contacted Cohen concerning procurement by Cohen of insurance for the lease. Gensch testified he telephoned Cohen. Cohen testified Gensch came to Cohen’s office. At any rate, Gensch’s direct examination testimony on what occurred was as follows: “A. ... I told him that I had an unusually large interest in this lease. I needed complete insurance coverage because of the . . . large interest that I did havé, and that I could — I think the words that I used to him were ‘ill afford to take a bath’ in the event of a problem. “Q. And what did he say? “A. He said that various forms of insurance were available; and I said, ‘Take care of me, Bill. I need complete coverage.’ “Q. Was there anything else said? “A. I think at that time ... he [bound] me on the insurance that he covered me with. He did ask me what kind of a well I had. I explained to him that this was a well that had been producing, that had been temporarily abandoned; that there was equipment on the well involving a pumping unit, pump unit engine, various high-pressure surface fittings, various lead lines, two tank batteries, two stock tanks, a vertical heater treater, and a salt water collection tank; and . . . that I would operate the lease, but that the lease would be pumped by Central States Gas Producing Company, the company that was buying the gas. Since they were doing this up and down their line, it seemed to be a convenient way for me to go, and that I needed the coverage that would protect me with this type of operation. . “Q. Okay. Did you have any other conversations with him prior to April 26th other than what you’ve just told us? “A. I recollect that he talked about workmen’s comp-type of insurance. I didn’t know whether I needed it. He said I did. Since the gas producing company had the people, I called them out there. They said they had adequate coverage for that type of thing. I remember talking to Bill about it. He said that I needed it anyway, and that was before April 26th. “Q. All right. Any others? “A. I can’t think of anything else.” On cross-examination Gensch testified: “Q. Now, did you ever provide to Mr. Cohen or his agency any inventory of [the above-ground] equipment? “A. To the best of my knowledge I did it by phone. “Q. Did you tell him how much everything was worth? “A. I don’t believe that was asked of me, and I do not believe I mentioned the price. He wanted a description of the equipment. I couldn’t give it to him. I sent a production superintendent out there to look at the equipment to describe it to me. He called me, and I reported that to Mr. Cohen. “Q. . . . When did this conversation take place, the one you’re just— “A. When did this take place? “Q. Yeah, yes. “A. To my best recollection it was a response to a request of his when he first talked to me about it. “Q. ... in your discussions you say you had with Mr. Cohen — did [you] at any time . . . tell him how much you had invested in the whole property? “A. No, sir. I did not. “Q. Well, if it be true that at some point in time like you say now that you told him what was on the ground with the equipment, how did you think he was going to write you a fire insurance policy if he didn’t know what it was worth? “A. . . . As to the value of the surface equipment? “Q. Yes. Well, yeah, what you say should have been insured. “A. I don’t remember how we would arrive at that- — -that price. “Q. Well, as a matter of fact, you really never had any meaningful discussion— did you, Mr. Gensch? —with him about this property out there? “A. I absolutely did. “Q. . . . But you didn’t tell him that; did you? “A. I did tell him that. He asked me. “Q. Did tell him what? How much it was worth? That’s just what I asked you. “A. No, sir. I did not tell him what it was worth. “Q. All right. “A. But I did describe the equipment to him because he asked me what I had. “Q. ... So there’s no misunderstanding about this, you never talked to him, never told him what you claim that equipment was worth? “A. I do not recollect that I did.” On redirect examination, he testified: “Q. Did Mr. Cohen ever ask you what the equipment was worth? “A. Not to my knowledge.” Cohen procured from the United States Fidelity and Guaranty Company (USF&G) two policies insuring Gensch. Cohen received the policies about April 10. He billed Gensch on April 13. Gensch paid Cohen by his check dated April 19. As shown by Cohen’s invoices, one policy afforded comprehensive general and automobile liability coverages and the other afforded workmen’s compensation and employer’s liability coverages. Cohen testified that on February 20 he telephoned USF&G and obtained its agreement to bind workmen’s compensation and liability coverages as of that date. Accordingly, the policies were issued with coverage effective February 20, 1976. We find nothing in the record on appeal to contradict our understanding that Cohen did not have underwriting authority and that he was not a general agent. He conducted his business as a so-called independent insurance agent. We assume he had agency agreements with USF&G and perhaps other insurers authorizing him to act as a soliciting agent and providing for commissions on premiums for business produced to be paid him by the insurer or insurers as compensation. He was required to submit to USF&G applications for the issuance of policies for his clients. Cohen had considerable experience and expertise in the business of insurance for individuals in the oil and gas business. He held himself out as having, and Gensch sought him out for, that experience and expertise. Gensch did not designate the insurer or insurers from whom coverages were to be procured. He did not specifically request physical damage coverage or control of well coverage. He either did not read the policies delivered or he did not receive them prior to the fire. He did not complain to Cohen prior to the fire that the coverages under the issued policies were not what or all he wanted. Gensch claims Cohen is liable because he failed to procure physical damage coverage for the above-ground equipment and “control of well” coverage. Physical damage coverage, referred to by Cohen as “leased property” coverage, would have provided for payment by the insurer to Gensch for the actual cash value of the above-ground equipment destroyed. There was no evidence of the cost of this coverage. Control of well coverage would have provided for payment by the insurer to Gensch for his incurred fire fighting costs. Under the evidence, control of well coverage would have been subject to a $25,000 deductible clause, that is, the insurer’s payment obligation to the insured would have been for the payment of fire fighting costs in excess of $25,000. The annual premium for control of well coverage would have been $2,250. At trial, Gensch sought to establish as a loss part of the value of the gas consumed by the fire; evidence of the value of gas consumed by the fire was not admitted. Gensch also testified he suffered a loss of future production, that is, reduced recoverable reserves, resulting from the procedures used to fight and extinguish the fire; there was no probative evidence of the value of this purported loss. The jury was instructed: “INSTRUCTION NO. 4 “If you find from the evidence that by reason of the conversations between [the] principals, Gensch and Cohen herein, the plaintiff selected Cohen and relied upon him to provide the insurance needed for the oil and gas operation in question, then you are instructed that it was the obligation of Cohen and his principal, Insurance Management Associates, Inc., to use such care and skill in the selection of coverage forms as would have been reasonably used by an ordinarily skilled insurance agent acting under similar circumstances in the city of Wichita, Kansas. “Failure of the defendants to provide specific kinds of insurance would not render them liable for losses which might have been covered by such insurance unless that insurance would have been provided by a reasonably prudent insurance agent under the facts and circumstances shown to have existed in this case. “INSTRUCTION NO. 5 “If you find that the defendants failed to provide a particular kind of insurance which should have been provided under the instructions heretofore given you, you are instructed that the plaintiff may recover from the defendants only so much as could have been recovered from appropriate insurance, less the premiums which would have been charged for that insurance. You are instructed that there is no evidence in this case that ‘control of well’ insurance could have been provided without a $25,000.00 deductible clause.” These are the only instructions made a part of the record on appeal by the parties. Cohen moved for a directed verdict at the close of Gensch’s evidence. The motion was overruled. He again moved for a directed verdict at the close of all the evidence; the motion was taken under advisement. See K.S.A. 60-250(¿>). The jury returned its verdict in favor of Gensch in the amount of $25,732.02. We and the parties construe the verdict to be for the loss of the above-ground equipment and the fire fighting costs, $50,732.02, less the deductible, $25,000. It is evident the jury, in accord with instruction No. 5, did not award damages for other loss. Following argument, the trial judge, on his own motion, reduced the verdict by $2,000, an amount he selected for the cost of insurance. He then set aside the reduced verdict of $23,732.02 and entered judgment in favor of Cohen as sought by the motion for a directed verdict made at the close of all the evidence. The position taken by Cohen at the post-trial hearing was that there was no agreement between Gensch and Cohen sufficiently definite to create a duty to procure physical damage coverage for the above-ground equipment and control of well coverage. Cohen’s argument was bottomed on Mooney v. Merriam, 77 Kan. 305, 94 Pac. 263 (1908). The trial judge expressed uncertainty as to the state of Kansas law applicable to the case and, when sustaining Cohen’s motion, commented his decision was substantially a choice of which party would be the moving party on appeal. Needless to say, Gensch’s first argument to us is that he should have been granted judgment on the jury verdict. This case is not an action on a contract of insurance. It is not an action for failure to renew insurance. It is an action for failure to procure insurance. The first and principal issue for determination is what duty, if any, did Cohen owe Gensch. If a duty is found, there then follows the question whether there was evidence sufficient to support the jury verdict for Gensch. There is a large body of law on the subject of liability of insurance agents or brokers for failure to procure insurance. The annotations at 29 A.L.R.2d 171, 64 A.L.R.3d 398, 72 A.L.R.3d 704, and 72 A.L.R.3d 747 lead one to cases on the subject. Understandably, we are most concerned with the pronounced law of Kansas and we will recapitulate in generally chronological order the most relevant Kansas cases to date. In Latham v. Harrod, 71 Kan. 565, 81 Pac. 214 (1905), the defendant insurance agents procured fire insurance coverage by an insolvent foreign insurer not authorized to do business in Kansas; The insured’s goods were destroyed by fire. An action on the policy was unsuccessfully prosecuted against the insurer in the state of its domicile. The Kansas action against the insurance agents followed. The recovery sought was the amount of the policy. Relying upon statutory proscriptions, it was held the insurance agents could be held personally liable. Judgment for nominal damages was reversed and a new trial was ordered. The opinion resulting from a second appeal in the case, Harrod v. Latham, 77 Kan. 466, 95 Pac. 11 (1908), is not presently material. By the later opinion, a judgment for the insured for the amount of the policy entered on a directed verdict was reversed; the reason given was that even though the trial evidence was uncontradicted, it was for the jury to decide the case. The decision most strenuously relied upon by Cohen is Mooney v. Merriam, 77 Kan. 305. We will discuss it later. In Rezac v. Zima, 96 Kan. 752, 153 Pac. 500 (1915), it was alleged that upon the defendant insurance agents’ solicitation and plaintiff’s direction defendants agreed to procure insurance on plaintiff’s barn which later burned. The plaintiff appealed from trial court refusal of his evidence. It was held that under the plaintiff’s allegations “the agreement is an enforceable one and the defendants are responsible for the loss sustained through their neglect and wrong”; the case was remanded for trial. 96 Kan. at 756. It is said in the opinion: “This action was not brought to recover upon a contract of insurance against the insurer, but is an action against the defendants for the failure to procure insurance on his property as they had undertaken to do, and for wrongfully representing that insurance had been procured when in fact it had not, as a result of which a considerable loss had been sustained. A broker or agent who undertakes to procure insurance for another is bound to exercise reasonable diligence to obtain insurance in accordance with his agreement and to notify his principal if he is unable to do so. According to the averments in the petition the defendants failed to perform this duty, and, as has been alleged, Zima deliberately deceived the plaintiff by giving him assurance that the property had been insured when he knew that no insurance had been procured. If defendants had informed plaintiff of the omission or failure he could have obtained insurance elsewhere and have provided against loss. It does not appear that a particular insurer was named, but it was agreed that insurance should be obtained in a responsible company. If defendants had failed to exercise reasonable care in the selection of an insurer and had placed the insurance with a company that was insolvent or one not authorized to insure, and subsequently the property had been destroyed and the plaintiff had been unable to realize on the policy, the defendants would have been liable. (Latham v. Harrod, 71 Kan. 565, 81 Pac. 214; Harrod v. Latham, 77 Kan. 466, 95 Pac. 11.) Brokers are equally liable where they undertake to procure insurance and utterly neglect to obtain any insurance or fail to carry out material provisions of their agreement and a loss results. In such a case they are liable for as much as would have been covered by the insurance which they agreed to procure.” 96 Kan. at 754-755. In Cushenberry v. Grecian, 112 Kan. 778, 779, 212 Pac. 681 (1923), an action against an insurance agent for failure to procure insurance on a house that was later destroyed by fire, it was held; “The policy of insurance was to have been for $400. When the property burned that was the amount the plaintiff was entitled to receive.” Even though interest was recoverable under the instruction held not erroneous, the case is not authority for the proposition that more may be recovered than what would have been owed under the insurance not procured. There is no mention of interest either in the opinion or the appellate briefs; the proposition cannot be considered to be a question decided. In Smith v. Hartford Fire Ins. Co., 120 Kan. 53, 242 Pac. 455 (1926), there is language alluding to the possible liability of the insurer’s agent if an agreement to procure insurance had been made. The case is not of present precedential value because it was an action brought against an insurer on an alleged agreement to insure; whether there was an actionable claim for failure to procure insurance was not an issue decided. In Rosedale Securities Co. v. Home Ins. Co., 120 Kan. 415, 243 Pac. 1023 (1926), the action was against an insurer on an auto theft policy. Involved was the question whether the client for whom a broker procured the policy was bound by knowledge of a policy condition that was or should have been known to the broker. The opinion approves the definition of a broker as one who is engaged in the business of procuring insurance for persons applying to him for that service. 120 Kan. at 419. It also is authority for the proposition that an insurance broker is the agent of his client, the insured, in matters connected with the procurement of insurance but he is usually regarded as an agent of the insurer for the purpose of collecting and remitting the premium and delivering the policy. 120 Kan. at 418. Price, Administrator v. Holmes, 198 Kan. 100, 422 P.2d 976 (1967), holds nonrepugnant causes of action in contract and in tort arising out of the same transaction may be prosecuted in a single lawsuit. 198 Kan. at 103-104. In Stamps v. Consolidated Underwriters, 205 Kan. 187, 197, 468 P.2d 84 (1970), an action for reformation of an insurance policy, it is stated: “Ordinarily a broker or agent who is employed to procure insurance becomes the agent of the person for whom the insurance is procured. (43 Am. Jur. 2d, Insurance, § 149, p. 203; Rosedale Securities Co. v. Home Ins. Co., 120 Kan. 415, 243 Pac. 1023) “There are many exceptions to the rule, however, and the question cannot be answered absolutely, but depends upon the circumstances of the particular case. For some purposes and under certain circumstances, a broker may represent either the insured or insurer, or both. (43 Am. Jur. 2d, Insurance, § 149, p. 203)” Keith v. Schiefen-Stockham Insurance Agency, Inc., 209 Kan. 537, 498 P.2d 265 (1972), is a failure to procure insurance case in which it was held the petition stated a claim upon which relief could be granted. Plaintiffs sought recovery against an insurance agency for its failure to procure workmen’s compensation insurance and to cause an election to be filed. Plaintiffs prosecuted the action as third party beneficiaries of agreements between their decedents’ employer and the insurance agency. In the opinion it is noted a plaintiff has a right to plead alternate tort and contract causes of action arising out of a single transaction. 209 Kan. at 539-540. Also in the opinion is the following: “This court follows what appears to be the general rule that a broker or agent who undertakes to procure insurance for another and thereafter the broker neglects or fails to do so, he will be held liable for any damage resulting therefrom. The liability of the agent or broker in such a case rests on the theory that he is the agent for the insured in negotiating for a policy and has a duty to exercise reasonable care, skill and diligence in effecting the insurance, and may be sued for breach of contract or negligent default in the performance of a duty imposed by contract. (43 Am. Jur. 2d, Insurance, § 174, pp. 230-231.)” 209 Kan. at 540-541. The opinion says the Kansas law in regard to an action against an insurance broker was enunciated in Rezac v. Zima, 96 Kan. at 752, and sets forth the Rezac language we have previously quoted. 209 Kan. at 541. The most recent relevant case is Marker v. Preferred Fire Ins. Co., 211 Kan. 427, 506 P.2d 1163 (1973), an action against an insurance company and one of its agents for loss resulting from tornado damage to real property. Insurance coverage lapsed on the expiration of a policy term and plaintiff’s problems arose because there was no renewal. In the opinion we find it said: “The thrust of plaintiff’s argument [that the agent is liable because he breached a contractual obligation to notify plaintiff of the expiration date of the lapsed policy] is that if an insurance agent promises his client that he will notify him at the time a policy expires and fails to do so, then the agent is responsible to the client for any loss suffered. In support of this position plaintiff relies upon the well-established principle of law that an insurance agent or broker who undertakes to procure insurance for another and thereafter neglects or fails to do so, will be held liable for any damage resulting therefrom. There are a number of cases in Kansas which support this general rule. [Citations omitted.] For many cases from other jurisdictions see the extensive annotation in 29 A.L.R.2d 171. “The theory of liability in such cases is based upon contractual obligations arising out of the relationship of broker and insured. In determining the obligations of a broker to the insured the general rules pertaining to the law of contracts should be applied including the cardinal rule that a binding contract can not come into existence unless there is a consideration for the same. “Where a broker is employed to procure insurance for a client, the decisions recognize the necessity of a consideration for the broker’s promise in order for the broker to be bound thereby. Where there is no consideration passing to an insurance broker for his undertaking to procure insurance it is generally held that there is no liability for a failure to accomplish such procurement. The consideration which flows to the broker in return for his promise to procure insurance is said to be the expectation of the broker of receiving a commission or profit when the insurance policy is obtained. The agreement by the proposed insured to pay the premium and accept a delivered policy is a real and not just a technical consideration in exchange for the promise to procure insurance.” 211 Kan. at 431-432. “In every case where an insurance agent has been held liable for failure to procure insurance or renew a policy or give notice of the expiration date of an existing policy, the relationship of broker and client has been established with mutual obligations arising from that relationship.” 211 Kan. at 433. In that part of Marker now of interest, the conclusion reached was that under the facts the relationship of broker and client never existed and the agent was not liable on a theory of contract. 211 Kan. at 433, 434. The remaining Kansas opinion for consideration is Mooney v. Merriam, 77 Kan. 305. There, an action was brought against a firm of insurance agents. The opinion opens with a statement that the action was for breach of an “agreement to write an insurance policy.” 77 Kan. at 305. In affirming a trial court ruling that sustained a demurrer to the plaintiff’s evidence, it was held the evidence was not sufficiently definite to establish that an agreement was made—the evidence was deficient in failing to show with reasonable certainty the terms and conditions of the alleged agreement. 77 Kan. at 307. While we do not question the general rule that to prove the existence of an agreement there must be evidence of reasonable definiteness that there was a meeting of the parties’ minds upon subject matter and terms, we believe the importance of Mooney in resolution of the case before us is not so great as that urged by Cohen. We are convinced the Mooney court did not address the case as one for failure to procure insurance. Latham v. Harrod, 71 Kan. 565, is not mentioned. Each case cited as authority concerns an action brought on a contract of insurance or an equivalent, a contract for insurance or to insure. Contracts of insurance and their equivalents are agreements between an insured and an insurer. An agreement to procure insurance is an agreement between a client and an insurance agent or broker. That Mooney was considered as one involving a contract to insure is demonstrated by the statements that: “According to the evidence the defendants are not brokers of insurance, but agents representing certain insurance companies. The law will not permit them to represent both the insurance company and the insured in the same transaction. Plaintiffs concede this to be the law .... “Counsel for plaintiffs concede that the law is well settled that one who agrees as agent of a certain insurance company to write a policy acts for the company, and may make his principal liable for his neglect or failure, but does not become liable himself. The reason for the rule is . . . that if he acts as agent of the company he cannot act as agent of the assured in the same transaction.” 77 Kan. at 309. Further, the decision describes the indefinite and uncertain terms — “subject matter of the policy, the risk insured against, the duration of the risk, the amount of the insurance, and the premium to be paid.” 77 Kan. at 310. These are the typical specifics of a contract of insurance, an insurance policy. We are aware the authors of the annotations appearing at 29 A.L.R.2d 171, 180, and 64 A.L.R.3d 398, 456, and perhaps others, have categorized Mooney as an agreement to procure insurance case. Nevertheless, we believe it is the author of the annotation appearing at 15 A.L.R. 995, 1005, who is correct; he treats Mooney as a contract of insurance case. Consideration of the previously quoted language of Mooney discloses another reason for distinguishing that case from the one before us. The proposition that an insurance agent may never act as a dual agent in a transaction is no longer an absolute rule. Rosedale Securities Co., 120 Kan. at 418; Stamps, 205 Kan. at 197. In Rezac, one of the failure to procure insurance cases reviewed and which, according to Keith, enounces our law in such cases, Mooney was distinguished, not on the ground that it was a contract to insure case, but instead by finding that Rezac’s agreement was sufficiently definite and comprehensive. In doing so, the Rezac court said it was to be deemed that the duration of the risk and the premium terms were contemplated by the parties to be according to “well-known standards.” This permitted incorporation of “well-known standards” as implied terms of Rezac’s agreement. 96 Kan. at 755-756. We believe the Rezac court could have adequately distinguished Mooney simply by identifying it as what it is, a contract to insure case, not a failure to procure insurance case. From the decisions discussed, we conclude an insurance agent or broker who undertakes to procure insurance for another owes to the client the duty to exercise the skill, care and diligence that would be exercised by a reasonably prudent and competent insurance agent or broker acting under the same circumstances. We will refer to this as the exercise care duty. It has been explicitly stated an action for the breach of this duty may be brought in contract or in tort. Although no Kansas cases reveal particular exposition of legal analysis for the ability to bring the action on these alternative theories, it might be said the duty is both an implied contractual term of the undertaking (contract duty) and a part of the fiduciary duty owed the client by reason of the principal-agent relationship arising out of the undertaking (tort duty). Despite all too familiar usage of the term “negligent breach of contract,” if there is a breach of contract, there is a breach of contract whether because of intentional conduct, inability to perform, accident, negligence, or whatever. It is inappropriate to denominate the available contract cause of action as one for negligent breach of contract. In the case before us, we perceive no need to identify or require Gensch to declare or elect that his chosen cause of action is in contract or in tort. There is no statute of limitations problem and there is no demonstration that under the evidence Gensch’s recoverable damages would be measured differently if sought on one theory rather than the other. Cohen contends he is not liable as a matter of law. He repeats to us his argument that met with success before the trial judge. It uses Mooney as its touchstone. It is that an undertaking to procure insurance requires and is a matter of agreement, the existence of which must be proved by evidence of reasonable definiteness that there was a meeting of minds upon subject matter and terms as well as evidence of consideration. It is urged that Gensch’s statements or request was nothing more than “take care of me, Bill. I need complete coverage. I can ill afford to take a bath.” Cohen argues Gensch’s testimony is fatally indefinite proof of a meeting of the minds. Needless to say, the characterization of Gensch’s version of the parties’ conversation is somewhat extreme. We are unable to accept Cohen’s argument. Our previous rather extensive discussion of reasons for distinguishing Mooney will not be repeated. Reasonable implication may be utilized to prove the subject matter, terms and consideration for an agreement to procure insurance. In Rezac, it was deemed that within the contemplation of the parties at the time of their agreement were the “well-known standards” of term of insurance and premium amount. 96 Kan. at 755-56. As Mooney observed less strict proof of the agreement may be tolerated for agreements to renew insurance because they frequently are oral (77 Kan. at 310), we similarly believe less strict proof is required for an oral agreement to procure insurance than for a contract of insurance. After all, in cases such as this, the terms of the contract of insurance and its cost are within the field of expertise of the agent or broker and it is for this expertise that the agent or broker is sought out. Cohen did not find himself unable to proceed without a more complete and detailed understanding. By instruction No. 4, the existence of the exercise care duty required the jury find nothing more than that Gensch selected and relied upon Cohen. No objection in compliance with K.S.A. 60-251(b) was made to the instruction. It strikes us there is some inconsistency to not lodge objection to the instruction and then to argue to the trial judge after trial and to us that greater definiteness was required. As to consideration, one who requests or directs an insurance agent or broker to procure insurance must be deemed to obligate himself — promise—to pay the reasonable cost of the insurance to be procured. This and the agent or broker’s expectation of compensation fulfills the requirement for agreed compensation. However the February 20 and possibly later conversations may be described, it cannot be denied Cohen undertook procurement of insurance for Gensch—he procured insurance affording Gensch liability and workmen’s compensation coverages. Cohen cannot seriously argue he acted without the expectation of compensation either by direct payment from the client, Gensch, or by commission upon the obtaining of insurance policies. Having been paid by Gensch for the premiums for the insurance procured, the argument is particularly unrealistic. There was consideration for his undertaking. Contrary to argument made to us by Cohen on the question of dual agency, an insurance agent or broker who undertakes to procure insurance ordinarily is the agent of the client in matters connected with the procurement of the insurance; he may act as the agent of the insurer for other purposes; he may represent either the client or the insurer, or both. In sum, we are unable to conclude that as a matter of law Cohen did not owe the exercise care duty. Assuming the existence of the duty, there remains the question whether the evidence supports a conclusion the duty was breached. Cohen argues the expert testimony at trial requires the conclusion there was no breach. Two Wichita insurance agents or brokers testified on Cohen’s behalf. Each testified he had never sold control of well coverage for a Kansas oil and gas well. Control of well coverage is in demand, has a market elsewhere, e.g., Texas, where wells are deeper. One of the witnesses was directly questioned whether he normally recommended control of well coverage. The trial transcript reflects the inquiry and response as follows: “Q. Mr. Harrison, in your handling of things in the insurance business, when we’re talking about Kansas lease and existing well, do you normally recommend this ‘control of well’ coverage to people? “A. It’s difficult — Maybe it’s a difficult thing to answer. I probably — Let me say this: I have never had anybody that I’ve talked to ever take it in Kansas. Whether I would — might discuss with them or — I just don’t know at the moment what would be the answer to that because it’s — it’s just an unusual coverage that we don’t have any market for in Kansas and — at least it hasn’t been so in our office. “Q. Yeah, thank you. “A. Maybe we’re not up on it.” Cohen testified he did not remember telling Gensch control of well coverage was not available in Kansas; he does not recom mend it to clients; it was neither recommended nor even mentioned to Gensch; its cost and deductible feature make it “not economically feasible”; “[w]e have quoted it on several occasions. Nobody ever buys it. In fact, I don’t know of one policy written exclusively on Kansas operations”; the coverage is “written” through specialty companies. Gensch had testified that after the fire and in connection with his rework of the well, he inquired of Cohen as to what type of insurance he should acquire in the event a similar incident occurred. He was told control of well-type coverage was not available. Nevertheless, he subsequently obtained control of well coverage for the well, first under a certificate of insurance obtained from Houston, Texas, and later under a policy obtained through a local firm. Viewing the evidence most favorably to Gensch and recogniz-. ing the jury was entitled both to believe or disbelieve witnesses as they chose and to draw reasonable inferences from the evidence, we are unable to conclude the evidence demands the conclusion Cohen did not breach his exercise care duty. The question was for resolution by the jury. We conclude the trial judge erred when he set aside the reduced jury verdict and entered judgment for Cohen. As his second issue on appeal, Gensch complains the trial judge erred in giving instruction No. 5. The argument is the jury was erroneously prohibited from including loss of production as a part of its verdict. According to Gensch, the jury should have been afforded the latitude to return a verdict compensating him for (1) the value of gas consumed by the fire which would not have been lost had insurance been available to defray the cost of a method of extinguishing the fire that would have taken less time; and (2) the value of the loss of future production from the well, reduction of recoverable reserves, said to have been caused by the fire extinction method used, a method assertedly required because the nonexistence of control of well coverage made it financially impossible to use a more expensive method that would have had no or less effect upon future production. As to the claim for the first of these damages elements, there was no supporting evidence. Gensch’s testimony that $50,000 worth of gas was consumed by the fire was stricken by the trial judge; it was hearsay; it was testimonial recitation of an out-of- court declaration by Red Adair who was not present at trial and available for cross-examination. See K.S.A. 60-460. No argument is made to us that the trial judge erred in striking the testimony and there is not a shred of evidence the fire could have been more promptly extinguished. As to the claim for the second of these damages elements, there was no sufficient supporting evidence. Counsel tried to qualify Gensch as a witness competent to testify regarding future production. The trial judge ruled Gensch was not qualified. We agree with the ruling; Gensch conceded his field of expertise to be that of oil and gas geology and not oil and gas engineering. See K.S.A. 60-456(b). Further, it is not argued on appeal that the ruling of the trial judge was erroneous. On the evidence in the record, a control of well policy excludes responsibility for payment for “loss of production.” Because of the failure of the evidence to support either of the two elements of Gensch’s loss of production claim, it is not necessary that we decide whether the exclusion would apply to both damages elements, or if only one, which one. Complaint that the trial judge erred in reducing the jury verdict by $2,000 is asserted by Gensch as his third issue on appeal. We agree the trial judge erred. However, the error is in the amount of the reduction; it does not lie in the fact the trial judge made a reduction. The jury did not heed that part of instruction No. 5 directing the subtraction of insurance cost. Instructing the jury that they make that subtraction was not objected to by Gensch. See K.S.A. 60-251(b). Had Cohen procured control of well coverage, the annual premium would have been $2,250; the effective date would have been February 20, 1976; and as of the date of the fire, April 26, 1976, there would have been earned premium for 67 days. We conclude the proper amount of reduction was $411.89 (annual premium ÷ 366 days x 67). The decision of the trial judge sustaining defendants’ motion for judgment notwithstanding the verdict is reversed. The case is remanded with directions to enter judgment in favor of plaintiff in the amount of $25,320.13.	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Meyer, J.: This case involves an enforcement of custody order under the Uniform Child Custody Jurisdiction Act. Appellant and appellee were granted a divorce in 1973 in California and the court in that state granted custody of the parties’ children (now ages 9 and 13) to appellee, the custody order providing that appellee not take the children from California without permission of the court. About the last two weeks of August, 1978, appellee moved to Osage County, Kansas, bringing the children with her. Appellant filed an order to show cause in the California court September 18, 1978, which eventually led to a hearing in California on January 15, 1980. The California court notified appellee of the date set for hearing, and appellee, appearing by her attorney, requested the California court to grant her a continuance, alleging that one of her children was ill. Evidence in the court below included an affidavit of her doctor to the effect that during the time of the California hearing the child was suspected of having appendicitis, that the child should not then make the trip to California, and that appellee, on his advice, should remain in Kansas with the sick child. The California court refused to grant a continuance, proceeded to hear the matter, granted appellant temporary custody, and stated the matter would be reheard upon motion of appellee. Appellant, on January 22, 1980, filed a petition in Osage County, Kansas, asking for enforcement of the California order. The Kansas court declined to grant the prayer of the petition, hence this appeal. The Uniform Child Custody Jurisdiction Act specifies a certain procedure for enforcing a custody decree of another jurisdiction. K.S.A. 1980 Supp. 38-1315 provides: “(a) A certified copy of a custody decree of another state may be filed in the office of the clerk of any district court of this state. The clerk shall treat the decree in the same manner as a custody decree of the district court of this state. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this state. “(h) A person violating a custody decree of another state which makes it necessary to enforce the decree in this state may be required to pay necessary travel and other expenses, including attorneys’ fees, incurred by the party entitled to the custody or such party’s witnesses.” K.S.A. 1980 Supp. 38-1313 provides: "The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this act or which was made under factual circumstances meeting the jurisdictional standards of the act, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this act.” K.S.A. 1980 Supp. 38-1302(d) defines “custody decree” as “a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree.” K.S.A. 1980 Supp. 38-1302(c) defines “custody proceeding” to include “proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings.” K.S.A. 1980 Supp. 38-1302(b) defines “custody determination” as “a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person.” It is noted that the act itself does not specify whether temporary custody orders are included, and we have found no Kansas case in point relative to the specific issue as to whether the terms of that act are meant to include temporary orders. At the outset we might note that, as argued by counsel for appellant, all custody orders are by their nature temporary in effect. However, in the instant case, the situation is more specific in that the California court’s order concluded with this statement: “This matter to be reset on noticed motion of the respondent.” In the absence of Kansas case authority, our search of foreign authorities has led us to the case of McDonald v. McDonald, 74 Mich. App. 119, 253 N.W.2d 678 (1977). In McDonald, the Michigan Court of Appeals, while holding that Washington was the proper forum for exercise of jurisdiction, refused to enforce a temporary custody order entered by the Washington court. The court cited the Commissioner’s Note to § 15 of the uniform act, 9 ULA 99, p. 124, which stated: “ ‘The authority to enforce an out-of-state decree does not include the power to modify it. If modification is desired, the petition must be directed to the court which has jurisdiction to modify. . . . This does not mean that the state of enforcement may not in an emergency stay enforcement if there is danger of serious mistreatment of the child.’ ” (Emphasis in original.) 74 Mich. App. at 131. The court, under facts similar to those now before us, held that enforcement of the temporary custody award would result in serious harm to the child. In McDonald, divorce proceedings were originally commenced by the child’s mother in Washington, and the father was awarded temporary custody. After that the father and mother reconciled and the Washington proceedings were dismissed. The mother then took custody of the child unilaterally and came to Michigan. The father filed for divorce in Washington and was granted temporary custody. The Michigan Court of Appeals noted that if the Michigan court enforced the order granting temporary custody to the father, and if the Washington court finally decided the custody issue in favor of the mother, the Michigan court would have caused the child needless trauma. The court further noted that the repeated transfer of the child from one parent to another cannot have anything but an adverse psychological impact on the child and the court refused to contribute to this. The court stated that while it did not condone the mother’s conduct in taking the child out of the jurisdiction, the court would not make an innocent two-year-old child a means of punishment. The court, therefore, declined to enforce the temporary order of the Washington court until a final adjudication as to custody had been made by the Washington court. Some of the general purposes of the act which would be served by denying enforcement of the order are stated in K.S.A. 1980 Supp. 38-1301(a)(1) and (4): “(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being; “(4) discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.” We pause to note that appellee mother has had custody of both the children herein, now aged 13 and 9, continuously since the granting of the original divorce in 1973. We conclude that what was said in McDonald relative to making an innocent child a means of punishment of the mother is particularly appropriate to the case at hand. Furthermore, in the instant case we have a situation where the California court specifically determined that the custody would be temporary, because of the closing statement of its order (cited verbatim above) which makes it clear that a further hearing would be held, presumably promptly, upon application for a hearing on the part of the mother. Thus we have a situation, again quite analogous to that of McDonald, where there is a distinct possibility of the children being forced to return to California for a brief period until another hearing is had, whereupon it would appear highly possible that they would again be returned to Kansas. Under all of the facts of this case we conclude that these children should not be subjected to such a “shuttle” situation. While generally we believe temporary orders are enforceable under the act, the trial court should have discretion to stay enforcement if such enforcement would operate to cause serious harm to the child. There was no error in the trial court’s refusal to enforce this particular order. Affirmed.	[ -80, -32, -11, 108, 10, -31, 123, 48, 106, -77, 101, 83, -17, 99, 20, 121, 74, 47, 113, 113, -61, -77, 70, 65, -14, -13, -79, 93, -1, 127, 108, -74, 72, 48, 10, -43, 70, -53, -107, -104, -50, 6, -119, -24, 89, 2, 48, 105, 18, 15, 113, -81, -79, 42, 59, -13, -84, 104, -69, -91, -119, -12, -97, 21, 127, 2, -77, 20, 0, 4, 64, 123, -104, 25, 35, -24, 51, -74, -98, 118, 71, -37, -96, 36, 70, 33, 44, -27, -68, 8, 47, 51, 13, -90, -109, 88, 106, 6, -74, -75, 116, 22, 11, -6, -23, 69, 63, 100, 2, -49, -108, -101, -99, 82, 44, 3, -25, -95, 33, 17, -61, -90, 92, -58, 49, -101, -50, -38 ]
McLaughlin, J.: Plaintiffs filed an action against the defendant alleging negligence or breach of contract because of problems with their business telephone service. At times during 1977 the plaintiffs discovered that customers could not reach their business by dialing the assigned telephone number. The plaintiffs alleged damages due to possible loss of profits and damage to business reputation. Defendant, a regulated public utility, answered that the Kansas Corporation Commission had exclusive jurisdiction over such an action and, as such, the action must be dismissed. The trial court dismissed the action and plaintiffs appeal. This is a case of first impression in Kansas. In essence, the trial court ruled the KCC had primary jurisdiction over the plaintiff’s action. Primary jurisdiction has been defined as a determination of whether a court or an administrative agency has the authority to make an initial rather than a final decision. Marine Terminal v. Rederi. Transatlantic, 400 U.S. 62, 68, 27 L.Ed.2d 203, 91 S.Ct. 203 (1970); Sunflower Elec. Coop. v. Kansas Power & Light Co., 603 F.2d 791, 796 (10th Cir. 1979); K. Davis, Administrative Law Text § 19.01, p. 373 (3rd ed. 1972). This determination is made by the court’s evaluation of the need or lack of need for administrative judgment. Sunflower Elec. Coop. v. Kansas Power & Light Co., 603 F.2d at 796; K. Davis, Administrative Law Text § 19.06, p. 381 (3rd ed. 1972). The authority of the KCC rises from Chapter 66, Article 1 of the Kansas Statutes. K.S.A. 66-111 provides that the KCC should act when a party brings a written complaint alleging, inter alia, that the “service performed ... by such public utility ... is unreasonably inadequate, inefficient, unduly insufficient or cannot be obtained . . . .” However, K.S.A. 66-156 states: “The corporation commission shall have the general supervision of all public utilities and common carriers, and of all persons, companies or corporations doing business as public utilities or common carriers in this state, as defined in Laws of 1911, chapter 238 [“], and amendments thereto; and shall inquire into any neglect or violations of the laws of this state by any person, company or corporation engaged in the business of operating a public utility or common carrier therein, or by the officers, agents or employees thereof; and shall also from time to time carefully examine and inspect the condition of each public utility and common carrier, and of its equipment and the manner of its conduct and the management with reference to the public safety and convenience. Nothing in this section shall be construed as relieving any public utility or common carrier from its responsibility or liability for damage to person or property.” (Emphasis supplied.) Kansas has no case law regarding the issue on appeal but the Florida Supreme Court has dealt with a case with almost identical facts. In Southern Bell T. & T. Co. v. Mobile America Corp., Inc., 291 So. 2d 199 (Fla. 1974), plaintiff Mobile sued defendant telephone company for negligent failure to comply with statutory duty to provide service. The plaintiff sought money damages because prospective customers were unable to contact the plaintiffs due to faulty telephone service. The plaintiffs also sought damages for poor service in the past. The trial court dismissed the suit, ruling the plaintiffs must first pursue remedy from the Florida Public Service Commission (PSC) under statute. The Florida appellate court reversed, holding the PSC was not authorized to adjudicate damages for negligence, making administrative action futile and thus unnecessary. The Florida Supreme Court affirmed the appellate court decision, holding such an action is inherently judicial. The Supreme Court held a trial court might seek PSC opinions when evidence is technical, but only the court could make the actual findings. Defendant cites numerous Kansas cases supporting the contention that this action must first be brought before the KCC. Each case offered is readily distinguishable since the factual issues presented involved sophisticated technological facts, e.g., Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 482 P.2d 1 (1971); or involved the issuance of licenses by the KCC, e.g., Pelican Transfer & Storage v. Kansas Corporation Commission, 195 Kan. 76, 402 P.2d 762 (1965); or concerned rate orders, e.g., Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P.2d 515 (1963). Implicit in all of these actions was the consideration of the general public welfare and the ability of the KCC to fashion some rule, rate or remedy. The import of K.S.A. 66-101 et seq. indicates no administrative remedy exists for a party where the dispute is essentially private. Where there is no administrative remedy, the litigant may proceed directly to district court. Cf. Beaver v. Chaffee, 2 Kan. App. 2d 364, 369, 579 P.2d 1217 (1978). Further private litigants have, in the past, proceeded directly to district court in breach of contract and negligence actions against public utilities. E.g., Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 549 P.2d 903 (1976). Finally, there is no need for administrative guidance. The questions put to the district court are inherently judicial, i.e., was there breach of contract? Was there negligence? Cf. Sunflower Electric Coop. v. Kansas Power & Light Co., 603 F.2d 791 (in an anti-trust action against a public utility, the federal district court has primary jurisdiction when question involves restraint of trade and award of attorney fees); see also K. Davis, Administrative Law Text § 19.06, p. 381 (3rd ed. 1972). The order of the district court dismissing this action is reversed and the case is remanded for trial on the merits.	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Spencer, J.: This is an action in which plaintiff is seeking damages from defendant for injuries to a registered Brangus bull, resulting from a fight with defendant’s bull on plaintiff’s land. Trial to the court resulted in judgment for plaintiff and defendant has appealed. Stipulated facts are: “2. Plaintiff and defendant were adjoining landowners in Leavenworth County, State of Kansas, and at all relevant times a fence was constructed and maintained along the entire property line between the property owned by plaintiff and the property owned by defendant; that said fence was a legal and sufficient partition fence under the terms of the fence law set out at K.S.A. 29-101 through 29-104. “3. That the damages sought by plaintiff against defendant are for injuries to said bull which occurred on or about June 28, 1974, and resultant damages. “4. Both plaintiff and defendant maintained the fence between their properties by regularly inspecting and repairing any damage discovered. After the occurrence in question, both parties inspected the fence and failed to find any breaks or other defects.” The conclusion of the trial court was in substance that the owner of an animal which trespasses on land of another, which is protected by a legal fence, is liable for the resulting damage without proof of fault. The amount of damage recoverable is not limited to damage to crops. We concur. It is to be noted that we are not here concerned with what is commonly referred to as the “herd law,” K.S.A. 47-301 et seq. Leavenworth County did not adopt the “herd law” until September, 1978. Moreover, the trial court found and the parties stipulated that the injuries to plaintiff’s bull were not the result of negligence on the part of defendant. Such being the case, it cannot be said that defendant’s bull was “running at large.” See Cooper v. Eberly, 211 Kan. 657, Syl. ¶ 5, 508 P.2d 943 (1973). We are, however, concerned with the statutes regarding legal enclosures, or what are commonly referred to as the “fence laws.” We take special note of the stipulated fact that, at all relevant times, the fence constructed and maintained along the entire line between the properties owned by these parties was a legal and sufficient partition fence under the provisions of K.S.A. 29-301 et seq., which both parties regularly inspected and maintained. Defendant’s theory in this matter is somewhat difficult to grasp. However, he argues the intent and purpose of the “fence laws” were for the protection of crops and have no application to impounding animals. He suggests that, if the purpose of our “fence laws” was more than protection of crops, the requirements of the “herd law” serve no purpose, and the enactment of the latter was a clear indication of legislative intent that an owner of livestock should be liable for damages occasioned by the trespasses of such stock only when the owner is found to have been negligent. At common law, an animal owner was held strictly liable for all damages caused by his animal’s trespass. See Miller v. Parvin, 111 Kan. 444, 447, 207 Pac. 826 (1922). As stated in Casad, The Kansas Law of Livestock Trespass, 10 Kan. L. Rev. 55, 56 (1961): “This rule of strict liability in effect imposed upon the animal owner or possessor a duty to keep the animal off the lands of another at his peril. This duty was not satisfied by the exercise of reasonable care: if the animal trespassed, the owner or other person charged with the animal’s control was liable even though he may have been entirely without fault.” In McAfee v. Walker, 82 Kan. 182, 185, 107 Pac. 637 (1910), it is stated: “The common law places the responsibility wholly upon the owner of animals to keep them from his neighbor’s premises, and makes him liable for any injury resulting from his failure to do so. The fencing act [citations omitted] changes the rule and requires the neighbor to protect himself from such injury up to a certain point by erecting a fence of a fixed power of resistance.” See also Railway Co. v. Olden, 72 Kan. 110, 112, 83 Pac. 25 (1905); Union Pac. Ry. Co. v. Rollins, 5 Kan. *167 (1869). The “fence laws” were followed by the enactment of the “herd law.” While the purpose of the “fence laws” is to prevent damage by fencing animals out, the purpose of the “herd law” is to avoid damage by requiring that certain designated animals be fenced in and not allowed to run at large. Miller v. Parvin, 111 Kan. 444. In this connection, the enactment of the “herd law” restored common law by making the owner of animals permitted to run at large liable for injuries committed by such animals, regardless of the “fence laws.” McAfee v. Walker, 82 Kan. at 185-186; Railway Co. v. Olden, 72 Kan. at 112. Recognizing as historical fact the “fence laws” were enacted to require minimum precautions to protect crops from grazing animals otherwise unrestricted, the statutes do not require the conclusion that such was the only purpose. Indeed, were we to adopt defendant’s theory, we would be forced to hold that the common law remains unmodified in situations where property other than crops is damaged. Any injury to livestock would thereby be controlled by the common law, making it unnecessary in this case for plaintiff to establish that his animal was protected by a lawful fence. Such would render the defendant liable upon the single stipulation that his bull injured plaintiff’s bull on plaintiff’s land. This requires too narrow an interpretation of the “fence laws.” The case of Bates v. Alliston, 186 Kan. 548, 352 P.2d 16 (1960), was considered on appeal from an order overruling a general demurrer to the plaintiff’s petition. The petition alleged that plaintiff and defendant were adjoining landowners; that plaintiff’s land was enclosed by a good and sufficient fence which met the requirements of the fence law; that plaintiff’s registered black Angus bull was attacked by defendant’s bull, which was then trespassing on plaintiff’s land; and that plaintiff’s bull sustained injuries from which it later died. Following review of various sections of the fence law, and noting that it was concerned only with the sufficiency of the allegations of the petition, the court held that a cause of action had been sufficiently alleged. We believe Bates v. Alliston requires our affirmance of the decision rendered in this case. Further support for our conclusion is to be found in the Casad article where, following a discussion of both the “fence laws” and the “herd law,” four basic situations in which the owner of a trespassing animal is held to strict liability for damage caused by the animal were listed: “A.) Situations to which the common law rule still applies. “B.) Where the animal has trespassed upon an enclosure surrounded by a lawful fence. “C.) Cases falling under the ‘freighters and drovers’ law, which provides that all damages caused to crops adjacent to the road caused by stock owned by freighters or drovers shall be paid by the stock owner. “D.) Where swine are being driven along the public highway, in which case the owner is ‘responsible for all damages’ sustained by ‘any person’ caused by the swine.” 10 Kan. L. Rev. at 64. The matter now before this court falls squarely within the second enumerated situation. Plaintiff was found to have a legally sufficient fence under the provisions of the “fence laws.” Defendant’s bull trespassed upon plaintiff’s enclosure. Defendant’s bull and plaintiff’s bull fought, resulting in permanent and serious injury to plaintiff’s bull. Under the law and the factual stipulations, defendant is liable to plaintiff for resulting damage. Affirmed.	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Foth, C.J.: This action was brought against the defendant Hepler State Bank for conversion effected through its payment of a series of checks each bearing the unauthorized indorsement of the payee. Plaintiff Aetna Casualty and Surety Company issued an employees’ fidelity bond to Columbian Hog and Cattle Powder Company. From 1973 to about July 15, 1977, Columbian employed one Ted Orton as a commission salesman to sell feed to farmers in southeastern Kansas. Orton also bought feed for his own account for use in his own livestock operations. Orton’s employment agreement with Columbian called for him to make collections from customers, with all checks from customers to be made payable to Columbian. To facilitate this arrangement Columbian furnished Orton a rubber stamp reading “Columbian Hog and Cattle Powder Company,” to be used to insert the payee’s name on checks from customers who might not wish to write so much. All went well until mid-1977, when Columbian discovered that from April through June, 1977, Orton had made off with money due his employer in the amount of $5,976.96. Aetna paid this amount to Columbian, less $500 deductible under its policy, and brought this action both as subrogee of Columbian and for Columbian’s $500. Orton’s method of operation was simply to stamp in Columbian’s name as payee, turn the check over, stamp Columbian’s name as first indorser, and then indorse the check “for deposit only, Ted Orton.” The check was then deposited in Orton’s personal account in the defendant bank and the proceeds used for Orton’s own purposes. Checks were drawn by Orton on his account to Columbian from time to time, but no correlation was shown between those payments, the deposits of Columbian’s checks, and Orton’s own account with Columbian for feed purchased by him. Aetna’s original claim was based on the supposition that Columbian’s entire loss had been occasioned by checks wrongfully paid by the defendant bank. At trial to the court Aetna could only show seven checks paid by defendant bank totalling $3,145.83. The result was a judgment in Aetna’s favor for that amount, based on factual findings that Orton’s indorsement of Columbian’s name was “unauthorized” and that the bank’s acceptance and payment of the checks “was not in accordance with reasonable commercial standards applicable to the banking business.” While this action was pending Aetna also attempted with some success to recoup its loss from Orton. By agreement with plaintiff’s counsel Orton made periodic payments which amounted to $1,100 by the time of trial; counsel was holding that amount in his trust account. On the assumption the bank would be liable for the entire loss of almost $6,000 plaintiff agreed to offset the $1,100 against the bank’s liability. When it developed the bank’s liability would be only a little more than half that amount plaintiff withdrew its offer of offset and elected to apply the $1,100 solely to the debt to it from Orton. The court nevertheless at first ordered the full $1,100 to be offset. Later, on plaintiff’s motion to alter or amend, it amended the judgment to allow only a pro rata offset of plaintiff’s recoupment from Orton, less assumed attorney fees. Its finding was: “On this contention, the Court finds that the judgment should be modified to reflect that attorney for plaintiff is entitled to an attorney fee of $366.00 for collection of said amount, leaving a balance of $734.00. The Court finds that plaintiff’s total loss occasioned by Orton was $5,476.96, of which amount Hepler State Bank was liable for $3,145.83, or approximately 57 percent of the amount of loss sustained by plaintiff. Therefore, plaintiff is entitled to an offset of 57 percent of $734.00, or $418.38, leaving a net judgment of $2,727.45.” It also denied Aetna’s claim for prejudgment interest. Plaintiff appeals from the disallowance of interest and the allowance of the setoff. Defendant cross-appeals, contesting liability on several theories. Because they go to the heart of the lawsuit, we take up defendant’s points first, although not in the order presented. I. “FORGERY” V. “UNAUTHORIZED SIGNATURE” The bank contends Orton did not “forge” the instruments because he signed his own name after stamping the payee’s, thus negating the intent to defraud which is an element of the criminal offense of forgery. It relies on K.S.A. 1980 Supp. 84-1-201(43) defining an “ ‘unauthorized’ signature or indorsement” as “one made without actual, implied or apparent authority and includes a forgery.” From this it argues that the Uniform Commercial Code distinguishes between a forgery and an unauthorized signature, and that without a “forgery” there can be no conversion under 84-3-419(1): “(1) An instrument is converted when (c) it is paid on a forged indorsement.” (Emphasis added.) Courts which have faced this argument have rejected it. Equipment Distrib. v. Charter Oak Bank, Etc., 34 Conn. Supp. 606, 379 A.2d 682 (1977), citing Hartford Accident & Indemnity Co. v. S. Windsor Bank & Trust Co., 171 Conn. 63, 368 A.2d 76 (1976); Salsman v. National Community Bank of Rutherford, 102 N.J. Super. 482, 246 A.2d 162 (1968), aff’d 105 N.J. Super. 164, 251 A.2d 460 (1969). Their reasoning is that the three listed conversions in 84-3-419 were not intended to be exclusive. See Commercial Credit Corp. v. University Nat. Bank, Etc., 590 F.2d 849, 851-52, and footnote 4 at 852 (10th Cir. 1979), and cases cited therein. The New Jersey court, referring to the sections of the New Jersey version of the Uniform Commercial Code corresponding to our own, explained the rationale: “Receiving the funds without a proper indorsement and crediting the funds to one not entitled thereto constitutes a conversion of the funds. A holder is one who receives an instrument which is indorsed to his order or in blank. N.J.S. 12A:1-201(20). The bank cannot be a holder, or a holder in due course (N.J.S. 12A:3-302), without a valid indorsement of this check y the estate of Arthur J. Odgers [the indorsee of the converted check], [Citation omitted.] N.J.S. 12A:3-419(1)(c) provides that an instrument is converted when it is paid on a forged indorsement. N.J.S. 12A: 1-201(43) provides that an unauthorized signature or indorsement is one made without authority (actual, implied or apparent) and includes a forgery. See [Teas v. Third National Bank and Trust Co., 125 N.J. Eq. 224 (Ct. Error & Appeal 1939)], where the court in 125 N.J. Eq., at p. 227 said: ‘There is no substantial difference between an unauthorized endorsement and a forged endorsement, the result being the same in so far as concerns the passing of title.’ The use of the word ‘forged indorsement’ as constituting a conversion under N.J.S. 12A:3-419(1) does not preclude the finding of conversion where the unauthorized signature does not constitute a forgery in the strict sense. If the Uniform Commercial Code fails expressly to include unauthorized indorsements other than forgeries in this conversion section, the law may reach the same result by implication from the Code and by general principles. See N.J.S. 12A:1-103, which provides: ‘Unless displaced by the particular provisions of this Act, the principles of law and equity, including the law merchant 000 or other validating or invalidating cause shall supplement its provisions.’ ” 102 N.J. Super, at 492. The general rule is summarized in 2 R. Anderson, Uniform Commercial Code § 3-419:4(d), pp. 1034-35 (2d ed. 1971): “If the instrument is paid on an unauthorized indorsement, such act of payment is a conversion. That is to say, § Code 3-419 is to be interpreted so that payment under an unauthorized signature is a conversion even though the signature may not be a technical forgery, for the reason that with respect to the transfer of title there is no difference between a forgery and an unauthorized indorsement.” In our case we need not decide whether Orton’s act of stamping Columbian’s name on the back of a check was technically a “forgery.” If it was unauthorized the bank was liable for conversion. II. IMPLIED OR APPARENT AUTHORITY There was no evidence that Columbian ever gave Orton actual authority to indorse checks payable to Columbian. His orders were to forward all checks to the home office in Kansas City. Only if he collected cash was he to deposit it in his own account and forward his own check for the amount of the customer’s payment. The bank contends, nevertheless, that Columbian must have known of Orton’s practice and that the bank was justified in believing the practice was authorized. K.S.A. 84-3-403(1) provides: “A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.” Kansas general agency law fits into and supplements the general code provisions. Leaderbrand v. Central State Bank of Wichita, 202 Kan. 450, 453, 450 P.2d 1 (1969); Service Iron Foundry, Inc. v. M. A. Bell Co., 2 Kan. App. 2d 662, 671, 588 P.2d 463 (1978). Shawnee State Bank v. North Olathe Industrial Park, Inc., 228 Kan. 231, 613 P.2d 1342 (1980), summarizes well-known principles of agency and in particular implied and apparent authority. “The law recognizes two distinct types of agencies, one actual and the other ostensible or apparent. “The authority of an actual agent may be either express or implied. It is an express agency if the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act. It is an implied agency if it appears from the statements and conduct of the parties and other relevant circumstances that the intention was to clothe the agent with such an appearance of authority that when the agency was exercised it would normally and naturally lead others to rely on the person’s acts as being authorized by the principal. “An ostensible or apparent agency may exist if a principal has intentionally or by want of ordinary care induced and permitted third persons to believe a person is his or her agent even though no authority, either express or implied, has been actually conferred upon the agent.” Syl. ¶¶ 1-3, p. 231. Although what constitutes an agency is a question of law, Fredricks v. Foltz, 225 Kan. 663, 594 P.2d 665 (1979), resolution of conflicting evidence which might establish its existence is for the finder of fact. CIT Financial Services, Inc. v. Gott, 5 Kan. App. 2d 224, 229-30, 615 P.2d 774 (1980); Hinton v. S. S. Kresge Co., 3 Kan. App. 2d 29, 35, 592 P.2d 471 (1978), rev. denied 225 Kan. 844 (1979). Thus, the trial court weighs the conflicting facts, not this court. CIT Financial Services, Inc. v. Gott, 5 Kan. App. 2d at 229-230, and cases cited therein. It was the bank’s burden to prove the relationship. Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. ¶ 1, 548 P.2d 719 (1976). Brady on Checks § 23.17, pp. 23-39/40 (5th ed. 1979) comments: “Authority in an agent to sell goods for his principal does not of itself empower him to indorse checks payable to the principal which he receives, and a bank which collects checks on such indorsements will be liable to the principal if the agent misappropriates the proceeds. A bank should therefore be cautious in cashing checks or issuing its own checks or drafts for checks received by a traveling salesman. “Neither does authority in an agent to make collections for his principal include authority to indorse checks payable to the principal. Any bank or person who receives a check on the indorsement of such an agent assumes the risk of the agent’s authority. Consequently, where an agent, having authority to collect money owing to his principal but no express authority to indorse checks received in the course of his employment, wrongfully indorses a check payable to his principal and obtains money on it from the drawee bank, or some other bank, or negotiates it for value to some purchaser, and uses the proceeds for his own personal benefit, the bank or person taking or paying the check is responsible for the amount to the principal, the rightful owner of the check.” Much of what Brady says applies here. Giving Orton authority to collect checks made payable to the company exclusively pursuant to company policy and furnishing him a rubber stamp to mark in the payee’s name on the check falls short of demonstrating an “implied intent” that he should have authority to indorse and cash company checks. Even assuming that at times Orton wrote checks drawn on his personal account to cover Columbian’s sales to its customers, at best a conflicting evidence claim arose for the trial court’s determination. Viewing the evidence in a light most favorable to the prevailing party, the trial court’s findings are supported by substantial competent evidence. See Gardner v. Rensmeyer, 221 Kan. 23, 26, 557 P.2d 1258 (1976). The case relied on by the appellee, Chamberlin Co. v. Bank, 107 Kan. 79, 190 Pac. 742 (1920), is distinguishable. There a Michigan company sent its agent into Kansas to sell weather stripping. The contracts with customers for the work did not direct payment to the company’s home office but instead provided payment would be made in cash upon completion of the work. The agent took the check there in question made payable to the company, indorsed its name along with his own on the back and absconded with the funds. The court protected the bank in that instance, emphasizing payment in cash upon completion of the work necessarily implied, if a check was given in payment, the authority to cash the check. In the court’s words: “By simply taking the check to the bank and receiving cash on it he was in fact receiving ‘cash on completion of the work,’ the indorsement being a mere incident to and instrument for completing this simple operation.” 107 Kan. at 83. Here, the company’s specific policy directed that all checks be made to the order of Columbian. From the record there is no indication any contract for feed directed payment in cash; in fact, the record leans decidedly the other way. Finally, the bank makes some argument for apparent authority. Again no evidence in the record establishes the company ever acquiesced in or recognized those transactions wherein Orton first deposited the checks in his account and then paid the company with his own. Columbian’s accounting system would not disclose whether the checks written by Orton were in payment for his own purchases or customer sales, but Columbian’s manager testified to his knowledge no checks written by Orton satisfied debts from outside sales. The key here is, assuming Orton actually wrote personal checks to cover sales, did Columbian know about it? See Senate Motors, Inc. v. Industrial Bank of Washington, 9 U.C.C. Rptr. Serv. 387 (D.C. Super. Ct. 1971) (deciding the case on this distinction). At best, the evidence was conflicting. Columbian said it did not, the bank said it did. Viewing the trial court’s decision on agency in the prevailing party’s favor and rejecting the conflicting evidence, Gardner, 221 Kan. at 26, it cannot be said the company knowingly held out the agent as one possessing authority to indorse. Miotk v. Rudy, 4 Kan. App. 2d 296, 300, 605 P.2d 587 (1980). III. FAILURE TO MEET REASONABLE COMMERCIAL STANDARDS This issue reaches two contentions of the bank: that recovery should be precluded by Columbian’s own negligence, and that it should in any event be limited to the nominal balance remaining in Orton’s account. On the first contention, K.S.A. 84-3-406 provides that one who “by his negligence substantially contributes to . . . the making of an unauthorized signature” is precluded from asserting the lack of authority against a drawee “who pays the instrument in good faith and in accordance with the reasonable commercial standards” of the drawee’s business. (Emphasis added.) The cases uniformly hold that if payment is not in accordance with reasonable commercial standards, contributory negligence is no defense. See, e.g., Sherriff-Goslin Co. v. Cawood, 91 Mich. App. 204, 283 N.W.2d 691 (1979); Mott Grain Co. v. First Nat. Bank & Trust Co., 259 N.W.2d 667 (N.D. 1977); First Nat. Bank of Boston v. Hovey, __ Mass. App. Ct. __, 412 N.E.2d 889 (1980); Sea-First Bank v. Pacific Bank, 22 Wash. App. 46, 587 P.2d 617 (1978); Empire Moving Corp. v. Hyde Park Bank, 43 Ill. App. 3d 991, 357 N.E.2d 1196 (1976); Perley v. Glastonbury Bank & Trust Co., 170 Conn. 691, 368 A.2d 149 (1976). See also 2 R. Anderson, Uniform Commercial Code § 3-406:5, p. 941; White & Summers, Uniform Commercial Code § 16-5, p. 625 (2d ed. 1980). The second contention is based on K.S.A. 84-3-419(3), limiting recovery to the amount of any proceeds remaining in the hands of a representative guilty of conversion if the representative dealt with the instrument “in good faith and in accordance with the reasonable commercial standards” of the representative’s business. Hence, if reasonable commercial standards of the banking business were not met this contention must also fail. Hanover Ins. Companies v. Brotherhood State Bank, 482 F. Supp. 501, 508 (D. Kan. 1979); Nat’l Surety Corp. v. Citizens State Bank, 41 Colo. App. 580, 593 P.2d 362 (1978), aff’d __ Colo. __, 612 P.2d 70 (1980). Whether or not a bank acted in a commercially reasonable manner is a question of fact. Continental Bank v. Wa-Ho Truck Brokerage, 122 Ariz. 414, 595 P.2d 206 (1979); Barnett Bank of Miami Beach v. Lipp, 364 So. 2d 28 (Fla. Dist. Ct. App. 1978); Holland America Cruises, N. V. v. Carver Federal Savings & Loan Association, 60 App. Div. 2d 545, 400 N.Y.S. 2d 64 (1977); Thorton & Co. v. Gwinnett Bank &c. Co., 151 Ga. App. 641, 260 S.E.2d 765 (1979). Barring exceptional circumstances, the general rule is that failure of a bank to inquire when an individual cashes a check made payable to a corporate payee and puts the money in his personal account is an unreasonable commercial banking practice as a matter of law. See, e.g., Hermetic Refrig. Co., Inc. v. Central Valley Nat. Bank Inc., 493 F.2d 476 (9th Cir. 1974); Sherriff-Goslin Co. v. Cawood, 91 Mich. App. 204; National Bank v. Refrigerated & Co., 147 Ga. App. 240, 248 S.E.2d 496 (1978); Belmar Truck Corp. v. Amer. Trust Co., 65 Misc. 2d 31, 316 N.Y.S. 2d 247, 8 U.C.C. Rptr. Serv. 73 (N.Y. Civ. Ct. 1970). The trial court here had ample evidence to support its finding that the bank acted in a commercially unreasonable manner. The bank’s act of depositing checks payable to a corporate payee into a personal checking account without inquiring as to the depositor’s authority was enough. In addition, there was expert testimony from a long-time banker that the bank’s actions fell short of acceptable banking practices. The trial court’s finding on this issue must stand. IV. PREJUDGMENT INTEREST The trial court disallowed prejudgment interest on the ground that Aetna’s claim was not “liquidated” until judgment was rendered. On appeal it is claimed the amount was liquidated because the amount of each check converted was undisputed and the total was a simple matter of addition, or “mathematical computation.” Cf. Barbara Oil Co. v. Patrick Petroleum Co., 1 Kan. App. 2d 437, Syl. ¶ 7, 566 P.2d 389 (1977). See also First National Bank v. Bankers Dispatch Corporation, 221 Kan. 528, 562 P.2d 32 (1977), and cases cited at p. 537. The bank’s argument on this issue also centers on the “liquidated” vs. “unliquidated” controversy. Both sides overlook the fact this action is for conversion, not breach of contract. In Meek v. Railroad Co., 95 Kan. 111, 113, 147 Pac. 1112 (1915), we find: “The general rule which obtains everywhere with respect to the measure of damages for the conversion of property is stated in the syllabus of Shepard v. Pratt, 16 Kan. 209, as follows: “ ‘In actions in the nature of trover for the conversion of personal property, the measure of damages is ordinarily the value of the property at the time of the conversion, with interest thereon to the date of the verdict.’ (Syl. ¶ 8.) “(See, also, Ball v. Campbell & Gilbert, 30 Kan. 117, 2 Pac. 165; Simpson v. Alexander, 35 Kan. 225, 11 Pac. 171; Dodson v. Cooper, 37 Kan. 346, 15 Pac. 200.)” Shepard v. Pratt, 16 Kan. 209 (1876), where the rule was first enunciated in this state, was an action for conversion of cattle. The petition claimed 225 head were converted, worth $35 per head, and prayed for $7,875 in damages. Plaintiff proved conversion of at most 100 head, worth no more than $35 each, but recovered a verdict of $3,998.81. The extra $498.81 was agreed to be interest. The court held that by pleading the exact number of cattle converted and their value per head plaintiff had pleaded a liquidated claim. Having done so, under the Code of Civil Procedure he could not recover interest without claiming it in the prayer. Had he merely pleaded a conversion, the court said, with damages in the total amount claimed, he could have had his interest because it would have been within the relief prayed for. As it was, because he pleaded his damages so specifically he was required to remit that portion of the verdict representing damages (interest) which were undoubtedly proper but which exceeded the prayer as construed on appeal. In that case the court considered the claim “liquidated” where a number of items were alleged to be converted, each of a fixed value, even though the number converted was contested and proved at trial to be less than the number claimed. Another instructive case is Trapani v. Universal Credit Co., 151 Kan. 715, 100 P.2d 735 (1940). There the suit was for conversion of an automobile alleged to be worth $1,500. Plaintiff also claimed incidental damages of $1,000, making the total prayer $2,500. At trial the value of the car was found to be only $1,300. Judgment was entered for that amount plus several other items of incidental damages, including interest from the date of the conversion. The other items were found for various reasons to be improper, but the court held, “As to the item for interest, this is a proper element of damages in actions for conversion. (See Meek v. Railroad Co., 95 Kan. 111, 147 Pac. 1112, and cases cited; also, 65 C.J. 141.)” 151 Kan. at 723. Under that case the fact that the value of the converted property is contested, i.e., “unliquidated,” and is determined only at trial does not prevent the award of interest on the value as finally determined. See also 18 Am. Jur. 2d, Conversion § 99; 89 C.J.S., Trover & Conversion § 171; National Bank v. Refrigerated & Co., 147 Ga. App. 2d 240, 246. The rule of these authorities is that in case of conversion interest is allowed by way of damages. The allowance is not dependent on statute nor on whether the claim is liquidated or unliquidated, but is simply designed to make the plaintiff whole. Because the owner is denied the use of either the property or its value, by analogy to the statutory interest allowed for the use of money, the rate allowable is the legal rate. Cf. Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 449, Syl. ¶ 11, 562 P.2d 1, cert. denied 434 U.S. 876 (1977). The trial court therefore erred in disallowing prejudgment interest. On remand interest at the rate of 6% should be allowed on the face amount of each check from the date of its conversion {i.e., the date paid by defendant bank) until March 6, 1980, the date the original judgment was entered. V. SETOFF The trial court set off Orton’s $1,100 partial restitution to Aetna in proportion to the amount of the total loss occasioned by the acts of Orton and the acts of the bank. Aetna complains that it had no obligation and no intent to recover from Orton on behalf of the bank and neither it nor its attorney can be made the unwilling agent of the bank for this purpose. We agree. It is undisputed that Columbian’s total loss through Orton’s defalcations was $5,976.96. Of this amount $3,145.83 was also caused by the bank’s conversion of the seven checks in question, the balance by Orton’s misdeeds alone. Columbian (through Aetna) could look to Orton for all of its loss and to the bank for part. It could not, of course, have full recovery from both. The bank also had a claim against Orton on Orton’s warranties arising from his indorsement and transfer of the checks. K.S.A. 84-4-207(2). Aetna pursued Orton and recovered $1,100 from him, thus reducing Orton’s debt to Aetna to $4,876.96. In this action Aetna pursued the bank, seeking the $3,145.83 converted by it. We are hard pressed to see how the reduction of Orton’s debt to Aetna and Columbian should reduce the liability of the bank to the same creditors. The bank has its own cause of action against Orton which it may elect to pursue, but had not done so up until the time of trial. A closely analogous case is Hartford Accident & Indemnity Co. v. S. Windsor Bank & Trust Co., 171 Conn. 63, cited in Part I above. In that case Hartford sued the bank for conversion of a $37,906 check made payable to Hartford but endorsed and deposited by an agent named Belding. After the conversion but before suit was filed, Belding sold his agency, with his successor agreeing to pay part of Belding’s renewal commission on Belding’s debt to Hartford in the amount of $49,547. Hartford agreed not to sue Belding while the agreement was in force, and by the time of trial had recouped $6,231. Among the bank’s contentions in the conversion suit was a claim that it should have a pro rata credit, i.e., the $6,231 should be applied to its obligation on the check in the ratio of the check ($37,906) to Belding’s total debt ($49,547). Its claim, therefore, was for credit of $4,767, reducing its obligation for converting the check to $33,139. The Supreme Court of Connecticut made short work of the contention; Hartford had not agreed to such credit, and was properly permitted to apply the entire payment to Belding’s indebtedness other than on the check. The bank was liable for the face amount. The result is in line with the familiar rule that if a debtor owes a creditor more than one debt, in the absence of a direction from the debtor to the creditor as to how a payment is to be applied the creditor may elect to apply it to any debt he chooses. Edelblute v. Waddell & Reed, Inc., 171 Kan. 508, Syl. ¶ 3, 233 P.2d 757 (1951). Here, assuming for the sake of argument Orton’s obligation to his former employer is severable, Orton could have directed its application to that part arising out of the checks cashed at defendant bank or that part arising out of other transactions. In the absence of a direction—and there was no evidence of one here—the creditor Aetna had the right to make the election. It is true that if neither party exercises the right to determine to which debt a payment is to be applied the court may apply it “as justice may suggest.” Lumber Co. v. Workman, 105 Kan. 505, 509, 185 Pac. 288 (1919). This is not such a case, however. When Aetna’s counsel thought the bank had stipulated that Orton’s entire $5,900 had gone through defendant bank, he was obliged to and did agree to offset the $1,100. When it developed the bank took a more limited view of its stipulation—i.e., as being only that the loss was $5,900—counsel elected for his client as to the application of the money in his hands. When the court considered the matter the election had been made. In our opinion the court had no authority to change it. By the same token it could not decree a pro rata credit of any future payments by Orton, before or after attorney fees. Aetna and Columbian are entitled to recoup from Orton the gross sum of $5,976.96 less the $3,145.83 due from the bank, or $2,831.13. 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Abbott, J.: This is an appeal by the secretary of human resources from a district court order denying claimant, Anita R. Richardson, the sum of $260.19 which she alleges is due her as “wages” as defined by K.S.A. 1980 Supp. 44-313(c). The action being appealed is the district court’s review of an administrative decision that allowed Mrs. Richardson the full amount of her claimed wages. The secretary of the Kansas Department of Human Resources is the real party in interest by virtue of K.S.A. 1980 Supp. 44-324(h). The operative facts are not in dispute. On September 8, 1975, Mrs. Richardson was employed as a nurse by the defendant, St. Mary Hospital, Manhattan, Kansas. On May 22, 1977, she took maternity leave. On two separate days during her maternity leave, she returned to work at defendant’s request due to a shortage of nurses. While she was on maternity leave, she accepted a position with another employer; and rather than returning to her employment with defendant on the scheduled date of July 17, 1977, she notified defendant’s personnel director on June 21, 1977, that she was resigning. It was mutually agreed that her last day “at work” would be July 2, 1977. Her final check was for fifty percent of her accumulated “earned time.” Mrs. Richardson filed a claim for the remaining fifty percent of her earned time. The hearing examiner of the Kansas Department of Human Resources held that the accrued time is wages as defined by K.S.A. 1978 Supp. 44-313(c), and ordered the hospital to pay her $260.19 (61.95 hours at $4.20 per hour). The hospital appealed to the district court. The district court concluded that fringe benefits which the employer and employee have contracted for amount to wages as defined by K.S.A. 1978 Supp. 44-313(c), but that a contract provision concerning the earned time (which we will discuss hereinafter) was a condition precedent, not a condition subsequent, and that Mrs. Richardson was not entitled to recover the remaining fifty percent of accumulated earned time. The method for accruing earned time is set out in an employee handbook and is part of the employment contract; it is unique in that it provides for paid absences for sick leave, holidays and vacation time all together. Any employee paid-absence is paid out of earned time. The accrual is figured each pay period based on both regular hours worked and any earned time for which the employee is paid, so that both full-time and part-time employees accrue earned time in proportion to the number of hours worked. A maximum 192 hours of earned time (twenty-four, eight-hour days) can accrue in a twelve-month period. An employee can accumulate a maximum of 480 hours. The accrual factor of .0924 is used during the first five years of employment, and that multiplied by the “regular hours worked, excluding overtime, plus 'Earned Time’ hours taken, if any” is carried to the nearest hundredth to establish the amount of accrued earned time. A greater factor is used for employees having over five years of service. Earned time accrual is not based on any overtime hours. The record indicates that it is intended for each employee having less than five years’ service to receive two weeks’ (10 days) vacation each year, leaving fourteen days for paid holidays and sick leave. The employment contract provides for the accrual of earned time from the date of employment, but if employment is terminated during the first 90 days the employee will not be paid for any unused accrued time. Sick leave and holiday pay is received by writing on the time card the number of hours the employee wishes to be paid for and designating.it as “ET.” It is required that all vacation time be arranged for in advance. The employment contract provides that upon retirement an employee will be paid for 100 percent of accrued earned time up to the maximum that can be accrued. An employee is allowed to use accrued earned time during an approved leave of absence. Mrs. Richardson requested and was granted a leave of absence for maternity purposes, commencing on May 22, 1977. She was to return to work on July 17, 1977. She elected to use 32 hours of accumulated earned time each week during her leave of absence. When she gave two weeks’ notice, the hospital terminated her use of earned time pursuant to the employment contract and paid her for one-half of her accumulated earned time, also pursuant to the contract. The employment contract provides: “Employees who are terminating or transferring to an On-call position who have unused ‘Earned Time’ as of their resignation or last day worked, will be paid for unused ‘Earned Time’ according to the following percentages: 50% for up to five (5) years of service 60% for five (5) to ten (10) years of service 75% for over ten (10) years of service.” Plaintiff argues that earned time is wages pursuant to K.S.A. 1980 Supp. 44-313(c) and is due the workers as provided in 1980 Supp. 44-315(a) and 44-321. K.S.A. 1980 Supp. 44-313(c) provides: “ ‘Wages’ means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis less authorized withholding and deductions.” K.S.A. 1980 Supp. 44-315(a) provides: “Whenever an employer discharges an employee or whenever an employee quits or resigns, the employer shall pay the employee’s earned wages not later than the next regular payday upon which he or she would have been paid if still employed as provided under K.S.A. 1977 Supp. 44-314, either through the regular pay channels or by mail postmarked within the deadlines herein specified if requested by the employee.” (Emphasis supplied.) K.S.A. 44-321 states: “Except as provided in section 12 [44-324] of this act, no provision of, or any right created under this act may in any way be contravened, set aside or waived.” Plaintiff also relies on K.A.R. 49-20-1F, which provides: “ ‘Or other basis’, within the meaning of K.S.A. 44-313(c), shall include all agreed compensation for services including, but not limited to, profit sharing and fringe benefits for which the conditions required for entitlement, eligibility, accrual or earning have been met by the employee. Conditions subsequent to such entitlement, eligibility, accrual or earning resulting in a forfeiture or loss of such earned wage shall be ineffective and unenforceable.” Plaintiff requests that this court extend the rule of Benjamin v. Manpower, Inc., of Wichita, 3 Kan. App. 2d 657, 600 P.2d 148 (1979), to cover the facts of this case. In Benjamin, this court held that vacation pay earned and due pursuant to an employment contract constitutes “wages” as defined by K.S.A. 1980 Supp. 44-313(c). We remain satisfied with our decision in Benjamin. Wages and vacation time earned and due to an employee pursuant to an employment contract may not be forfeited. That rule, however, does not apply to the facts in this case. In Benjamin we dealt with an employment contract that gave the employee an absolute right to a two weeks’ annual vacation or two weeks’ pay. In this case, a full-time employee earns 24 working days a year that can be used by taking a two weeks’ vacation (10 days) and saving the remaining 14 days for sick leave, authorized leave of absence, or paid holidays. In what appears to be an effort to prevent abuse of sick leave, the employer agreed to pay an employee on a set formula for accrued earned time when employment is terminated other than by retirement. Parties have wide discretion in fixing the terms of employment contracts, and when the employment contract is not contrary to law it should be honored and enforced by the courts. As we view the employment contract here, we are of the opinion that the trial judge correctly determined that the earned time was not wages under the employment contract and that the right to pay was conditioned upon the employee’s continued employment. The trial judge determined that the condition of employment is a condition precedent, not a condition subsequent. While the language used in the employment contract borders on being a condition subsequent, we are convinced that the right to use the accumulated earned time was absolute during the employment, and the right to payment for accrued time not used during the term of employment for which the employee elects to be paid when employment is terminated is governed by the employment contract and is not in violation of existing statutes and regulations. It is argued in an amicus curiae brief that the state wage laws embodied in chapter 44 of Kansas Statutes Annotated are preempted by the federal Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. (1976). This issue is raised for the first time by the Kansas Hospital Association, which is not even a party to the appeal, so we need not consider it. Fleming v. Etherington, 227 Kan. 795, Syl. ¶ 7, 610 P.2d 592 (1980). In any event, the argument lacks merit. 29 C.F.R. § 2510.3-1(b)(3)(i) (1980) states: “[T]he terms ‘employee welfare benefit plan’ . . . shall not include . . . [p]ayment of compensation while an employee is on vacation or absent on a holiday, including payment of premiums to induce employees to take vacations at a time favorable to the employer for business reasons.” This regulation precludes vacation pay from being considered an “employee welfare benefit plan” (29 U.S.C. § 1002[1]). Furthermore, vacation pay does not fall under the definition of a “pension plan” (29 U.S.C. § 1002[2]). Therefore, we find that ERISA does not apply here. It is also argued that the district court allegedly erred by making findings on issues not determined by the hearing examiner instead of remanding the case for additional findings. A district court’s scope of review in this type of action was reviewed in Swezey v. State Department of Social & Rehabilitation Services, 1 Kan. App. 2d 94, 562 P.2d 117 (1977). Swezey dealt with review of findings of fact. In reviewing questions of law, the trial court may substitute its judgment for that of the agency, although ordinarily the court will give deference to the agency’s interpretation of the law. Ryan, Judicial Review of Administrative Action—Kansas Perspectives, 19 Washburn L.J. 423, 432 (1980); see Southwestern Bell Telephone Co. v. Em ployment Security Board of Review, 189 Kan. 600, 607, 371 P.2d 134 (1962). The issues in this case are questions of mixed law and fact, and both standards of review apply. The complaint is that the hearing examiner did not consider the question of whether the vacation pay would constitute wages under K.S.A. 1980 Supp. 44-313(c) and K.A.R. 49-20-1F. The issue was considered by the hearing examiner, as reflected in his written findings: “That claimant did not receive the wages due her on July 2, 1977, as is required by the provisions of K.S.A. 44-313(c) and K.A.R. 49-20-1(F).” The district court did not err in conducting its review on the record taken below, and in our opinion it followed the statutorily prescribed standard of review. K.S.A. 1980 Supp. 44-322a(c). Affirmed.	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Foth, C.J.: Defendant appeals from a conviction by a jury of involuntary manslaughter. The threshold issue is whether we have jurisdiction. That issue is one we are compelled to raise on our own motion. See 2 West’s Kansas Digest, Appeal & Error § 23 (and 1981 Supp.). The jury’s verdict in this case was returned on June 26, 1980, and the case was continued to August 15, 1980, for sentencing. On the latter date the court overruled defendant’s motion for discharge but granted his “Motion to Suspend Imposition of Sentence pending Appeal.” The decretal paragraph of the Journal Entry recites: “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that sentencing in this matter is suspended pending Appeal by the Defendant of the jury conviction on Involuntary Manslaughter, in violation of K.S.A. 21-3404.” This appeal followed. In City of Topeka v. Martin, 3 Kan. App. 2d 105, 590 P.2d 106 (1979), we dismissed for lack of jurisdiction an appeal from a conviction of driving under the influence where there had been “no sentence imposed or other disposition made which constitutes a final judgment as required by K.S.A. 1978 Supp. 22-3601(a), -3602(a), and K.S.A. 22-3608(1).” We there observed: “An order finding a defendant guilty is not an appealable order and may not be appealed until the defendant is sentenced or the imposition of sentence is suspended pursuant to 22-3608. State v. Woodbury, 133 Kan. 1, 298 Pac. 794 (1931); Roberts v. State, 197 Kan. 687, 689, 421 P.2d 48 (1966); 21 Am. Jur. 2d, Criminal Law § 525, p. 509; 24 C.J.S., Criminal Law §§ 1556, 1648, 1649, 1653.” In this case the trial court did say it was suspending imposition of sentence, but only “pending appeal.” This was clearly not intended to be the final disposition of the case — the court obviously reserved the right to dispose of the case by imposing sentence if the conviction was affirmed. In our opinion an appeal at this stage of the proceeding is not contemplated by our statutes. K.S.A. 22-3608 imposes time limits for appeals in criminal cases. Subsection (1) deals with cases where sentence is imposed, subsection (2) with those where “the imposition of sentence is suspended.” K.S.A. 21-4602 (2) and (3) furnish relevant definitions: “(2) ‘Suspension of sentence’ is a procedure under which a defendant, found guilty of a crime, upon verdict or plea, is released by the court without imposition of sentence. The release may be with or without supervision in the discretion of the court; “(3) ‘Probation’ is a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment subject to conditions imposed by the court and subject to the supervision of the probation service of the state, county or court!.]” Thus, “ ‘[suspension of sentence,’ by its definition, is the release of a defendant without sentence.” Esters v. State, 1 Kan. App. 2d 503, 506, 571 P.2d 32 (1977), emphasis added. Like the grant of probation, it constitutes a final disposition of the case which results in the defendant’s return to society, usually under conditions imposed by the court. If confinement is to ensue, there must be cause and compliance with the notice and hearing procedures specified in K.S.A. 22-3716. In this case the order did not amount to a true suspension of sentence but only to a deferral of the sentencing to a later date. Except for the label applied to the continuance, for all practical purposes the posture of this case is identical to that in City of Topeka v. Martin. The present appeal is interlocutory, we have no jurisdiction, and it must be dismissed. If, after final disposition, defendant takes a new appeal, we will receive favorably a motion that it be heard on the briefs submitted in this appeal. Further, since the case has been argued on the merits, we would approve a stipulation that it be decided by the present panel without reargument. We cannot, however, decide an appeal we have no jurisdiction to hear. Appeal dismissed.	[ -112, -64, -111, -100, 123, 96, 35, 52, 80, -41, -73, 83, 47, -39, 5, 121, 83, 95, -11, 105, -39, -105, 55, -47, -93, -77, -63, -41, -73, 93, -28, -3, 78, -16, 74, -75, 70, -53, 85, -42, -114, 1, -104, -16, 88, -118, 48, 107, 86, 15, 49, 30, -5, 42, 27, -29, -119, 104, 89, -83, -56, 80, -53, 5, 110, 20, -93, -124, -100, -121, 80, 61, 92, 25, 42, -24, 51, 22, -126, -44, 105, -53, -116, 102, -94, 33, 29, -17, -79, -103, 46, 126, -99, -89, 24, 80, 65, -127, -42, -7, 116, 54, 46, -66, -18, -123, 21, 124, -122, -57, -76, -111, 15, 53, 50, -29, -53, -123, 48, 97, -49, -2, 94, 71, 115, 27, -114, -108 ]
Miller, J.: The plaintiffs, Jerry Lewis, Robert L. Livingston and Eugene Livingston, appeal from various rulings and from the final judgment entered in the Sedgwick District Court, following a jury trial in this action for breach of contract and for damages. The controlling issues are: (1) Was there such a taking as would justify an action by plaintiffs in the nature of inverse condemna tion? and (2) Are plaintiffs third-party beneficiaries under the terms of a street improvement contract? In order to consider these questions in the proper context, we must first state the facts in some detail. Lewis was the proprietor of a business known as Boulevard Equipment Rental, and the Livingstons were the proprietors and operators of the Triangle Restaurant in Wichita, Kansas. Both businesses were operated on leased premises located on the east side of George Washington Boulevard, between Harry and Hillside Streets, in the Triangle Plaza Shopping Center. Direct access to both businesses was available from George Washington Boulevard. The City of Wichita, in early 1974, determined that it was necessary and desirable to improve George Washington Boulevard by widening it from two to four lanes, with a mountable median, by rebuilding the drainage facilities, and by reconstructing the entrances to adjacent properties. For reasons not here important, the city entered into an agreement with the State Highway Commission (now the Department of Transportation) whereby the Commission agreed to serve as agent for the city during the course of the project. Plans were prepared, advertisements for bids were published, and on June 10, 1974, Globe Construction Co., Inc., the successful bidder, entered into a contract with the State Highway Commission to make the improvements. The contract includes the plans and specifications as an integral part. On page 4 of the plans appears the following construction sequence note: “CONSTRUCTION SEQUENCE “HILLSIDE TO HARRY “The storm drain and grading and surfacing work between Hillside and Harry shall be sequenced so that either the southbound or northbound two lanes are completed prior to commencing construction of the other two lanes and center lane. Parking lot reconstruction Rt. Sta. 59+71 to Sta. 62+00 shall be done in conjunction with the work on the southbound lanes. “The above described construction sequence may be modified at the approval of the engineer. Any construction sequence shall maintain local traffic to the businesses between Hillside and Harry.” The specifications include the then current State Highway Commission’s Standard Specifications for State Road and Bridge Construction (1973 ed.). Section 107.21 of those standard speci fications includes a clause denying intent on the part of the contracting parties to create any third-party beneficiary under the contract. That section reads: “107.21 THIRD PARTY BENEFICIARY - It is specifically agreed between the parties executing this Contract that it is not intended by any of the provisions of any part of the Contract to create the public or any member thereof a third party beneficiary hereunder, or to authorize any one not a party to this Contract to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of this Contract. The duties, obligations and responsibilities of the parties to this contract with respect to third parties shall remain as imposed by law.” R. W. Linn, Wichita City Engineer, notified the occupants of the properties on George Washington Boulevard between Harry and Hillside, on July 10, 1974, that paving work would begin on July 17, 1974, and that the boulevard would be closed between Hillside and Harry Streets. Globe began work on the project, and on July 17, put up barricades which closed the boulevard to through traffic between Hillside and Harry. According to the evidence, local traffic was maintained along the east side of George Washington Boulevard from three days to four weeks after the barricades were erected. There is no dispute, however, that the parking lots in front of plaintiffs’ businesses were torn up by mid August, and entry into those lots by motor vehicles was no longer possible. The restaurant closed between a few days to two weeks after the barricades were put up on July 17. Access to plaintiff’s business was possible off of Harry and Hillside streets, through the shopping center parking lot, by using a circuitous route behind some of the other stores in the shopping center; this route was not convenient. Plaintiff Lewis installed signs, indicating the route to his business; the Livingstons did not, but simply closed their restaurant. Both businesses suffered, and plaintiffs claim damages for loss of business due to the temporary closing of the street. George Washington Boulevard was closed to all traffic for about 60 days during the course of construction; local traffic was able to use the street after the middle of October, and the work was accepted as completed upon the issuance by the Highway Commission of a formal “Notice of Acceptance” to Globe on November 15, 1974. Lewis and the Livingstons commenced this action on May 5, 1976, by filing suit against Globe Construction Co., claiming that they were third-party beneficiaries of the construction contract, and more specifically under the note appearing on page No. 4 of the plans; they contended that Globe breached the contract by violating the plan note; and they sought damages. Globe answered and denied that plaintiffs were third-party beneficiaries under the contract, denied that Globe breached the contract, denied liability, and denied the nature and extent of the damages claimed. Globe also filed a third-party petition, naming the City of Wichita, and the Secretary of Transportation as successor to the State Highway Commission, as third-party defendants; Globe sought a judgment over against the third-party defendants in the event that plaintiffs recovered judgment against Globe. Plaintiffs then filed an amended petition, reasserting their claims for breach of contract as against Globe and adding claims against the City and the Secretary in the nature of inverse condemnation, for taking access to plaintiffs’ businesses without compensation. The City and the Secretary filed separate answers, denying all claims against them. The trial court (1) directed verdicts against Globe on its third-party claims against the City and the Secretary; (2) granted summary judgment in favor of the City and the Secretary on plaintiffs’ inverse condemnation claims; and (3) permitted plaintiffs’ action against Globe for damages for breach of contract to go to the jury. The jury returned a verdict in favor of the Livingstons for $0 and costs, and a verdict in favor of Lewis for $5,000 and costs. This appeal followed. Was there such a taking as would justify an action by plaintiffs against the City and the Secretary in the nature of inverse condemnation? The taking complained of is the temporary deprivation of direct access from George Washington Boulevard to the parking lots in front of plaintiffs’ businesses during construction. It is a common fact of life that street, road or highway repairs may result in loss of access to the abutting properties for from a few hours to a few months, during the repair or construction process. Our issue here is whether such a taking is compensable. Inverse condemnation proceedings have been recognized by Kansas courts for many years. One of the early cases on the subject is Cohen v. St. L., Ft. S. & W. Rld. Co., 34 Kan. 158, 162-63, 8 Pac. 138 (1885). The railroad had built its line across plaintiff’s land, to which the railroad held no title. Justice Valentine, speaking for a unanimous court, said: “[W]here a railroad company has constructed and is operating its railroad through a piece of land belonging to another, without having first obtained a right-of-way by any formal condemnation proceedings, and without having procured any title to the land or any easement therein, the owner of the land may waive formal condemnation proceedings, and all formal modes of transfer, and elect to regard the action of the railroad company as taking the property under the right of eminent domain, and may commence an ordinary action to recover compensation for all the damages which he has sustained by reason of the permanent taking and appropriation of the right-of-way by the railroad company. We think such an action may be maintained.” In State Highway Comm. v. Puskarich, 148 Kan. 388, 83 P.2d 132 (1938), the court held that where the landowner brought suit against the county for the value of a 47½ foot strip of land taken for highway purposes, judgment for $3,495 was entered by the district court, and that judgment was paid by the county, then the satisfaction of the judgment operated to pass title to the strip of land appropriated by the county for public use. Even though the title was not fee simple absolute, but a fee determinable limited by the use for which the land was acquired, the court held that the appropriation was sufficient to support an action on the implied contract for the value of the land. See also Atchison v. State Highway Comm., 161 Kan. 661, 171 P.2d 287 (1946), where the court held that the landowners had an action for compensation when the State Highway Commission took lands, to which it had no title, for use as a drainage ditch for a state highway; Dugger v. State Highway Commission, 185 Kan. 317, 342 P.2d 186 (1959), an action for damages for change of the established grade of a city street, which severely impaired ingress and egress; Sanders v. State Highway Commission, 211 Kan. 776, 508 P.2d 981 (1973), holding that the landowners had valid claims in inverse condemnation where the State Highway Commission had appropriated their rights to lateral support, thereby causing the landowners’ back yards to crumble and slide into the adjacent highway right-of-way; and Ventures in Property I v. City of Wichita, 225 Kan. 698, 714, 594 P.2d 671 (1979), holding that the city’s requirement that the owner of land hold a portion thereof and preserve it “in its undeveloped state for possible highway purposes at some indefinite date in the distant future,” resulted in a taking for which the city is required to respond in damages in an inverse condemnation action. As to the right of access of the owner of land abutting a public highway, we have held that: “[T]he owner of land abutting on a street or highway has a private right in such street or highway, distinct from that of the public, which cannot be taken or materially interfered with without just compensation. However, the rights of an abutting owner must be subordinated to the right of the public to the proper use of the highway and the right of governmental agencies to enforce proper police regulation. The right is subject to reasonable regulation and restrictions for the purpose of providing reasonable safe passage for the public, but the regulations or limitations cannot be enforced where they unduly limit or unreasonably interfere with the rights of the abutting owners.” Brock v. State Highway Commission, 195 Kan. 361, 367, 404 P.2d 934 (1965). See also Ray v. State Highway Commission, 196 Kan. 13, 410 P.2d 278, cert. denied 385 U.S. 820 (1966); McCall Service Stations, Inc., v. City of Overland Park, 215 Kan. 390, 524 P.2d 1165 (1974); and Kohn Enterprises, Inc. v. City of Overland Park, 221 Kan. 230, 559 P.2d 771 (1977). Access in the present case'was restricted or blocked temporarily during construction. No permanent change was effected by the permanent closing of existing entrances, by declaring the thoroughfare a limited access facility, or by the building of raised curbs along the property line, as is found in some of the cited cases. The access loss was temporary, during the construction period. There is no claim that the work was illegal, or that it was not pursued diligently and completed within a reasonable length of time. In Farrell v. Rose, 253 N.Y. 73, 170 N.E. 498 (1930), the New York Court of Appeals, in a similar case, said: “The highway is continually being dug up for . . . sewers, gas mains, repairs and the like. The inconvenience and damage which a property owner suffers from these temporary obstructions are incident to city life and must be endured. The law gives [the adjoining landowner] no right to relief, recognizing that he recoups his damage in the benefit which he shares with the general public in the ultimate improvement which is being made. The law, however, does afford him a relief, if the city or a contractor interferes with the highway without authority; or, if acting legally, prolongs the work unnecessarily or unreasonably. The obstruction of streets and highways, or the work carried on in them of a public nature, must be reasonable and necessary for the public improvement which is being made.” p. 76. The Supreme Court of Oklahoma reached a similar conclusion in Oldfield v. City of Tulsa, 170 Okla. 329, 41 P.2d 71 (1935), where it held that: “[A] municipal corporation may temporarily inconvenience citizens and property owners by the construction of public improvements.” 170 Okla. at 331. The rule is stated in 39 Am. Jur. 2d, Highways, Streets and Bridges § 308, pp. 691-92, as follows: “The public authorities may close a street or other highway temporarily for the purpose of improving or repairing it ... . “The inconvenience and damage which a property owner suffers as a result of temporary obstructions caused by improvement or repair of the way are incident to urban life, and must be endured.” Ray v. State Highway Commission, 196 Kan. at 16, discusses the power of the State Highway Commission to exercise the right of eminent domain, and its power to regulate within the police power of the state. The opinion states: “It must be recognized that these two types of power which the Commission exercises are mutually exclusive polestars with different legal consequences. The use of one incurs liability for compensation, but the other does not. An act by the Commission must be classified as an exercise of one type of power or the other. It cannot be both.” The temporary closing of a street for repair falls within the exercise of the police power, not the exercise of eminent domain. So long as the work is lawful, and is pursued with reasonable diligence, liability for damages to those whose access is temporarily restricted does not attach. We conclude that the trial court was eminently correct in granting summary judgment on plaintiffs’ inverse condemnation claims against the City and the Secretary. The next issue is whether plaintiffs are third-party beneficiaries under the terms of the contract between the State Highway Commission and Globe for street improvements, and if plaintiffs are entitled to enforce the contract in an action against the contractor, Globe. The discussion of third-party beneficiaries in Martin v. Edwards, 219 Kan. 466, 548 P.2d 779 (1976) is helpful and pertinent: “Generally, where a person makes a promise to another for the benefit of a third person, that third person may maintain an action to enforce the contract even though he had no knowledge of the contract when it was made and paid no part of the consideration (Burton v. Larkin, 36 Kan. 246, 13 Pac. 398; Anderson v. Rexroad, 175 Kan. 676, 266 P.2d 320). But it is not everyone who may benefit from the performance of a contract between two other persons, or who may suffer from its nonperformance, who is permitted to enforce the contract by court action. Beneficiaries of contracts to which they are not parties have been divided into three classes; Donee beneficiaries, creditor beneficiaries and incidental beneficiaries. Only those falling within the first two classes may enforce contracts made for their benefit (17A CJS, Contracts, § 519 [4] b., p. 964; Accord: Burton v. Larkin, supra). These third person beneficiaries are defined in 2 Williston on Contracts, 3d ed., § 356, as follows: “ . . (1) Such person is a donee beneficiary if the purpose of the promisee in obtaining the promise of all or part of the performance thereof, is to make a gift to the beneficiary, or to confer upon him a right against the promisor to some performance neither due [nor supposed] or asserted to be due from the promisee to the beneficiary; (2) such person is a creditor beneficiary if no intention to make a gift appears from the terms of the promise, and performance of the promise will satisfy an actual [or supposed] or asserted duty of the promisee to the beneficiary; (3) such person is an incidental beneficiary if the benefits to him are merely incidental to the performance of the promise and if he is neither a donee beneficiary nor a creditor beneficiary.’ (pp. 824-827.) “(Accord: Restatement of the Law of Contracts, § 133, pp. 151-152. Restatement, Contracts, 2d, Revised Tentative Draft, 1973, § 133, pp. 285-286, divides contract beneficiaries into two classes — intended and incidental).” pp. 472-73. Under this definition, it appears that plaintiffs are neither “donee” nor “creditor” beneficiaries; if they are third-party beneficiaries, they fall into that classification known as “incidental” beneficiaries to the contract. The Martin court set forth the following rules with regard to incidental beneficiaries: “The rule respecting incidental beneficiaries is stated in 17 Am. Jur. 2d, Contracts, § 307, as follows: “ ‘. . . A mere incidental, collateral, or consequential benefit which may accrue to a third person by reason of the performance of a contract, or the mere fact that he has been injured by the breach thereof, is not sufficient to enable him to maintain an action on the contract. Where the contract is primarily for the benefit of the parties thereto, the mere fact that a third person would be incidentally benefited does not give him a right to sue for its breach . . .’ (p. 733.) “Various tests have been used elsewhere in drawing the line between classes of beneficiaries. In Burton v. Larkin, supra, this court held: ‘It is not every promise made by one to another from the performance of which a benefit may inure to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited in order to be entitled to sue upon it.’ (Syl. para. 3.) (Emphasis supplied.) Under this test a beneficiary can enforce the contract if he is one who the contracting parties intended should receive a direct benefit from the contract (see anno. Contract-Enforcement by Person Benefited, 81 ALR 1271, § III d., p. 1286). We think this test is sound and are content to reaffirm it. Contracting parties are presumed to act for themselves and therefore an intent to benefit a third person must be clearly expressed in the contract (Bonnau v. Caravan International Corporation, 205 Kan. 154, 159, 468 P.2d 118). It is not necessary, however, that the third party be the exclusive beneficiary of all the promisor’s performance. The contract may also benefit the contracting parties as well (17 Am. Jur. 2d, Contracts, § 306, pp. 731-732; 17A CJS, Contracts, § 519 [4] f., p. 983).” p. 473. Plaintiffs base their action against Globe upon their contention that they are third-party beneficiaries under the construction sequence note set forth on page 4 of the plans, quoted in full above. Plaintiffs claim that this provision, designed to require access to plaintiffs’ business during the course of construction, makes them third-party beneficiaries. The plan note, however, does not evidence any clear intent to benefit any particular person or business; access would benefit the general public as well as the proprietors of the businesses along George Washington Boulevard. The Idaho Supreme Court, dealing with a similar situation in Davis v. Nelson-Deppe, Inc., 91 Idaho 463, 424 P.2d 733 (1967), said: “Absent a manifested intent to the contrary, construction contracts between a contractor and a state or other public body for highway repair or construction of a new highway are generally not considered as being for the benefit of third persons, but are, on the one hand, for the benefit of the State in the performance of its duties to maintain highways on behalf of the public, and, on the other hand, for the benefit of the contractor by way of compensation to be paid.” p. 467. We agree with that statement. Even though the construction sequence note in the contract before us indicates that the parties were concerned with the maintenance of some access to the businesses along the construction route, the parties to the contract made it abundantly and expressly clear that they did not intend to create contractual rights in third parties. Section 107.21 of the specifications -states in no uncertain terms: “It is specifically agreed between the parties . . . that it is not intended by any of the provisions of any part of the Contract to create the public or any member thereof a third party beneficiary hereunder, or to authorize any one not a party to this Contract to maintain a suit . . . pursuant to the terms or provisions of this Contract. . . .” The contract was obviously for the benefit of the City, through its agent the State Highway Commission, for street improvement, and for the benefit of Globe by way of remuneration for its services. Any benefits to occupants of adjoining lands was merely incidental. We conclude and hold that plaintiffs are not third-party beneficiaries under the street improvement contract, and that they are not entitled to enforce the contract or seek damages against the contractor for claimed breach thereof. Other points raised by the parties have been considered, but need not be determined in the light of our disposition of this case. The judgments of plaintiffs against Globe Construction Co., Inc., are reversed; the summary judgment in favor of the City of Wichita and the Secretary of Transportation on plaintiffs’ inverse condemnation claims is affirmed.	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Rogg, J.: This is an appeal by a former employee from the denial of certain unemployment benefits. The issue raised and the scope of this court’s review is the narrow question of whether the Kansas Employment Security Board of Review made sufficient findings of fact as required by K.S.A. 1980 Supp. 44-709. Appellant was employed by Venture Stores as a baker from September 19, 1975, until his termination on September 26, 1978. Pursuant to the Employment Security Law, K.S.A. 44-701 et seq., appellant filed a claim for unemployment benefits on October 13, 1978. By decision dated October 17, 1978, the examiner found in relevant part: “The claimant was discharged for a breach of a duty owed the employer. “Disqualification period begins 09-24-78 and ends 11-11-78. “The claimant was dismissed for failure to comply with instructions, procedures, and/or policies of the employer. “The law, K.S.A. 44-706, provides that an individual shall be disqualified from benefits for seven (7) weeks beginning with the week the individual has been discharged for breach of a duty connected with the work. Breach of a duty means that an employee has contributed to, or caused the unemployment by bringing about discharge through violation of some duty or responsibility. There must be a disregard of the standards of behavior which the employer has a right to expect of the employee.” Appellant appealed the examiner’s disqualification of benefits to the referee (provided for by K.S.A. 1980 Supp. 44-709[c]), who made substantial findings of fact and gave an extensive opinion supporting his decision reversing the examiner. The decision of the referee was appealed by the employer, Venture Stores, to the Employment Security Board of Review pursuant to K.S.A. 1980 Supp. 44-709(c). The Board of Review rendered its decision on January 9, 1979, and in pertinent part made the following findings: “The majority of the Board . . . finds that the examiner’s decision dated October 17, 1978 is both legally and factuallly correct and is substantiated by the evidence and that the decision of the Referee mailed on November 21, 1978 should be and is hereby set aside and the examiner’s decision above stated is hereby affirmed as if fully set forth herein.” Timely appeal was taken from the decision of the Board to the district court, where the court found in relevant part: “The Court, after being fully advised in the premises, finds that the decision of the defendant Employment Security Board of Review made on January 9, 1979, is both legally and factually correct and that there is sufficient evidence in the transcript of proceedings to support the defendant’s decision in the matter. The Court further finds that the plaintiff herein, has not been denied any constitutional rights and that he has been granted a full, fair and complete hearing, as to the merits of the case. The Court therefore finds that the decision of the defendant Employment Security Board of Review should be and is hereby affirmed.” The appellant took his appeal from the district court’s findings, and thus our consideration of the matter. Two recent cases set out the general law applicable to the issue here involved. In Blue Cross & Blue Shield v. Bell, 227 Kan. 426, Syl. ¶ 1, 607 P.2d 498 (1980), the following is stated: “An administrative agency must assume the responsibility of expressing the basic facts on which it relies with sufficient specificity to convey to the parties, as well as to the court, an adequate statement of the facts which persuaded the agency to arrive at its decision. Thus, there must be findings on all applicable standards which govern the agency’s determination, and the findings must be expressed in language sufficiently definite and certain to constitute a valid basis for the order, otherwise the order cannot stand.” More recently, in Kansas State Board of Healing Arts v. Acker, 228 Kan. 145, Syl. ¶¶ 6 and 7, 612 P.2d 610 (1980), the Supreme Court noted: “Detailed findings of fact and conclusions by an administrative agency are recommended and are of great help to the trial court and appellate courts in reviewing administrative decisions.” “Specific findings of fact by an administrative agency, while desirable, are not indispensable to a valid decision in the absence of a statute or rule requiring them.” It should further be noted that in a proceeding reviewing the action of the Employment Security Board of Review, the scope of judicial review is set forth in K.S.A. 1980 Supp. 44-709(i)(5), and the findings of fact made by the Board, if supported by evidence, are conclusive and binding upon the district court. Farmland Foods, Inc. v. Abendroth, 225 Kan. 742, Syl. ¶ 2, 594 P.2d 184 (1979). In the present case, K.S.A. 1980 Supp. 44-709(f)(5) requires the Board to make findings of fact in support of a decision. In this case the Board of Review adopted the examiner’s findings as its own findings of fact and decision. The Board makes no other findings and makes no further explanation for its decision. The two major findings of the examiner were that (1) appellant was discharged for a breach of a duty owed the employer, and (2) appellant was dismissed for failure to comply with instructions, procedures and/or policies of the employer. The first finding is a conclusion of law and the second is an ultimate finding at best. Both conclusions are inadequate in the absence of basic findings. Although there are several reasons for requiring detailed findings of fact by an administrative body, the most significant reason in terms of judicial review is that no meaningful review can occur unless the court is made aware of the findings of fact which are the basis upon which the review board relied and the reasoning that was used to arrive at its decision. In a case such as the present case, it is most difficult if not impossible for the appellant to meaningfully respond on appeal to such vague and indefinite findings. There is no explanation in this case of what instructions, procedures or policies were breached by the appellant. There is, in effect, an adjudication unsupported by any factual findings. The above conclusion dictates that the judgment of the district court be reversed and that the court remand the matter to the Employment Security Board of Review so it can make findings of fact and give an explanation of its decision for consideration by the district court sitting in review of the Board’s decision. The judgment of the district court is reversed and remanded with directions.	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Meyer, J.: This case involves the question of whether there was a breach, or breaches, of a lease agreement. Appellants, Mary Dolores Baca and Susan Robertson Gerard, as individuals and as trustees of the Louise V. Stover Trust, who were owners of the property in question (landlords), brought this action alleging that appellee Walgreen Co. (tenant) had breached its lease with the landlords by failing to comply with a demand that the tenant install .a dry fire extinguishing system and automatic fuel cut-off device for the cooking appliances. The landlords sought cancellation of the lease and possession. The tenant counterclaimed for damages for constructive eviction and harassment, and also for failure to make certain repairs. The tenant also requested declaratory judgment enjoining landlords from further harassment, and ordering the landlords to make certain repairs. The pertinent parts of the lease agreement are as follows: “2. . . . Landlord shall furnish to the leased premises at all times sufficient sewer, gas, water and electric service lines of sufficient capacity as required by Tenant, which shall be connected to an adequate source of supply or disposal. “4. Tenant shall not use the leased premises for any unlawful'purpose. Tenant shall comply with the valid requirements of public authorities regarding the manner of the conduct of Tenant’s business in the leased premises, but as to the leased premises, Landlord shall make all changes or installations so required. “5. Tenant shall make repairs to the interior of the leased premises and plate glass replacements, except as provided below. Landlord shall maintain and make all repairs to the exterior and structural portions of the building, sidewalks, parking and other common areas, entrances to the leased premises, pipes, ducts, wires and conduits leading to and from the leased premises. Landlord shall make all repairs required by the fault of Landlord or by fire, casualty or the elements, or by dry rot or termites. Landlord shall keep basement free from water but shall not be liable for any damage except upon failure so to do after notice. The provisions of this paragraph shall be complied with as required from time to time. Landlord shall make repairs and replacements to heating and air conditioning equipment costing in excess of $200 in each instance. “9. Tenant may install and operate interior and exterior electric and other signs, soda fountain machinery and any other mechanical equipment, and in so doing shall comply with all lawful requirements. . . . “19. If any rent is due and remains unpaid for ten days after receipt of notice from Landlord, or if Tenant breaches any of the other covenants of this lease and if such other breach continued for thirty days after receipt of notice from Landlord, Landlord shall then, but not until then, have the right to sue for rent, or to terminate this lease or Tenant’s right to possession and re-enter said premises, but if Tenant shall pay said rent within said ten days, or in good faith within said thirty days commence to correct such other breach, and diligently proceed therewith, then Tenant shall not be considered in default. ... If Landlord shall from time to time fail to perform any act or acts required of Landlord by this lease and if such failure continues for thirty days after receipt of notice from Tenant, Tenant shall then have the right, at Tenant’s option, to perform such act or acts and the full amount of the cost and expense so incurred shall immediately be owing by Landlord to Tenant, and Tenant shall have the right and is hereby irrevocably authorized and directed to deduct such amount from the rent. No delay on the part of either party in enforcing any of the provisions of this lease shall be considered as a waiver thereof. “28. Supplementing Article 19— “If by reason of default of Tenant, Landlord shall terminate Tenant’s right to possession of the leased premises, Tenant shall nevertheless remain liable to Landlord for the payment in full and when due of all rent reserved under this lease for that portion of the unexpired term up to the next optional termination date under Article 14. In such event Landlord shall have the right to relet the leased premises, for the account and benefit of Tenant, but until so relet, Tenant shall continue to pay rent to Landlord when due and payable; if the leased premises shall be so relet by Landlord and if a sufficient sum shall not be realized from such reletting to fully pay the rents reserved hereunder, then Tenant shall pay to Landlord monthly, the amount of each such monthly deficiency.” The following facts are as found by the trial court. The lease was originally entered into between the tenant and George and Bertha Gordon (landlords’ predecessors in title) on April 1, 1960. Under an earlier judgment June 13, 1977, the tenant became attorned to the landlords herein under the terms of the lease. (Affirmed on appeal, unpublished opinion No. 50,586, filed March 14, 1980.) The need for fire extinguishing equipment in the tenant’s store first became known to the landlords in April, 1978, as a result of a loss control engineering report prepared by the insurer of the premises. On May 11, 1978, the landlords sent a letter to tenant’s central office requesting tenant to make the corrections recommended by the report. On July 13, 1978, the landlords inquired about progress at the Walgreen store and were informed that nothing had been done in the 815 Kansas Avenue store, although such a system had been installed in the Walgreen store at the White Lakes Shopping Center. The landlords had received notice that the insurance coverage would be cancelled if the cooking surfaces protection problem could not be solved. On July 17, 1978, the landlords received a letter from the central office of the tenant stating that after reviewing the lease tenant had found no grounds to undertake installation of the fire protection system at its own expense. On the same date, the landlords sent a letter to the tenant entitled, “Demand and notice of further default under those remaining provisions of April 1, 1960, contract which are still operative.” The notice demanded that the tenant shut down the operation of the cooking surfaces until a fire extinguishing system could be installed, meeting approval of the insurer of the premises. The notice also stated the tenant was in default by violating its “implicit covenant to operate its business in a safe manner so as to avoid the unnecessary risk of fire in the premises and the imposition on its land lords of excessively high costs for fire and other casualty insurance.” The notice also stated that tenant must, within thirty days of receipt of the notice, undertake the installation of the fire extinguishing system, refrain from cooking, or warrant that the landlord would be provided fire insurance on their building at a certain rate. If tenant failed to do so, then at the end of the thirty-day period, tenant would have to remove itself from the premises. The landlords were informed on July 21, 1978, by house counsel for tenant, that tenant would modify the fire extinguishing system. On July 25, 1978, the tenant contacted Keller Fire & Safety Equipment Company of Kansas City to get an estimate on such a system and said estimate was made and communicated to tenant on July 28, 1978. Tenant sent an order on September 26, 1978, to Keller Fire & Equipment Company indicating that the work should progress. The landlords spoke with an employee at tenant’s store on August 18, 1978, and September 7, 1978, regarding progress on installation of the system and were informed nothing yet had been done. A meltdown of electrical wires occurred on the property in the interior of the building on approximately September 30, 1978. The cause of the problem was an electrical malfunction in the electrical junction box. A leak in the steam pipe under the threshold in the store area and near the junction circuit box of the store caused a short circuit and meltdown in the electrical box, the same having been caused by a foreign substance (rust) in the junction box. It was discovered on October 3, 1978, that the system ordered from Keller Fire & Equipment Company would not work in the store, since the existing system (which was located in the vents but not over the cooking surfaces) was not the same system as the one proposed to be installed. On October 3, 1978, the landlords had a telephone conversation with tenant’s central office. The landlords were told that the Keller Fire & Equipment Company could not install the dry fire extinguishing equipment, but that E-Kan Inc. Fire Equipment Sales and Service would inspect the premises either that day or the next. An estimator for E-Kan Inc. went to the store at the request of the tenant on October 4, 1978. The landlords learned of this on October 5, 1978, after telephoning E-Kan Inc. and speaking with an employee there. On October 9, 1978, the landlords learned that Kemper Insurance Companies would be sending out a notice of cancellation of insurance effective November 11, 1978, unless the desired fire prevention system was installed. Landlords heard from E-Kan Inc. on October 10, 1978. E-Kan Inc. stated it was told by tenant’s manager that its headquarters wanted nothing done to the surfaces being used for cooking in the back kitchen, but only wanted something done in the front serving line. The landlords then called the Topeka Fire Department concerning fire prevention systems required by law for restaurants. On October 10, 1978, landlords sent tenant a letter entitled “Supplemental declaration of forfeiture of right of possession under former sublease and notice of additional defaults.” Such letter listed additional defaults of failure to repair the steam service line and the maintenance of a severely cluttered eastern one-third of the basement of the premises. Tenant was given thirty (30) days to take corrective action with respect to these conditions. The letter further stated that the landlords reiterated their previous declarations terminating tenant’s right to possess the premises and informed tenant that should the owners be able to replace the insurance protection, they would accept tenant as a continuing month-to-month tenant upon the condition that beginning November 1, 1978, tenant would pay the sum of $4,200.00 monthly in advance as rent. The letter further stated that in event such terms were unacceptable, tenant should give written notice within fifteen (15) days so that landlord could take steps to rerent the premises, and that premises should be surrendered by midnight, November 9, 1978. E-Kan Inc., on October 10, 1978, issued an estimate to the tenant for the cost of installing the automatic fire protection equipment over the cooking appliances and automatic shut-off switch ($1,707.75). Landlords sent a letter to the State Fire Marshal on October 11, 1978, making a request for inspection and report of the store premises. On October 12, 1978, the property was inspected by the Deputy State Fire Marshal and the Topeka Fire Department. The property was found to be in violation of K.S.A. 1978 Supp. 31-133, and K.A.R. 22-13-4, regarding automatic extinguishing systems to be installed over cooking equipment. The following day the inspectors made a report finding problems with emergency lighting, egress, corridor enclosure and smoke doors, and a few other items such as locks, exit signs and debris, poor smoking habits, frayed wiring and loose wiring and plugs, as well as the violation for failure to have an extinguishing system over the cooking equipment and remote pull and automatic fuel shut-off device. Landlords filed suit on October 19, 1978, against the tenant for breach of lease. On October 20, 1978, house counsel for tenant told landlords that there were only three manufacturers nationally of dry fire extinguishing systems and there was a long waiting period for delivery of the unit. Landlords called E-Kan Inc. on October 25, 1978, and were told that it had a dozen units in stock and that there would be no delay in securing the units. E-Kan Inc. had received no order from tenant in response to its estimate. On November 17, 1978, house counsel for tenant sent three letters to the landlords. The first letter notified landlords of their failure to install a dry fire extinguishing system in the grill area at the store. The second letter notified landlords of their failure to repair and relocate the electrical junction box as required by the local fire code. The third letter notified landlords of their failure to repair and replace the heating system including all steam lines. Tenant gave further notice that in the event landlords failed to take the requested actions within thirty days, tenant would perform the necessary work at the cost and expense of landlords. On November 20, 1978, landlords sent tenant a letter entitled, “NOTICE OF DEFAULT,” and stated: “THEREFORE, PLEASE TAKE NOTICE THAT OWNERS FIND WALGREEN CO. TO BE IN DEFAULT UNDER SAID CONTRACT FOR WALGREEN’S FAILURE TO UNDERTAKE AND TO COMPLETE THE REPAIR OF THE SERVICE LINE SUPPLYING STEAM TO THE PREMISES AT 815-817-819 KANSAS AVENUE IN TOPEKA, KANSAS.” Another letter of the same date stated the reasons why landlords were not under obligation to make the repairs requested by tenant in the letters of November 17, and indicated the repairs would not be made by the landlords. The electrical junction box was repaired by Peters Electric Company on or about November 30, 1978, at tenant’s request and the total charge of $3,943.00 was paid by the tenant. Also on that date, tenant issued a purchase order to E-Kan Inc. for the fire extinguishing system. Sometime during the first two weeks of December, 1978, the dry fire extinguishing system and automatic fuel/power shut-off were installed. The trial court concluded that the tenant was obligated under the lease to install, at its own expense, the dry fire extinguishing system and the automatic fuel/power shut-off device. It further concluded that tenant was obligated under the lease to comply with the valid requirements of public authorities regarding the manner in which the tenant conducted its business in the leased premises. Consequently, tenant was required to comply with the findings and requirements of the State Fire Marshal as contained in the report of such agency dated October 13, 1978. However, the court held there was no requirement of compliance until tenant received actual notice of such findings and requirements of the State Fire Marshal. The court further found the landlord had “failed to sustain the burden of proving that the defendant Walgreen has materially breached the terms of the lease agreement of April 1, 1960, by reason of failure to install such dry fire extinguishing system and automatic fuel/power shut-off device for the following reasons: “(a) Written notices of default or forfeiture sent by plaintiff to defendant prior to the report of the State Fire Marshal on October 13, 1978, failed to notify defendant of its obligation to install the dry fire extinguishing system and the automatic fuel/power shut-off device as required by Article No. 4 of the lease for the reason that the valid requirements of public authorities had not been established prior to such time. “(b) Defendant Walgreen was under no obligation to install dry fire extinguishing system and the automatic fuel/power shut-off device merely upon request of plaintiff’s insurance company. “(c) Plaintiffs failed to give written notice to defendant as required by Article 19 of the lease of defendant’s breach in failing to comply with the valid requirements of public authorities as required by Article No. 4 of such lease after the official report of the State Fire Marshal on October 13, 1978. “(d) A good faith dispute existed between plaintiffs and defendant with respect to the obligation of installing the dry fire extinguishing system and the automatic fuel/power shut-off device. Defendant sent a written demand to plaintiffs on November 17, 1978, requesting plaintiffs to install such equipment. Plaintiffs responded in writing on November 20, 1978, rejecting such demand of defendants. In a relatively short period of time thereafter, defendant installed within the first two weeks of December, 1978, such equipment at its own expense. In view of all the facts and circumstances disclosed by the evidence, the conduct of defendant in installing such equipment was not unreasonable and cannot constitute a material breach of the terms of the lease in question.” As to the electrical junction box, it was determined that such was damaged by fire on September 30, 1978, and landlords were required to make all repairs by reason of such fire and to comply with the valid requirements of public authorities regarding the leased premises as required by Article 4 of the lease. Therefore, tenant was entitled to judgment against the landlords in the sum of $3,943.00 pursuant to Article 19 of the lease. All other violations were held not to constitute a material breach of the provisions of the lease agreement. The court also held that the landlords had failed to sustain the burden of proving tenant had breached any covenants implied by law with respect to the lease. Further, the court held that the tenant had failed to sustain the burden of proving constructive eviction by reason of the conduct of the landlords. The costs of the action were taxed to the landlords. The landlords appeal from the judgment that the failure to install the fire extinguishing system was not a material breach, and from the award of $3,943.00 as costs of repair to the electrical junction box. The tenant cross-appeals from the judgment that it was its obligation to install the fire extinguishing system and from the judgment denying its claim for constructive eviction and punitive damages. The tenant also raises several issues regarding damages for repairs not done by the landlords, which issues were not decided by the trial judge. Tenant first contends on cross-appeal that the court erred in finding tenant was required by the lease to pay for and install the fire extinguishing system. We address this issue first, even though raised by cross-appellant, because its resolution affects other issues. The tenant raises this issue asserting it should have been awarded the costs of installing the fire extinguishing system. Whether the lessee or lessor is bound to make improvements or alterations required by governmental authorities must be deter mined on the particular facts and circumstances of each case. Mid-Continent Life Ins. Co. v. Henry’s Inc., 214 Kan. 350, 356, 520 P.2d 1319 (1974). Mid-Continent is one of the few Kansas cases on the subject. In Mid-Continent, the court was faced with a situation in which the lessee had covenanted to make all repairs for maintenance, and a dispute arose over who was required to repair a wall, such repair being necessitated because the wall did not meet city building code standards. There was no provision dealing with what party was to make improvements required by public authorities or public laws. The Mid-Continent court cited the law as summarized in Gaddis v. Consolidated Freightways, 239 Or. 553, 398 P.2d 749 (1965): “ ‘We have examined all of the available authority on the subject and conclude, . . . that the criterion applied by the courts is briefly but fully stated in 1 American Law of Property, . . (1952, § 3.80 beginning at p. 353.) ‘Because the statement is concise we copy it in full: “ ‘ . . If the lessee does not expressly covenant to repair, it would seem clear that he generally should be under no duty to make alterations and repairs required by governmental authority in order to conform the premises to health and safety laws. Any changes likely to be ordered for this purpose would be beyond the scope of the tenant’s common law duty to repair, and the expenses of compliance are properly regarded either as capital expenditures or as necessary carrying charges to be paid out of the rent. “Where the lessee covenants to repair, the question of who should bear the cost of compliance depends upon the nature of the alteration or improvement and the reason for requiring it. If the order involves mere repairs which the lessee would normally be required to make under his covenant, he should bear the cost. Likewise, the burden is on the lessee where the alteration is required only because of the particular use which he is making of the premises, although it may be questioned whether even in this case, the courts would place the burden of extensive and lasting improvements on the lessee, except perhaps where the lease is for a long term. At any rate, if the order requires the making of such improvements, so-called ‘structural’ changes, and they are not required because of the particular use made of the premises by the lessee, the lessor must bear the burden of compliance.’ ” (pp. 557, 558.)” 214 Kan. at 356. (Emphasis added.) The court in Mid-Continent held: “Under the facts and circumstances in this case it is held that the trial court did not err in requiring alterations and improvements to an exterior wall in a leased building to be made by the lessor where (1) the improvements were substantial and structural in nature; (2) the improvements will survive the term of the lease between lessor and lessee and thus will inure to the primary benefit of the lessor; (3) the improvements were not required by or because of any particular use made of the premises by the lessee; (4) the cost of such improvements were substantial as opposed to nominal; and (5) the event which necessitated the improvement was unusual, extraordinary and unexpected and not within the contemplation of the parties at the time the lease was executed.” (Emphasis added.) 214 Kan. 350, Syl. ¶ 3. There are many cases collected at 22 A.L.R.3d 521 dealing with who, as between landlord and tenant, must bear the expense of alterations or repairs ordered by public authorities. One particular factor discussed therein and applicable to the present case is where the improvement is necessitated by the particular use of the premises. In First Nat. Stores v. Yellowstone S. Ctr., 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868 (1968), the tenant was held responsible for installation of a sprinkler system required by governmental authority. The necessity for the sprinkler system arose primarily because of the manner in which the tenant used its premises. The facts in First National are quite similar to the facts of the instant case, although the language of the lease in First National is clearer as to the responsibility of the parties than the lease in the instant case. The court held in First National that the tenant was required to install the sprinkler system because it was required by a governmental authority as a result of the tenant’s specific use of the premises. Other cases have recognized the general rule that unless the lease states otherwise, where a lasting improvement is necessitated by a change in the law and not by the tenant’s use of the premises, the tenant is not liable. In Fontius Shoe Co. v. Indus. Western, Inc., 42 Colo. App. 236, 596 P.2d 1209 (1979), the sprinkler system was required by the law in several businesses in a shopping center regardless of the nature of the business. In Mayfair Merchandise Co. v. Wayne, 415 F.2d 23 (2nd Cir. 1969), the landlord was held responsible for installation of a sprinkler system necessitated by a change in the law. The Mayfair court listed the factors in construing a lease with regard to who should make such repairs: “ ‘The intention of the parties will be gathered by considering the lease as a whole; having in mind the length of the term; the rental reserved for the entire term as compared with the cost of the work to be done; whether the work was caused by the use of the premises by the tenant, by a change in governmental policy, or by a defect in the premises; the relative benefits of the work to the respective parties to the lease; and what the parties must have had in contempla tion when they executed the lease.’ ” (Emphasis added.) 415 F.2d at 25, citing from Rasch, Landlord and Tenant and Summary Proceedings § 588 (1950). In the case at bar, it is clear that the installation of the sprinkler system was necessitated by the use of cooking equipment in the store. The language of the lease makes tenant responsible for compliance with orders of public authorities regarding conduct of the business in the leased premises and the landlords responsible for changes required by public authorities in the leased premises. The language of the lease is not clear and, tenant argues, should be construed to mean that the landlords should make all alterations in the leased premises when ordered by public authorities and the sentence dealing with conduct of the business refers to the manner of conducting business, such as not selling alcoholic beverages illegally or maintaining sufficient cleanliness standards, etc. However, we believe the better view is that since the cooking equipment was installed by the tenant, and since such installation caused the sprinkler system to be required, the tenant should install and pay for same. To hold otherwise would be almost as illogical as making the landlords pay for the cooking equipment itself. Furthermore, the lease here was prepared by tenant. Since it is a written lease, we have the same opportunity as did the trial court to determine the question of ambiguity. Snodgrass v. Bloomcamp, 225 Kan. 65, 587 P.2d 316 (1978). We conclude it is ambiguous. As the Supreme Court said in Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 363, 552 P.2d 917 (1976): “Another rule of construction is that an ambiguous contract will be construed strictly against the party who drew or prepared it and liberally toward the other party.” We conclude the trial court was correct in holding the tenant responsible for the expense of installing the sprinkler system. Tenant further contends that the court erred in failing to find the doctrines of res judicata and judicial estoppel applicable and in failing to dismiss the landlords’ claim. Tenant asserts the landlords’ claim should have been asserted in an earlier case between the parties and is barred by res judicata. “The salutary rule of res judicata forbids a suitor to twice litigate a claim for relief against the same party. The rule is binding, not only as to every question actually presented, considered and decided but also to every question which might have been presented and decided. [Citations omitted.] In Kansas the rule of res judicata is not binding and does not apply to a different claim for relief even though it may be between the same parties. [Citations omitted.]” Hutchinson Nat'l Bank & Trust Co. v. English, 209 Kan. 127, 130, 495 P.2d 1011 (1972). The test for determining whether the claims for relief are the same is whether the primary right and duty and delict or wrong is the same in each action. 46 Am. Jur. 2d, Judgments § 406, p. 575. “[T]he doctrine of res judicata prevents the splitting of a single cause of action or claim into two or more suits. The doctrine of res judicata requires that all the grounds or theories upon which a cause of action or claim is founded be asserted in one action or they will be barred in any subsequent action.” Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 138, 140, 531 P.2d 435 (1975). Tenant alleges that the claim for breach of the lease for failure to install the fire extinguishing system should have been alleged as part of the earlier suit (No. 50,586). That case was filed by the landlords against their former lessee, the Gordons, seeking to enjoin payment by Walgreens to the Gordons and requesting that Walgreens be attorned to the landlords under said lease. Walgreens was a sublessee of the Gordons. Walgreens intervened and filed a motion for declaratory judgment requesting landlords be enjoined from evicting it. The dispute-between Walgreens (tenant herein) and the landlords was decided October 19, 1977, as shown by the court’s journal entry. The cause of action in the instant case for breach of the lease for failure to install the fire extinguishing system arose, at the earliest, thirty days after the notice of forfeiture in July, 1978. The tenant relies on the fact that final judgment was not entered in No. 50,586 until October, 1978; however, that judgment related to damages suffered by the landlord from the Gordons’ breach. The court, in the earlier case, retained jurisdiction to try that issue only and Walgreens was no longer listed in the heading of that journal entry of judgment as all claims between Walgreens and landlords had been resolved by the October 1977 journal entry, and Walgreens was no longer a party in the later proceedings. Furthermore, the two lawsuits involved separate claims for relief in that separate wrongs were involved. The dispute be tween Walgreens and landlords in the earlier case involved payment of rent, whereas here the dispute is over who is to make repairs. Res judicata does not apply to different claims for relief. Separate claims for relief need not be joined in one action. Joinder is permissive only. Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 138; K.S.A. 60-218. We next reach the landlords’ issues. Landlords claim that the court erred in ruling there was no material breach of the lease in tenant’s failure to install the fire extinguishing system because the tenant had no duty to comply with state fire laws and regulations until notified by the State Fire Marshal. The trial court ruled that the valid requirements of public authorities had not been established prior to the report of the State Fire Marshal on October 13, 1978. The landlords argue that this was error in that tenant had a duty to comply with state laws and regulations before notified to do so by the State Fire Marshal. We agree. The regulation violated was K.A.R. 22-13-4, which provides: “In addition to the provisions of 22-13-3, all facilities maintaining commercial cooking equipment shall have approved automatic extinguishers mounted in the ventilation canopies or directly above such equipment. All equipment must bear the underwriters’ laboratories label and be of an approved type extinguishing agent such as CO2 or dry chemical. Before any extinguishing system can be accepted it first must meet the approval of the Kansas state fire marshal; Provided, however, The authority having jurisdiction may exempt a facility from the requirements of this section, if, in his opinion, the waiving of this requirement would not present a definite life safety hazard.” K.A.R. 22-13-32 allows facilities in service prior to the effective date of the regulations in Article 13, and not in conformity therewith, to continue in service so long as such facilities are not determined by the State Fire Marshal to constitute a distinct hazard to life or property. See also K.S.A. 1978 Supp. 31-133(c). While this regulation allows the State Fire Marshal to exempt certain facilities from operation of the regulations and allow them to continue to operate, this does not mean that up until such time as inspection occurs, there is no violation. The penalty section of the statute makes clear that there are separate violations contemplated by the act. K.S.A. 1978 (now 1980) Supp. 31-150a(a) provides: “Any person who violates any provision of this act or the act of which this act is amendatory, or who violates any rule or regulation adopted pursuant thereto, or who violates any lawful order issued by the state fire marshal or by any of the persons designated in K.S.A. 1972 Supp. 31-137, shall be guilty of a class B misdemeanor, and each day that the offense continues after receipt of written notice thereof issued by the state fire marshal, or by any other person designated in K.S.A. 1972 Supp. 31-137, shall constitute a separate violation. Notice of any such violation shall be sent by restricted mail, as defined in K.S.A. 1972 Supp. 60-103, but refusal of the addressee to receive such notice shall constitute receipt thereof.” We note there is an infraction upon violation of the regulation, violation of a lawful order issued by the State Fire Marshal, and also a separate violation for each day that the offense continues after written notice of violation has been sent. It is clear that tenant was in violation of the regulation even prior to the issuance of the fire marshal’s report. Since the tenant was at that time in violation of the law, tenant was not complying with the provisions of the lease requiring tenant to comply with the valid requirements of public authorities regarding the manner of the conduct of tenant’s business in the leased premises (Article 4), nor was tenant operating me-' chanical equipment in a manner to comply with all lawful requirements (Article 9). The fact that tenant did not know it was required by law to install said equipment is no excuse. “It is a legal maxim that everyone is presumed to know the law.” Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 88, 367 P.2d 44 (1961). The trial court’s assumption that the valid requirements of public authorities had not been established prior to the report of the State Fire Marshal was, therefore, erroneous. Landlords next contend that the court erred in ruling there was no material breach of the lease in tenant’s failure to install the fire extinguishing system because notice of default was ineffective in that it preceded the fire marshal’s report. As noted above, tenant was in violation of the law prior to said report and consequently the covenants of the lease connected therewith, and therefore, the landlords were authorized to give notice of breach and forfeiture pursuant to Article 19 of the lease. The notice of forfeiture of July 17, 1978, however, stated an incorrect reason for forfeiture. It notified tenant of a breach of the “implicit covenant to operate its business in a safe manner so as to avoid the unnecessary risk of fire in the premises and the imposition on its landlords of excessively high costs for fire and other casualty insurance.” Under the lease, forfeiture is warranted for breach of specific covenants of the lease only, and not for breach of implied covenants. If, in fact, tenant breached an implied duty to refrain from unnecessarily exposing the premises to an additional fire hazard, the remedy for said breach would be an action in damages, not forfeiture of the lease. We have found no cases in which the landlord gave notice of forfeiture on the wrong grounds. It is clear that notice of forfeiture is necessary in order to terminate the lease for use of the property for violation of the law. The Restatement (Second) of Property § 12.5 (1977), comment e, provides that a lease is not automatically terminated by use of the leased property for an illegal purpose, adding that in order for a lease to be terminated by a landlord, he must give the tenant a notice in which is stated the date of termination and the reason why the remedy of termination is in order. “In the absence of sufficient specificity to convey notice to the lessee of the precise nature of his delinquency, forfeiture should not be permitted.” Sherwood Med. Industries v. Bldg. Leasing, 527 S.W.2d 407, 411 (Mo. App. 1975). We are of the opinion that the notice of July 17, 1978, if standing alone, would be insufficient notice of forfeiture because it specified the wrong breach. Following the notice of July 17, 1978, an additional notice of breach was sent October 10, 1978. This notice of breach merely incorporated the earlier notice so it was not a delineation of the correct reason for the breach, i.e., failure to comply with lawful requirements of public authorities. However, suit was filed October 19, 1978, and served October 20, 1978. The petition adequately alleged a breach by failure of the tenant to install the fire extinguishing equipment which, by its conduct, failed to comply with the valid requirements of public authorities regarding the manner of the conduct of the tenant’s business. The landlords prayed that the lease be declared forfeited. It was held in Groendycke v. Ellis, 205 Kan. 545, 549, 470 P.2d 832 (1970), that the filing and maintenance of an action was notice of default and forfeiture to a tenant in a suit for forfeiture for nonpayment of rent. “This positive manifestation of intent gave appellees ample opportunity to correct the default and sufficiently satisfied the notice proviso in the lease (see 51C C.J.S., Landlord & Tenant, § 114 [3]).” 205 Kan. at 549. In the instant case the lease provides that if breach continues for thirty days after the notice of breach, landlords have the right to terminate the lease and reenter said premises. But if tenant in good faith within said thirty days commences to correct such breach and diligently proceeds therewith, then tenant is not considered in default under Article 19 of the lease. The trial court did not reach the issue of whether tenant commenced to correct the breach and diligently proceeded therewith within thirty days from the notice. Thus, we must decide whether efforts made by the tenant, after notice, were diligent. While, as we have said, the July 17, 1978, and other notices were insufficient in that they failed to state the proper reason for forfeiture, we deem it proper to set out that unquestionably the tenant knew for many months before the inception of this lawsuit the reason why the landlords were complaining. While such fact, standing alone, would not constitute proper notice so as to permit forfeiture, such evidence is entitled to some weight when considering whether the tenant acted with due diligence after the notice was given. As shown by the findings of the trial court, as early as May, 1978, tenant knew that landlords were complaining about tenant’s failure to install a proper fire extinguishing system which was necessitated by tenant’s cafe business. On July 17, 1978, tenant was notified that its lease was subject to forfeiture, and although the formal part of said notice contained the wrong reason for forfeiture, yet the same notice made known to tenant that landlords were still complaining of the lack of fire extinguishing system. The second written notice of forfeiture further reminded tenant of the landlords’ complaint. The commencement of suit on October 20, 1978, disclosed good and sufficient reason for forfeiture. Notwithstanding such long-time actual knowledge, the tenant did not send a purchase order for installation of the required fire extinguishing equipment until November 30, 1978, more than thirty days after it received notice of breach, and over a month and a half after they had received E-Kan Inc.’s estimate of October 10, 1978. We conclude the tenant did not exercise due diligence in acting promptly after October 20 to effect the installation of the fire extinguishing system. Landlords also contend the court erred in ruling there was no material breach of the lease in tenant’s failure to install the fire extinguishing system because a good faith dispute over who had the obligation to install the system rendered the alleged breach reasonable and nonmaterial. We have found no cases and none have been cited by the parties in which a good faith dispute over who is to make a certain repair will allow equitable relief from a forfeiture provision. On the contrary, it was held in First Nat. Stores v. Yellowstone S. Ctr., 21 N.Y.2d 630, that there was no acceptable basis for disallowing a forfeiture even though there was a declaratory judgment action filed by the tenant within the time period required by the lease for compliance. There is no clearer case of a good faith dispute than First Nat. Stores v. Yellowstone S. Ctr., 21 N.Y.2d 630, yet the court held that since the motion for restraining order was not filed until after the termination of the lease, the forfeiture of the lease should have been upheld. We conclude the trial court’s reason in the instant case for finding a nonmaterial breach of the lease was erroneous. The trial court should have ordered the lease forfeited, as there was a material breach of the lease after proper notice of forfeiture. Landlords claim that the court erred in ruling that it was the landlords’ obligation to repair the electrical junction box. Landlords argue that the cause of the damage to the electrical junction box was the poor condition of the steam service line, and that the tenant was negligent in failing to repair the steam service line and, therefore, caused the damage to the electrical junction box. While the trial court found the damage to the electrical junction box was caused by a leak in the steam service line, there was no evidence that the leak was caused by tenant’s negligence. The lease specifically obligates the landlords to make repairs caused by fire and to comply with the orders of public authorities with regard to the leased premises (not related to the conduct of tenant’s business). The Violation Notice of the Building Inspection Department of the city of Topeka indicates the repair of the electrical junction box was repair of fire damage. Furthermore, the inspector found that repairs were necessary to comply with the National Electrical Code. This was clearly the responsibility of the landlords under the above-mentioned provisions. Even though the repair to the electrical junction box was the responsibility of the landlords, tenant failed to comply with the self-help provision which allows tenant to make the repairs itself and then charge them to the landlords. That provision states that if the landlords fail to perform any act required by the lease, and if the failure continues thirty days after receipt of notice from the tenant, tenant shall then have the right, at its option, to perform the acts and the full amount of the cost shall immediately be owing by landlords to tenant, and tenant can deduct such amount from the rent. The tenant sent the purchase order for repair to the electrical junction box on November 30, 1978, but had only sent notice to the landlords November 17, 1978. Since this was less than thirty days prior to the date the tenant made the repairs, it did not comply with the requirements of the lease. It is noted, however, that the landlords sent tenant a letter November 20, 1978, which stated that the landlords did not intend to comply with the request of the tenant. This anticipatory breach would allow tenant to make the repairs and charge landlords for the repairs. See Equity Investors, Inc. v. Ammest Group, Inc., 1 Kan. App. 2d 276, 563 P.2d 531, rev. denied 225 Kan. 843 (1977). The last set of issues are those raised by tenant in its cross-appeal. Tenant contends that the court erred in failing to enjoin the landlords from further harassment during the remainder of the lease. Landlords were merely pursuing their legal rights in suing and sending letters requesting certain acts be performed by the tenant. We see no reason for enjoining a landlord from pursuing legal rights in order to settle legal disputes. There was no error as to this issue. Tenant also contends that the court should have awarded it $4,990.00 damages for repairs to the exterior of the building which were the landlords’ responsibility. Tenant claims that it had shown $4,990.00 worth of damages for various repairs which were the responsibility of the landlords, but were not made. Tenant relies on a letter of landlords’ attorney, introduced into evidence, which stated certain work was the responsibility of the tenant’s former lessor, the Gordons. Since the landlords now stand in the shoes of the Gordons, the tenant argues landlords are responsible for the repairs. In cross-examination of the landlords, it was established that several of the repairs listed in the letter had still not been completed, namely wall flashing and pitch pockets: $1,390; alley paving: $800; and sidewalk: $1,800. There was testimony that there were also some problems with the roof leaking which had been repaired, but not to the satisfaction of the tenant. Tenant, in its brief, also raises an item in the letter delineated Simer pumps, electrical outlets, anti-pilferage chains, and outlet hoses: $1,000. The landlords testified that the Simer pumps had been replaced. The landlords admitted that these repairs were their responsibility and that the estimates had been made in conjunction with their lawsuit against the former lessors, the Gordons. There were also several letters which indicated requests for these repairs, but no notice was sent that tenant would make repairs and charge these to landlords if landlords did not comply with the request. On appeal, the landlords claim that there is no showing that the damages for these items were prayed for nor shown to be necessary or reasonable. Regardless of whether the above items were sufficient to prove the costs of repairs as necessary and reasonable, the law indicates that the damages herein requested were the wrong measure of damages. In Miller v. Sullivan, 77 Kan. 252, 94 Pac. 266 (1908), the measure of damages in breach of a covenant to repair premises by a landlord was discussed. The court cited the general rule: “[OJn a breach of the covenant by the landlord to make repairs the measure of damages is the difference between the rental value of the premises as they were and what it would have been if they had been put and kept in repair.” 77 Kan. at 253. The Miller court went on to discuss other options of the tenant and stated: “[U]pon the breach of a covenant of the landlord to repair, the tenant may make the repairs and charge the landlord therewith or he may rely upon the covenant and recover all damages flowing from the breach. (McCoy v. Oldham, 1 Ind. App. 372, 27 N.E. 647, 50 Am. St. Rep. 208.) In that case the covenant was to clear a part of the land, and the court approved the rule allowing the diminution in rental value as the measure of damages, saying that this is ordinarily the measure of recovery.” 77 Kan. at 254. The Miller court held that the tenant could recover for damages to goods in his storeroom where the landlord failed to make repairs to a roof and where the tenant gave seasonable notice to the landlord and the landlord made continual, although ineffec tual, efforts to repair. The tenant was thus able to recover the damages naturally and proximately resulting from the breach. We find no case where a tenant was able to recover the cost of making repairs as the damages, where the tenant had not made the repairs. Assuming that such costs are not the measure of damages, there is a complete failure of proof as to the damages which tenant sustained by the landlords’ failure to make repairs. There was no evidence introduced that any goods were damaged due to the failure to make the repairs, or of any other consequential damages flowing from the breach, nor was there any testimony as to the diminution in rental value from the failure to make repairs. We find no error as to this issue. Tenant also claims the court should have awarded tenant $1,200 damages for replacement of the underground steam supply pipe. There was evidence introduced that the tenant incurred $1,200 expense in replacing the underground steam supply pipe. Tenant made the repair after notice to the landlords of violation and after receiving landlords’ answer that they would not make the repair. The trial court found that the steam service line was the responsibility of the landlords, but failed to award damages for said repair. We conclude the court should have awarded said damages on the same basis as the award of the damages for repair of the electrical junction box. The provisions of the lease applicable to determine who was responsible for the repair are as follows: “2. . . . Landlord shall furnish to the leased premises at all times sufficient sewer, gas, water and electrical service lines of sufficient capacity as required by Tenant .... “5. Tenant shall make repairs to the interior of the leased premises . . . except as provided below. Landlord shall maintain and make all repairs to the exterior and structural portions of the building, sidewalks, parking and other common areas, entrances to the leased premises, pipes, ducts, wires and conduits leading to and from the leased premises. Landlord shall make all repairs required by the fault of Landlord or by fire, casualty or the elements, or by dry rot or termites. . . . “6. Landlord shall make repairs and replacements to heating and air conditioning equipment costing in excess of $200 in each instance.” (Emphasis added.) The trial court specifically found the steam service line was in the interior of the building, but was part of the heating “system” and therefore, the landlords’ responsibility under Article 5. We agree. Tenant further contends the court erred in ruling tenant had failed to sustain the burden of proving a constructive eviction and harassment, and in failing to award punitive damages therefor. Tenant claimed constructive eviction, breach of a covenant of quiet enjoyment, and harassment from the repeated efforts of the landlords to gain compliance with fire regulations and numerous notices of default, and the filing of the two lawsuits noted in this case as well as another filed in district court which was dismissed. The trial court ruled that tenant had failed to sustain the burden of proving a constructive eviction. “The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice the finding of the trial judge cannot be disturbed. An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.” Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. ¶ 5, 548 P.2d 719 (1976); Jennings v. Speaker, Executrix, 1 Kan. App. 2d 610, Syl. ¶ 8, 571 P.2d 358 (1977). We affirm the decision of the trial court on this issue. Finally, tenant contends the court erred in refusing to allow attorney fees and costs. Landlords were ordered to pay court costs by the trial court. Tenant alleges the court should have awarded it attorney fees and costs, but admits that there was no offer of evidence as to what those fees and costs were. Tenant requests that the case be remanded, so that the trial court can admit evidence as to said fees and costs. “The general rule is that attorney fees are not allowable as costs in an action in the absence of statutory authority.” In re Miller, 228 Kan. 606, 610, 620 P.2d 800 (1980). There is no statute which would allow attorney fees in this type of case, nor has counsel cited any. Further, there is no provision in the lease allowing for the award of attorney fees by agreement. The decision of the trial court is affirmed as to this issue. Affirmed in part; reversed in part, all as herein set out.	[ -15, -8, -39, -19, 10, 97, 58, -37, 99, -79, 39, -105, -19, -47, -108, 105, -80, 125, 81, 105, -109, -94, 3, 2, -10, -45, -109, 81, -71, 111, -44, 79, 72, 37, -62, -35, -126, -126, -35, 92, 2, 5, -104, -32, -11, 64, 48, 91, 0, 15, 101, -35, -13, 44, 17, -49, 76, 42, 101, 45, -14, -7, -70, 29, 107, 23, 32, 100, -100, -29, -56, 24, -102, 53, 17, -24, 115, 54, -58, 124, 7, -101, -119, 35, 98, 33, 5, -1, -56, -112, 47, -106, -113, -90, -111, 120, 27, 40, -68, -100, 116, 70, 101, 118, -26, -112, 91, 108, -106, -82, -12, -75, 13, -32, -98, -127, -18, 67, 37, 113, -50, -84, 124, 103, 115, -37, -97, -6 ]
Abbott, J.: This is an appeal from a ruling in a foreclosure proceeding that the mechanics’ liens of plaintiffs, Confinement Specialists, Inc., and Hedlund Electric, Inc., are limited to a 9.9-acre area that surrounds the work site (a confined hog unit) rather than the whole quarter-section of farm land owned by the defendants J. Chris Schlatter and Donna Jean Schlatter. Plaintiffs raise two issues in their appeal. They first contend the trial court erred when it ruled as a matter of law that their mechanics’ liens did not attach automatically to the entire quarter-section; and, second, if the trial court was correct on the first issue, that limiting the lien to 9.9 acres is not supported by competent evidence. The determinative facts are relatively simple and largely undisputed. The Schlatters moved to the quarter-section in question in 1975. The land was owned by Mrs. Schlatter’s grandfather. There was a house, barn, two-car garage, chickenhouse, hay shed and one-car garage located on the southwest part of the quarter. The quarter-section consisted of approximately fifty acres of tillable ground and the rest was pastureland. The Little Arkansas River runs from north to south on the west side of the property. A road runs along the south and east sides. There are no fences that are significant to this decision. The Schlatters contracted in May of 1976 to purchase the quarter-section. They contracted with the plaintiff, Confinement Specialists, Inc., (Confinement) in July of 1976 to purchase and have erected a confined hog building. Schlatters selected a building site on the northeast part of the quarter-section and contracted with defendant Malm Construction Co., Inc., (Malm) to do the dirt work, which included the construction of a lagoon. Malm did some other work on terraces and a waterway. Confinement started work on the building and finished it in the fall. Prior to completion of the building, the house occupied by the Schlatters in the southwest corner burned. A mobile home was purchased by Schlatters and placed on the original home site. Confinement and its subcontractor, Hedlund Electric, Inc., (Hedlund) completed their work under the contract, and Hedlund completed work for which it had separately contracted with defendants. Malm also completed its work. Schlatters were unable to meet their financial obligations, and other creditors took mortgages on the full quarter-section on which liens were timely and properly filed by Confinement, Hedlund and Malm. A fourth lien not involved in this appeal was also filed. The four liens all described the full quarter-section. Confinement and Hedlund filed suit seeking foreclosure of their liens and a determination of priorities. Cross-claims were filed by the mortgage holders seeking foreclosure of their mortgages and by the lienholders seeking foreclosure of their liens. The Schlatters filed for bankruptcy, were subsequently adjudged bankrupt and discharged. The bankruptcy court abandoned the property, for it had no value in excess of the valid claims against it. Prior to the trial, the trial judge held that the liens did not automatically attach to the full quarter-section, stating in determining the extent of the liens’ attachment that he would consider the nature of the improvement, the amount of property benefited by the improvement, and whether it constituted a separate tract or was a part of the full quarter-section. As to the cross-claimants, the trial judge granted foreclosure of their mortgages and liens. The mortgage foreclosures were allowed against the whole quarter-section. Malm’s lien foreclosure was also allowed against the entire quarter-section on the theory that in addition to working on the 9.9 acres, Malm performed some work on terraces outside the 9.9 acres that benefited the entire quarter-section. The liens of Confinement and Hedlund were limited to an unfenced 9.9-acre tract that apparently was selected on the basis of the trial judge’s personal inspection and on a survey made by the Agricultural Stabilization and Conservation Service (ASCS) for a federal Set-Aside program that showed the 9.9 acres as nonproductive. The trial court found that the hog operation was run completely separate from the rest of the farm and that there was no common equipment used in the hog-raising operation and the remainder of the farm. If the trial court is correct, it appears that Confinement and Hedlund judgments will not be paid in full. The trial court made a number of findings that need not be set forth in detail here. Basically, it found that 9.9 acres was large enough to accommodate the present hog-farming operation and provided sufficient room for expansion as originally contemplated by the Schlatters; that it was totally self-sufficient and not dependent upon the rest of the quarter-section, and was treated as a separate tract by the Schlatters. Plaintiffs urge that they performed work on a single, legally defined unit, and filed liens on that unit, and that they should not have to be subjected to extensive litigation in order to know the extent of their security. Plaintiffs argue that the trial court misapplied K.S.A. 60-1101 (now 1980 Supp.) in determining the amount of the Schlatters’ real property subject to the liens. The fact that the lien statements themselves recited that the entire quarter-section was subject to the liens is not necessarily determinative in deciding how much property is covered. See Golden Belt Lbr. Co. v. McLean, 138 Kan. 351, 26 P.2d 274 (1933). The parties agree that K.S.A. 60-1101 is controlling; they simply disagree as to its proper interpretation. K.S.A. 60-1101, in effect at the time the mechanics’ liens in question were filed, stated in pertinent part: “Any person furnishing labor, equipment, material or supplies used or consumed for the improvement of real property, under a contract with the owner or with the trustee, agent or spouse of the owner, shall have a lien upon the property for the labor, equipment, material or supplies furnished, and the lien shall be preferred to all other liens or encumbrances which are subsequent to the commencement of the furnishing of such labor, equipment, material or supplies.” (Emphasis supplied.) The crucial issue in the case at hand is determining whether the phrase “the property” refers to the entire tract of land owned by the defendants or is limited to that area of the land required for the reasonable use and occupation of the improved structure. Authority from other jurisdictions supports both positions. See 2 Jones on Liens § 1369 (3rd ed. 1914); 57 C.J.S., Mechanics’ Liens § 186(a) and (b); Annot., 84 A.L.R. 123; and Annot., 175 A.L.R. 309. The cases from foreign jurisdictions, however, are based largely on state statutes substantially different from ours; as a result, they "are of little precedential value in interpreting our statute. Boyce v. Knudson, 219 Kan. 357, 362, 548 P.2d 712 (1976). Of primary importance is the legislative intent behind the adoption of K.S.A. 60-1101. In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under various constructions suggested. Carlson v. Carlson, 4 Kan. App. 2d 63, 65, 602 P.2d 549 (1979). K.S.A. 60-1101 was formerly R.S. 1923, 60-1401, and G.S. 1949, 60-1401, which stated: “Any person who shall under a contract with the owner of any tract, or piece of land, or with a trustee, agent, husband or wife of such owner, either by himself or with horse, or team or horses and driver, or auto truck or auto truck and driver, perform labor or furnish material for the erection, alteration, moving or repair of any building, improvement or structure thereon, or who shall furnish material or perform labor by himself or with horse, or team or horses and driver, or auto truck or auto truck and driver in putting up of any fixtures or machinery in or attachment to any such building, structure or improvement, or who shall plant any trees, vines, plants or hedge in or upon such land, or who shall build, alter or repair, or furnish labor by himself, or with horse, or team or horses and driver, or auto truck or auto truck and driver, or material for building, altering or repairing any fence or footwalk in or upon said land, or any sidewalk in any street abutting said land, shall have a lien upon the whole of said piece or tract of land, the building and appurtenances, in the manner herein provided, for the amount due to him for such labor of himself, horse, team, horses and driver, or auto truck or auto truck and driver, material, fixtures or machinery. Such lien shall be preferred to all other liens or encumbrances which may attach to or upon said land, building, or improvement, or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures, or machinery, the planting of trees, vines, plants or hedge, the building of such fence, footwalk, or sidewalk, or the making of any such repairs or improvements.” (Emphasis supplied.) As we interpret the language of the former statute, the plaintiffs’ liens would have attached to the whole quarter-section owned by defendants. The Kansas legislature as part of its massive revision of the Kansas Code of Civil Procedure in 1963 amended G.S. 1949, 60-1401 (L. 1963, ch. 303, 60-1101) to its form at the time of this case. Did the legislature intend a change when it amended the statute? Defendants stress the well-settled rule of statutory construction as typified by Linson v. Johnson, Executrix, 1 Kan. App. 2d 155, 160, 563 P.2d 485 (1977), aff’d 223 Kan. 442, 575 P.2d 504 (1978): “When a statute is revised and some parts are omitted, the omitted parts are not readily to be supplied by construction but are generally to be considered as annulled. (State, ex rel., v. Richardson, 174 Kan. 382, 256 P.2d 135.) A change in phraseology or the deletion of a phrase in amending or revising a statute raises a presumption that a change of meaning was intended by the legislature. (Shawnee Township Fire District v. Morgan, 221 Kan. 271, 559 P.2d 1141.) K.S.A. 60-1610 has been referred to previously by our supreme court as having changed the law with respect to alimony and divorce. (In re Estate of Sweeney, 210 Kan. 216, 500 P.2d 56; Fiske v. Fiske, 218 Kan. 132, 542 P.2d 284.)” This interpretive presumption, however, is not to be rigidly applied, as illustrated in an early Kansas case, Hauserman v. Clay County, 89 Kan. 555, 558, 132 Pac. 212 (1913): “Ordinarily there is a presumption that a change in the language of a statute results from a purpose to change its effect, but this presumption may be strong or weak according to circumstances, and may be wanting altogether in a particular case. The accepted rule and its limitations have been thus stated: “ ‘It will be presumed that the legislature, in adopting the amendment, intended to make some change in the existing law, and therefore the courts will endeavor to give some effect to the amendment. A change of phraseology from that of the original act will raise the presumption that a change of meaning was also intended; this presumption is fairly strong in the case of an isolated, independent amendment, but is of little force in the case of amendments adopted in a general revision or codification of the laws, as in such case the change of phraseology may be due to a rearrangement of the statutes or to a desire to improve the style.’ (36 Cyc. 1165.)” (Emphasis supplied.) Research reveals little documented legislative history concerning the statutory amendment except the following advisory committee note: “There has been no major change in the right and none in the procedure pertaining to liens for improvement of real property. In some cases the volume has been reduced for the purpose of clarity such as in this and the next three sections covering GS 60-1401 to GS 60-1404.” 2 Gard’s Kansas C. Civ. Proc. 2d Ann. § 60-1101 (1979). Judge Gard, in his own comments, states: “Subsection (a), which is substantially the whole of this section as originally enacted, is a condensed version of GS 1949, 60-1401, and is intended to accomplish exactly the same result as the much longer former section.” Both parties place some reliance on the following language found in Lumber Co. v. Blanch, 107 Kan. 459, 463, 192 Pac. 742 (1920), a case decided under the “entire tract” language: “It is claimed that lots 16, 18, 20, 22, and 24 are on one side of an alley; that lots 17 and 19 are across the alley from those first named; and that therefore all the property cannot be subjected to the lien. If the entire property was used by the Conners as one property, although the alley ran through it, the lien would properly attach to the whole of the property. If the two tracts were used as separate properties, and the improvements made were all on one of them, the lien would attach only to that property on which the improvements were made. While not directly in point the following authorities support these rules: “(Mulvane v. Lumber Co., 56 Kan. 675, 44 Pac. 613; Lumber Co. v. Smith, 84 Kan. 190, 114 Pac. 372; Lehmer v. Horton, 67 Neb. 574; 27 Cyc. 224-225; 18 R.C.L., 947-952.)” In our mind, Blanch is distinguishable from the case at hand in that the court there spoke in regard to two tracts not immediately contiguous because of separation by an alley, while here there is but one tract of land. It seems inappropriate to us to apply the rule of law set forth in Blanch to the facts of this case as is urged by the defendants, for in the case before us we are not attempting to join several separate tracts. Here, the landowners and those who stand somewhat in their shoes are attempting to separate a major por tion of one tract. See Mulvane v. Lumber Co., 56 Kan. 675, 44 Pac. 613 (1896). We are of the opinion that the legislature did not intend to change the amount of land subject to mechanics’ liens when it amended the mechanic’s lien statute in 1964. As we view the trial court’s findings, the quarter-section was a single unit and had been operated as such until approximately the time the contract for a hog confinement facility was entered into. The quarter-section was contiguous, and the parties do not contend that any portion was separated by roadways or by any other manner at the time of construction to indicate that the hog operation was a separate unit. The fact that the Schlatters rented a portion of the quarter-section to others, and at some point after construction started they rented the remainder of the quarter-section (excluding the hog operation area and the home and farm buildings) to others, does not require a different result. The trial judge erred in limiting the liens to the 9.9-acre tract. The case is remanded to the trial court with directions to enter judgment for Confinement Specialists, Inc., and Hedlund Electric, Inc., allowing their mechanics’ liens to be foreclosed against the whole quarter-section. Reversed and remanded with directions.	[ 117, 124, -36, -20, -118, -32, 58, -103, 91, -84, 117, 87, 111, -38, 4, 41, -27, 121, 101, 104, 119, -78, 35, 83, -46, -13, -95, -59, -72, 79, -28, 23, 76, 4, -118, -43, -26, -86, -57, 88, 14, 5, -102, 105, -47, 80, 52, -21, 84, 79, 53, -113, -77, 44, 21, -50, 72, 46, 107, 45, -63, -7, -69, 12, 95, 7, -95, 68, -104, 67, -6, 42, -112, 49, -127, -24, 115, 54, -106, 116, 67, 27, 8, 38, 99, 18, 77, -49, -20, 24, 14, -2, -119, -89, -112, 72, 19, 34, -66, -99, 120, 6, 6, 118, 110, -123, 95, 109, -123, -25, -44, -93, 7, 80, -107, -121, -29, -115, 49, 113, -49, -94, 92, 86, 83, -101, 14, -103 ]
Prager, J.: This is a controversy which arose in the administration of an estate and which involves the issue of whether a certain certificate of deposit should be included in the inventory of the estate. The district court ruled that the certificate of deposit in question was owned in joint tenancy with right of survivorship rather than by tenancy in common and, accordingly, ordered the certificate of deposit to be excluded from the estate inventory. The decedent is Mabel Carter. On April 17, 1972, Mabel Carter obtained a certificate of deposit in the amount of $15,000 from the Emporia State Bank. The certificate was made payable to the order of “Mabel E. Carter, or Robert M. Carter or Glen P. Carter” upon presentation of the certificate properly endorsed on the maturity date. The appellee, Robert M. Carter, is Mabel’s son and the administrator of Mabel’s estate. The appellants, Robert E. Carter, Phyliss Eilene Wright, and Belinda Faye Willie, and Mrs. Glen Carter, are the children and wife of Glen P. Carter, Mabel’s son, who died on October 26, 1976. Robert M. Carter, as administrator, did not include the certificate of deposit as an asset in the estate of Mabel Carter. He claimed that the certificate of deposit was owned in joint tenancy with the right of survivorship. Since he was the only survivor, he claimed ownership and cashed the certificate and deposited the proceeds in his own account. The appellants filed a motion to compel the administrator to include the certificate in the inventory of the estate. The trial court, over the objection of the appellants, allowed two officers of Emporia State Bank to testify about the intentions and practices of the bank in 1972 concerning the ownership of certificates of deposit. The bank officers were not able to testify as to actual conversations with Mabel Carter at the time the certificate of deposit was created. Neither of the bank officers could state what her actual intentions were at that time. Their testimony was restricted to the usual procedures followed by the bank. They stated that, under those procedures, where a certificate of deposit is issued in the name of one person or another person, that would create a joint tenancy with right of survivorship, unless the qualifying words “tenancy in common” were placed on the certificate. At the time of the trial, their testimony also disclosed that the bank had a special stamp, “As Joint Tenants and not as Tenants in Common”, which is customarily imprinted on certificates of deposit to show that the parties named own the certificate jointly with right of survivorship. On December 18, 1969, a certificate of deposit had previously been issued by the Emporia State Bank payable to “Mrs. Mabel E. Carter or Glenn P. Carter or Robert M. Carter,” and across the face of the certificate were imprinted the magic words, “As Joint Tenants and not as Tenants in Common.” The bank president frankly admitted that, without the stamp on the face of the certificate, he could not really say how the depositor intended the certificate to be owned. No other evidence as to the intentions of Mabel Carter was presented at the trial. The district court ruled that the certificate of deposit issued April 17, 1972, was owned in joint tenancy with right of survivorship and that Robert M. Carter was entitled to the certificate as the surviving joint tenant. The appellants have appealed to this court. The first point raised by the appellants on the appeal is that the trial court erred in permitting the testimony of the two bank officers as to the procedures of the bank and the bank’s intentions in creating the certificate of deposit which was the subject of dispute. The trial court relied upon In re Estate of Wood, 218 Kan. 630, 545 P.2d 307 (1976). In Wood, three certificates of deposit were issued payable to “James B. Wood or Robert Davies” or to either one of them or the survivor or survivors upon presentation and surrender of the certificate properly endorsed. The Supreme Court held that the language on the certificates was ambiguous and not sufficient to establish ownership as a matter of law, and thus, extrinsic evidence was admissible to show the depositor’s intention. In this regard, the Supreme Court stated: “In admitting parol evidence the inquiry should be confined to the facts and circumstances existing prior to and contemporaneously with the execution of the contracts, since it is only the intention of the depositor at the time of the creation of the account that is material. (Simonich, Executrix v. Wilt, 197 Kan. 417, 424, 417 P.2d 139; and In re Estate of Matthews, supra at 503.) “The bank president’s proffered testimony discloses the bank intended to create a joint tenancy. Where a bank official intends to create a joint tenancy account or joint tenancy ownership in certificates of deposit because that is what the depositor wanted or requested, his testimony is relevant and should be admitted. (Edwards v. Ledford, [201 Kan.] at 521; In re Estate of Smith, [199 Kan.] at 92; and Miller v. Higgins, [188 Kan.] at 741.) . . .” pp. 633-34. In Wood> the proffered testimony of the bank official indicated that he had personally explained the legal effect of a joint tenancy to the depositor and that the depositor, an attorney, had acknowledged that Davies, the other person named on the certificates, could cash them. Thus, the testimony was clearly relevant to the depositor’s intentions. In the present case, the two bank officers testified that they did not know the intentions of Mabel Carter at the time the certificate was issued. In several other Kansas cases, parol evidence has been permitted to show the nature of the ownership of certain bank accounts. In Edwards v. Ledford, 201 Kan. 518, 441 P.2d 834 (1968), the testimony of bank officials was admitted to show that there was oral agreement between the bank and the depositor that a joint tenancy account was to be established. The depositor had gone into the bank specifically asking an account be opened whereby any money in the account would belong to his daughter if anything happened to him. The testimony there also showed that the bank officials had explained fully the legal effect of a joint tenancy account to the depositor and then asked the depositor if that was what he wanted. The depositor replied, “Yes, that is the way I want it.” In other cases, where parol evidence was presented to show the depositor’s intent, the testimony concerned statements made by the depositor at the time the account was created. These cases are authority for the proposition that a bank official may testify about bank practices, if those practices reflect what the bank depositor actually wanted, and the witness could testify what the depositor actually wanted. In re Estate of Matthews, 208 Kan. 492, 493 P.2d 555 (1972); In re Estate of Johnson, 202 Kan. 684, 452 P.2d 286 (1969). In the case now before us, the officials of the Emporia State Bank could only testify as to their usual bank practices. They admitted that they could not testify about the specific intentions of Mabel Carter. Under these circumstances, it is highly questionable whether the bank officials’ testimony should have been admitted at all. However, if it is assumed that the testimony of the bank officials was admissible, then we are compelled by the undisputed testimony to conclude that the certificate of deposit in this case was held in a tenancy in common and not in joint tenancy with right of survivorship. The Kansas legislature has seen fit to create a presumption that joint ownership of either real or personal property is held by a tenancy in common rather than by a joint tenancy with right of survivorship. K.S.A. 58-501 provides in part as follows: “58-501. Tenancy in common unless joint tenancy intended, when; exception; joint tenancy provisions. Real or personal property granted or devised to two or more persons including a grant or devise to a husband and wife shall create in them a tenancy in common with respect to such property unless the language used in such grant or devise makes it clear that a joint tenancy was intended to be created; Except, That a grant or devise to executors or trustees, as such, shall create in them a joint tenancy unless the grant or devise expressly declares otherwise.” (Emphasis supplied.) In Edwards, the court points out that joint tenancies as they existed at common law have never been favored in this state. K.S.A. 58-501 and its predecessor abolished joint tenancies and the doctrine of survivorship created by operation of law, but did not forbid joint tenancies and survivorship by negotiation or contract of the parties concerned. We believe that simply using the word “or” between the names of the owners of a certificate of deposit is not sufficient to satisfy the statute. If that were the case, every certificate of deposit or bank account owned by two persons in the alternative would presumptively be owned in joint tenancy with the right of survivorship. This would reverse the statutory presumption and be contrary to the clear intent of K.S.A. 58-501. In the case before us, in order for the certifícate of deposit to be held to be in joint tenancy with right of survivorship, the appellee, Robert M. Carter, had the burden of showing such an intent on the part of Mabel Carter. As noted above, the two bank officers testified that they did not know what the actual intent of Mabel Carter was. Mr. Carter testified that his mother was knowledgeable in business affairs and managed a farm operation after her husband’s death. She did her own banking and generally handled all of her business affairs. He also testified that he thought she knew the significance of a joint tenancy with the right of survivorship because she had created one with respect to certain real estate. He further testified that he did not know what her intent was about the certificate of deposit and, in fact, never talked to her about it. It appears to us that the bank officers relied primarily on K.S.A. 9-1205. That statute is not relevant in the present case. In Wood, the following observation is made: “Previous cases emphasize this statute is for the bank’s protection in paying on ‘joint’ accounts. K.S.A. 9-1205 and its predecessors have nothing to do with the ownership of the funds as between two persons alleged to be joint tenants. [Citations omitted.]” 218 Kan. at 633. On the basis of the rationale set forth above, we have concluded that, since the bank officers could not testify about the actual intentions of the particular depositor, Mabel Carter, their testimony as to the practices of the bank was not relevant. We have further concluded that, even if their testimony about bank practices was admissible, there was still not sufficient evidence presented to make it clear that the depositor intended that the certificate of deposit be held in joint tenancy with right of survivorship. K.S.A. 58-501 requires clear evidence regarding the depositor’s intentions at the time the certificate of deposit or bank account was created. Since no such evidence was presented, the judgment of the district court must be reversed and the case remanded with instructions to direct the administrator to include the certificate of deposit in the inventory of the estate of Mabel Carter. The relative ownership of the certificate of deposit as among the tenants in common is a matter to be determined by the district court on remand. The judgment of the district court is reversed and remanded with directions.	[ -16, 44, -56, 28, 42, -96, 42, -86, 98, -31, 37, 87, 121, 66, 20, 45, 114, 37, 65, 105, -73, -77, 55, 75, -46, -77, -71, -41, 55, 121, -27, -42, 76, 32, 42, -43, 102, -126, -59, 84, -52, 8, 43, -64, -3, -64, 48, -21, 80, 73, 81, -50, -79, 57, -99, 102, 75, 46, 79, -67, -16, -71, -81, 4, -5, 22, -111, 116, -112, 41, -56, 10, -104, 113, 0, -23, -78, -74, -122, 100, 35, 89, 8, 98, 98, 67, 5, -49, -128, 24, 46, -73, 15, -121, -110, 73, 97, 43, -66, -99, 124, -48, 70, -12, -82, 20, 28, 108, 29, -49, -74, -111, 45, -65, -100, 3, -1, 35, 32, 17, -53, -64, 92, 7, 121, -101, -121, -12 ]
Herd, J.: This is an action for specific performance of a contract and for damages. The case was tried on a joint stipulation of facts and is here on an “Agreed Statement.” Northwest Kansas Area Vocational-Technical School (VoTech), as a part of its curriculum, builds a house for sale in Goodland each year with student labor, under the supervision of qualified instructors. In 1978 appellant built a solar heated house. When it was offered for sale by sealed bid, Rudolph Wolf was successful with a bid of $93,000. On February 20,1979, appellant and appellee entered into a written agreement for the sale and purchase of the house. Wolf paid $10,000 down with the balance due March 20, 1979, the closing date. Mr. Wolf moved into the house after signing the contract. Pursuant to the contract Wolf obtained a hazard insurance policy on the structure from Ameri can States Insurance Company. On the weekend of March 3rd and 4th, 1979, water pipes in the solar panels froze and burst due to a malfunctioning valve. As a result 750 to 900 gallons of water escaped, damaging the ceiling, floors and walls of the house. Wolf asked Vo-Tech to repair the damage. When it refused, Wolf refused to make the final payment under the contract. Eventually American States Insurance Company agreed to accept the loss claim under the policy. It completed repairing the house on June 12, 1979. Wolf was paid subsistence under the policy during the time he was dispossessed. Vo-Tech then filed this action. Wolf asked for rescission of the contract. The trial court found the loss was the fault of appellant and its refusal to repair the damage was a material breach of contract entitling appellee to rescission. This appeal followed. To further complicate matters, the court ordered the house sold a second time, on November 7, 1979. Rudolph Wolf bought it again but for $83,000. The new purchase price has been paid and Wolf is in possession. All that remains to specifically perform the contract is payment of $10,000 and interest on $83,000 from March 20, 1979, to November 7, 1979, to Vo-Tech, with a determination of who is obligated to correct the design defect, which cost $500. On the other hand, Wolf claims under rescission he is entitled to a return of downpayment, insurance premium and utility costs. As an initial matter it should be noted the standard for appellate review on an agreed statement of facts gives the appellate court the same authority to examine and weigh the evidence as the trial court. In re Estate of Thompson, 226 Kan. 437, 440, 601 P.2d 1105 (1979). We shall exercise that prerogative in the instant case. Let us now consider the issues. The parties stipulate this is an action on a contract for the purchase and sale of real estate. The property was damaged during the executory period of the contract. The first question presented is, which of the parties bears the risk of loss to property under an executory contract? Both parties correctly point to Hall v. Pioneer Crop Care, Inc., 212 Kan. 554, 558, 512 P.2d 491 (1973), where the court stated: “The law in Kansas is clear that the purchaser of real estate under an unconditional contract for the sale of the property assumes the risk of destruction or deterioration of the property from the date of the execution of the contract of purchase and sale, where the loss is not due to a fault of the seller and where the seller at the time of the loss is not in default and is able to convey a good title.” See also Farrell v. The Federal Land Bank of Wichita, 175 Kan. 786, 790, 267 P.2d 497 (1954); Torluemke v. Abernathy, 174 Kan. 668, 671, 258 P.2d 282 (1953); Bank v. Grisham, 105 Kan. 460, 469, 185 Pac. 54 (1919). However, it should be pointed out the foregoing rule applies to contracts which make no provision for who bears the risk. The contract in this case contains the following provision: “Insurance: It is agreed by and between the parties hereto that Purchaser will maintain hazard insurance in an amount not less than $83,000 with a standard loss payable clause in favor of Seller until closing.” We hold Wolf, the purchaser, agreed to bear the risks, regardless of fault, covered by insurance up to $83,000. All of the loss herein was covered by insurance except the $500 expended by Vo-Tech for flashing. This expense falls under the rule in Hall v. Pioneer Crop Care, Inc., 212 Kan. 554, Syl. ¶ 2. It was made necessary by the fault of Vo-Tech, which must therefore bear the cost. Wolf maintains the breach of contract by Vo-Tech in refusing to make repairs is so material he is entitled to rescission. Appellant’s refusal to make the repairs covered by insurance was proper and does not constitute a breach of contract. However, appellant’s refusal to correct the defect in design, i.e., provide proper water disposal in case of ruptured tubing, constitutes a breach of contract. The real question is whether this type of breach supports rescission. The general principles relating to rescission of contracts are set out in Whiteley v. O’Dell, 219 Kan. 314, 316-19, 548 P.2d 798 (1976): “It is not every breach which gives rise to the right to rescind a contract. In order to warrant rescission of a contract the breach must be material and the failure to perform so substantial as to defeat the object of the parties in making the agreement, (p. 316) “[I]t was within the inherent equitable power of the court to grant relief which would achieve justice and equity, (p. 318) “Rescission operates to extinguish the contract so that for all intents and purposes it never existed. It is generally held that a lawful rescission of a contract prevents recovery of damages for the breach, (p. 318-19) “As a general rule, upon rescission of a contract the parties must be placed in substantially the same condition as when the contract was executed.” (p. 319) Recently the Supreme Court reaffirmed these principles. See Baker v. Tucker, 227 Kan. 86, 89, 605 P.2d 114 (1980). Was appellant’s breach “so substantial as to defeat the object of the parties in making the agreement?” Given the fact it affected only disposal of water for a broken solar tube, we hold it was not a material breach and will not support rescission. In light of the foregoing, judgment is entered for the appellant for specific performance of the contract and judgment is entered for the appellee for the $500 cost of flashing. The judgment of the trial court is reversed in part and affirmed in part consistent with this opinion.	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Spencer, J.: Two actions for damages for injuries caused by mob action were consolidated for trial and resulted in jury verdicts in favor of Portwood for $25,000 and in favor of Davis for $75,000. Defendant has appealed. The events which gave rise to these cases took place in the northeast section of Leavenworth during the late afternoon of June 21, 1976. In Re PORTWOOD Portwood, a journeyman plumber, was working at the latan Power House near Weston, Missouri. At about 4:30 p.m. he left work and began his trip home to Lansing, via the truck route through Leavenworth. He was driving a 1973 Pontiac automobile with the air conditioner operating and the windows closed. Portwood testified that, while traveling on 3rd Street near the intersection of 3rd and Kiowa, he observed a large group of people on the southeast and northwest corners of the intersection. When asked what he meant by a large group, he estimated the size of each group at 15-20 individuals. He stated these groups were “[m]illing around on the corner; partly in the street; partly on the sidewalk.” As Portwood entered the intersection, a brick was thrown through the left side window of his car and struck him in the head near his left eye. He did not see the individual who threw the brick but indicated it was thrown from among the group milling about the southeast corner of the intersection. After being struck, Portwood drove his vehicle approximately three blocks, where he stopped to wipe the blood from his eye. He testified he stopped again later for the same purpose before reaching his home, after which he was taken to St. John’s Hospital. At the hospital, Portwood was x-rayed and received stitches to the wound to his head. The following day Portwood was transported to the University of Kansas Medical Center where, after two days of observation and testing, he underwent surgery to reconstruct his fractured left cheekbone, together with a fracture in the orbital rim. He also testified he was informed an operation had been performed on his eyelid to enable him to open his eye. The surgery consisted of realigning and repositioning the portions of fractured bone. His doctor testified Portwood was well on his way to a full recovery when he was last examined in August of 1976. Portwood testified he was off work for a period of 5-6 weeks and, upon returning to his job at the power plant, learned he had been laid off due to a reduction in the work force. In Re DAVIS At about 5:00 p.m. that afternoon, Davis, employed as a truck driver hauling asphalt, drove his truck along the truck route through northeast Leavenworth. He turned his truck onto 3rd Street headed south and testified he observed a small yellow car swerving around with people hanging onto the car and glass flying. He estimated there were 25-30 people on both sides of 3rd Street. Davis decided to pass the car and, as he did so, a man threw a brick into the windshield of his truck. At almost the same time, bricks were thrown through both sides of his truck and he was struck and rendered unconscious. Davis regained consciousness at the University of Kansas Medical Center in Kansas City, where he was a patient for about ten days after surgery to have a plastic plate implanted in his skull. Davis’ physician at the Medical Center testified that Davis sustained injuries to both the left and right sides of his head. Specifically, Davis sustained a depressed comminuted fracture in the right occipital (back) area, and a small hematoma (blood clot) developed in association with the fracture. The physician testified the covering of Davis’ brain was lacerated and that a blood vessel on the surface of the brain was bleeding. In order to correct the depressed skull fracture on the right side of Davis’ head, a piece of bone approximately four centimeters in diameter was removed, the brain covering was repositioned, and the missing piece of skull was replaced by pouring quick-setting plastic to form a plastic plate. Davis also sustained a laceration of the left zygoma, that portion of the head where the skull and face meet. Between the time Davis left the hospital until the date of the physician’s deposition, Davis returned five times. He complained of headaches, occasional double vision, and difficulty with vision. The physician stated that although Davis suffered initial loss of peripheral vision, that condition had declined and, in fact, had all but disappeared. Davis’ physician was questioned concerning the possibility of Davis developing epilepsy as a result of his head injuries. He stated if someone such as Davis does not develop epilepsy within two years after the injury, the odds of subsequently doing so are quite small, though still possible. The physician stated in his opinion it would be fair to say Davis had made a complete recovery from his head injury. As to whether or not Davis continued to suffer from headaches and whether Davis’ eyes were functioning properly, he stated headaches are a completely subjective symptom, and that, while it appeared Davis’ eyes were functioning normally, only an ophthalmologist could conclusively determine the same. Davis testified six months elapsed before he was able to return to work; his nerves were not as good; his balance was affected; he was easily upset; his vision was not as good, sometimes suffering from double vision; and that loud noises caused him to have headaches. GENERAL In addition to plaintiffs, numerous individuals were similarly attacked on the afternoon in question while traveling on 3rd Street near the intersections of Dakota and Kiowa. The impetus for the disturbance apparently was a shooting death in a northeast Leavenworth bar in the early morning hours of June 21, 1976. It appears friends of the victim were enraged by the fact the suspect was charged only with second-degree murder. Initially it is argued it was error to deny defendant’s motion for a directed verdict. In this connection, defendant contends there is nothing in the record to show a group of ten or more persons intent on unlawful violence, and suggests there was an attempt to merge many separate isolated incidents occurring over a period of more than 24 hours to convey an image of such mob activity, all of which incidents involved but two or three individuals. De fendant’s position is that the evidence failed to show there was a mob or that plaintiffs’ injuries were caused by mob action. In Traylor v. Wachter, 227 Kan. 221, 228, 607 P.2d 1094 (1980), it is stated: “In reviewing a motion for a directed verdict and/or a motion for judgment notwithstanding the verdict, the court must consider the evidence in a light most favorable to the opposing party. [Citation omitted.] The court does not weigh evidence but must accept as true all the facts which the evidence tends to prove and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion and if the evidence is of such character that reasonable men in an impartial exercise of their judgment may reach different conclusions, the case should be submitted to the jury. [Citations omitted.] The appellate court must do the same.” K.S.A. 12-203 (since repealed) provided in pertinent part: “A city shall be liable in damages for injuries to persons or property caused by the action of a mob within the corporate limits of the city if the city police or other proper authorities of the city have not exercised reasonable care or diligence in the prevention or suppression of such a mob.” K.S.A. 12-204 (since repealed) provided the definition of a “mob”: “As used in this act, the word ‘mob’ shall mean an assemblage of ten (10) or more persons intent on unlawful violence either to persons or property.” In support of its position, defendant cites Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, Syl. ¶ 4, 536 P.2d 54 (1975), where it was said: “While not every member of a mob must personally participate in causing any particular damage or injury, before it may be said that such damage or injury is ‘caused by the action of a mob’ there must be some sort of mob participation. At the very least the immediate influence of the mob must be exerted on those members who do physically cause the damage or injury.” It is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. Its only concern is with evidence which tends to support findings and not with evidence which might have supported contrary findings. Addis v. Bernardin, Inc., 226 Kan. 241, Syl. ¶ 2, 597 P.2d 250 (1979). If the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict, an appellate court should not intervene. Timsah v. General Motors Corp., 225 Kan. 305, Syl. ¶ 1, 591 P.2d 154 (1979). See also Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, Syl. ¶ 2, 581 P.2d 372 (1978). Some 28 witnesses testified on behalf of plaintiffs. To review their testimony would unnecessarily enlarge this opinion. Suffice it to say we have examined the record and find ample evidence from which the jury might properly have determined there was an assemblage of ten or more persons, intent on unlawful violence, which resulted in plaintiffs’ injuries. It is also argued there was no basis in the evidence for the jury to conclude the City had not exercised reasonable care or diligence in the prevention or suppression of such mob, if one did exist. Clearly, the evidence amply supported the finding that the police were aware of the activities on 3rd Street, yet failed to act to disperse the crowd or to seal off the area to passing motorists. The judge’s offhand comment, made at argument on defendant’s motion for new trial, to the effect that he was not sure what more the police could have done, is irrelevant to the jury’s obvious determination that more could have been done. Negligence, contributory negligence, and proximate cause are all issues to be determined by the jury. It is only when it can be said that reasonable men could reach but one conclusion from the same evidence that any of them may be decided as a question of law. Popejoy Construction Co. v. Crist, 214 Kan. 704, Syl. ¶ 1, 522 P.2d 180 (1974). The evidence presented in this case does not compel the conclusion the police acted reasonably in protecting the lives and property of motorists who traveled the truck route on the afternoon of June 21, 1976. Plaintiffs’ exhibits 2-20 (police incident reports), both inclusive, were offered and admitted into evidence over defendant’s objections. Exhibit 2 is a copy of the police report of the shooting incident which presumably precipitated the unrest about which all of the remainder of the reports were made. Exhibits 3-20, which reflect reports made to the Leavenworth police by as many persons including plaintiffs, contain narrative statements of events which occurred on June 21. They also contain conclusory words such as “[r]iot,” “[r]iot situation,” “[t]o brink of riot,” and “[d]riving through the riot torn area.” Defendant contends the reports contained hearsay and conclusions either of the declarants or the recording officers, and that the admission of such reports into evidence was an invasion of the province of the jury. On the other hand, plaintiffs contend that, because of the nature of this action, the police reports were relevant to show the city police were fully aware of what was going on that day; and if there was hearsay material contained within the reports, said reports were nevertheless admissible under various exceptions to K.S.A. 60-460. Bearing in mind the nature of this cause and that it was necessary to show awareness of the disturbance by the city police in order to establish lack of reasonable care or diligence in the prevention or suppression of the disturbance, we conclude that the exhibits in question were relevant and properly admissible. See Smith v. Estate of Hall, 215 Kan. 262, 524 P.2d 684 (1974). Defendant complains of an alleged prejudicial remark made by the trial judge during direct examination of its expert witness Maynard Brazeal. Brazeal was asked how he would have responded to the situation in northeast Leavenworth and his response was to the effect the police had done all that was possible under the circumstances. An objection was entered by plaintiffs’ counsel and the judge remarked: “No, his answer can stand. He’s telling you what’s wrong with the setup, if you’ll just listen.” As stated in Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 10, 535 P.2d 865 (1975): “[N]o comment or remark should be made by a judge, during the trial of an action, which may tend to excite prejudice or hostility in the minds of the jurors toward one of the party-litigants, or sympathy for the other, but a mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment, and, where a construction can properly and reasonably be given to a remark which will render it unobjectionable, it will not be regarded as prejudicial.” Emphasis added. The jury was instructed that it was not to consider or draw inferences from rulings of the court upon evidentiary objections, and that verdicts were to be based entirely upon the evidence adduced at trial and the law as set forth in the instructions. We find no error. Defendant argues the damages awarded were excessive and the trial judge was shocked at the verdict. The comments of the trial judge: “I think that the jury did a pretty good job on Mr. Portwood,” and, “But I don’t think that the verdict for Mr. Davis is excessive to the extent that the Court is shocked about it,” would seem to be contrary to defendant’s assertion on this point. In Thurman v. Cundiff, 2 Kan. App. 2d 406, Syl. ¶ 12, 580 P.2d 893 (1978), this court stated: “A court is powerless to reduce the verdict of the jury in an action for unliquidated damages and render judgment for a less amount unless the party in whose favor the verdict was rendered consents to the reduction. The proper course if a remittitur is refused is to set aside the verdict and grant a new trial.” In Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, Syl. ¶ 1, 522 P.2d 176 (1974), it was held: “Where the charge of excessive verdict is based on the passion or prejudice of the jury and depends for support solely on the size of the verdict, the trial court will not be reversed for refusing a new trial, nor will a remittitur be ordered, unless the amount of the verdict in the light of the evidence shocks the conscience of the appellate court.” The verdicts entered do not shock the conscience of this court. We have considered the remaining points on appeal and find them to be without merit. Affirmed.	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The opinion of the court was delivered by Valentine, J.: This was an action brought by John Stevens against Lawrence Gannon for the sum of $250 as damages for the killing of a certain horse. The main question tried in the court below, if not the only contested question, was whether Gannon did in fact kill said horse. All other questions in that court grew out of the trial of that question. In this court the plaintiff in error (defendant below) has raised many questions founded upon supposed irregularities claimed to have occurred during the trial of the case in the court below. We do not think’ that it will be necessary for us to discuss all of the questions separately, for many of them may be discussed in gi’oups, and some of them need not be discussed at all. In general terms, therefore, and without going into details, we would say that we think the court below erroneously permitted some irrelevant testimony to be introduced on the trial, and also erroneously permitted several leading questions to be put by the plaintiff below to his own witnesses. But still we think that none of these errors were of such a substantial character as to require a reversal of the judgment of the court below. Errors like these are often committed in the trial of causes in nisi prius courts, and yet it is seldom that any such errors are complained of in this court, and seldom that a judgment could be reversed on account of them. This case, as said before, was for killing a horse. No person except those who participated in the act saw the horse killed; and hence the plaintiff had in the nature of things to resort to circumstantial evidence to prove his case; and in such cases great latitude must always be allowed in the introduction of testimony. And therefore much of the evidence which the plaintiff in error supposes to be irrelevant testimony, and much that would under other circumstances be in fact irrelevant testimony, was, under the circumstances of this case, both relevant and competent. For instance, it was both relevant and competent for the plaintiff to show that the defendant had some motive as well as an opportunity to kill the horse by showing that the horse was in the habit of trespassing, and did, immediately before he was killed, trespass upon the defendant’s corn crop. But even if said evidence was both irrelevant and incompetent, it is still strange that the plaintiff in error should now ask us, as he does, to reverse the judgment of the court below on account of the following question and answer, to-wit: “Question: State what you know about stock trespassing on that corn at the time?” “Answer: I don’t know. I never saw any stock in his crops.” The witness did not at any time state that he knew anything about the matter, and yet the plaintiff in error asks us to reverse the judgment on account of his testimony. With regard to leading questions we would say, that many of the questions put to witnesses which the plaintiff in error supposes were leading, were not leading. It is not every question that is put in a direct or leading form, or that may be answered by “yes,” or “no,” or by a simple affirmative or negative, that is leading. To ask an impeaching witness directly if he knows the general character of the witness to be impeached for truth and veracity, is not leading. And generally a direct question upon any preliminary matter, merely introductory to something else, and not calling for an answer which will tend to prove or disprove any issue in the case, is not leading. For instance, after it had been shown that Mrs. Patrick Gannon had previously testified in chief and on cross-examination, on a former trial of this same case, and that she had since died, the following question was asked, to-wit: “ Do you recollect her testimony in chief on the trial of that case?” Answer: “Yes.” This question was not leading. It did not call for any testimony which tended to prove or disprove any of the issues in the case, but simply called for the recollection of the witness, a purely preliminary matter, introductory of what was to follow. But even where nisi prius courts allow leading questions to be asked, still as such courts have such a wide discretion in allowing or disallowing such questions, appellate courts can seldom reverse their de cisions for allowing such questions to be asked. It can only be done where the nisi prius courts have manifestly abused their discretion. The plaintiff below, Stevens, introduced as a witness Patrick Gannon, a nephew of the defendant below. The witness testified at one time he saw the defendant leading a mare which he thought was the defendant’s own mare. He also said in his testimony, “I do not recollect that he had any ax.” The plaintiff then asked the witness the following question: “Do you recollect of testifying at Erie that your uncle had an ax on his shoulder when he was leading the horse?” Answer: “ I do not recollect.” This question was allowed to be asked and answered, over the objections and exceptions of the defendant. Of course, the court erred in allowing this question to be asked and answered. The witness was the witness of the plaintiff; and the plaintiff did not even claim that he was surprised, or that the witness testified differently from what he had expected, or that the witness did not testify to the truth, or that the witness had the slightest prejudices in the case.. The question is objectionable for at least three reasons: first, it is leading; second, it is an attempt to prove the declarations of a person not a party to the record, nor interested therein, nor in privity with any person interested therein; third, it is an attempt to lay the foundation for an impeachment of the plaintiff’s own witness without any reason being given therefor. But still we do not think that the defendant’s rights were materially prejudiced by the error of the court. The witness himself stated nothing in response to this question in contradiction or corroboration of what he had already stated. His answer really amounted to nothing. And there was no attempt to prove by any other witness what this witness had ever said at any other time or place. The plaintiff introduced evidence over the objections of the defendant to show what Mrs. Patrick Gannon had previously testified to on a former trial of this same case. The defendant claims that the evidence was erroneously admitted for the following reasons: first, that it was not sufficiently shown that Mrs. Gannon had died since the former trial; second, that it was not sufficiently shown that a legal oath had been administered to her before her testimony was given; third, that the witnesses proving her testimony were not sufficiently qualified therefor — that is, that they were not able to give her exact words, but could give only the substance of her testimony; fourth, that it was shown that Mrs. Gannon refused to answer several questions on the former trial. None of these-reasons are sufficient. The first, second and fourth are in fact superimposed upon very slender foundations. They are in fact not true. Nor were such reasons specifically urged in the court below. If such reasons had there been urged in the trial court, further evidence probably could have been supplied and probably would have been supplied. Changing the order of the first two reasons, and taking up the second one first, we would say that it was amply proved by different witnesses that Mrs. Gannon “testified” as a “witness” -at the former trial of this case; that she was examined in chief and cross-examined, and that her “testimony” was received by the court. Now to “testify” under such circumstances certainly means, to be examined as a witness under oath of affirmation. (See Burrill, Bouvier, Webster, and Worcester’s Dictionaries, “Testify.”) Returning now to the first reason urged against the introduction of said testimony: before any evidence was introduced to show what Mrs. Gannon had formerly testified to, it was shoAvn that the plaintiff and Mrs. Gannon lived in the same neighborhood, and then the plaintiff testified as follows: “I knew the wife of Pat. Gannon; she testified before ’Squire Williams in this case; she is dead; I did not see her die, or see her after she was déad. I saw people going there to the funeral of old Pat. Gannon’s wife; I have not seen her since.” This evidence was not objected to. After it was shown what Mrs. Gannon had testified to on the former trial,, the defendant, who was also a neighbor of the plaintiff and of Mrs. Gannon, and a brother-in-law of Mrs. Gannon’s, became a witness, and testified as follows: “I knew Mrs. Patrick Gannon, deceased, in her lifetime. I remember the trial of this case before Esquire Williams, in Erie township. At that time Mrs. Gannon and I were on very unfriendly terms. I was present a little after she died. She sent for me before she died.” We think it is evident beyond all doubt that Mrs. Gannon was dead at the time of the last trial of this case in the district court, and whether her death was sufficiently shown before the evidence of what she had formerly testified to was introduced, we think is now wholly immaterial; but still we are inclined to think that for the purposes of this case her death was sufficiently shown before any evidence of what she had formerly testified to was introduced. As to the third reason given why said evidence should have been excluded we would say, that we think it was sufficient to prove the substance of what Mrs. Gannon testified to on the former trial, and not necessary to prove her exact words: 1 Greenl. Ev., §§165, 166; 1 Phillips’’ Ev., (5 Am. Ed., with Cow. & Hill’s and Edward Notes,) marginal page 395, et seq., note 115. This we think is the law,.both upon reason and authority. The reasons for this being the law we think are so obvious that it is not necessary to state them. There was not a particle of evidence tending to prove that Mrs. Gannon refused to answer any question put to her on the former trial; and the claim that there was any such refusal is now made for the first time in this court. The evidence upon which we suppose this claim is made is the last portion of the evidence of the last witness that testified with regard to Mrs. Gannon’s testimony, and is as follows: “I think there were several questions asked the witness on that trial that she did not answer.” If this can be construed into a refusal to testify, or a refusal to answer question's, why was not the point made in the court below? Why did not the defendant move to strike out all the evidence concerning Mrs. Gannon’s testimony? Or Avhy did he not ask the court below to instruct the jury to disregard it? He is too late now to raise any question concerning it. Prom anything that appears in the record the questions which Mrs. Gannon did not answer may have been withdrawn by the party ask ing them, or the court may not have permitted them to be answered. The court below did not refuse to allow the defendant to disprove Mrs. Gannon’s testimony. The cross-examination of the defendant was a proper cross-examination. And indeed the defendant' had a very fair trial in every respect. The application of the maxim, falsus in uno, falsus in omnibus, was a proper application of that maxim according to the decisions of this court. (Campbell v. The State, 3 Kas., 488; The State v. Horne, 9 Kas., 131.) In the judgment of the writer of this opinion, however, it is unfortunate that such decisions were ever made, and he thinks' they should be overruled: Mead v. McGraw, 19 Ohio St., 55, and cases there cited; Paulette v. Brown, 40 Mo., 52, 57, et seq.; Blanchard v. Pratt, 37 Ill., 243, 246; Callahan v. Shaw, 24 Iowa, 441, 447. I shall certainly never be in favor of reversing a judgment of the district court for refusing to give such an instruction as the 2d one given in this case. The instruction referred to is as follows: “ If in your examination of the testimony in this case you should be satisfied that any witness has testified falsely and corruptly in reference to any material fact, you should disregard the whole of the testimony of such witness.” The following instruction was not erroneous, to-wit: “In cases of this nature all persons who aid, abet, or assist in the commission of the tortious act, are regarded as principal actors, and are severally as well as jointly responsible to the injured party for damages sustained by such tortious act.” The ' 4th instruction was not erroneous, or at most it was not so erroneous as to require a reversal of the judgment. That Mrs. Gannon was dead, there can be no doubt. The evidence sufficiently showed it, and there was no conflict of evidence upon this point. Her evidence was properly presented to the jury for their consideration, and the court properly instructed the jury to consider it with due caution. They were not told to believe it or disbelieve it, nor to believe or disbelieve any portion of it; nor were they told to believe or disbelieve any portion of the evidence of the witnesses who testified with regard to it, exeept possibly they were told inferentially that Mrs. Gannon was dead, and this the defendant himself admitted and testified to as a witness on the trial of the case. We have already given this case more time and consideration than it merits, and shall therefore consider it no further. 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 Brewer, J.: On the 15th of February, 1871, a county-seat election was held in Labette county. No place received a majority of all the votes, and on February 28th, 1871, a second election was held to decide between the two places having the highest number of votes. At such election the returns showed a majority in favor of Labette City. On the 3d of March, 1871, the judge of the district court issued a restraining order against the commissioners of said county, restraining them from canvassing the votes, proclaiming the result, or removing the county offices to Labette City. The petition therefor alleged fraudulent voting in favor of Labette City at both elections. Such restraining order yet remains undisturbed and in full force. In April, 1873, certain electors of Labette City presented to the district court of said county a petition for a writ of mandamus to compel the different county officers to remove their offices to Labette City. Such petition simply alleged the two elections, the result of the votes, and the failure of the commissioners to canvass and declare the result. The district court refused the writ, and now plaintiffs in error seek a reversal of that order. Several questions are discussed by counsel in their briefs. We rest our affirmance of the ruling below upon one point. The writ of mandamus, originally a prerogative writ, and solely within the discretion of the court, still so far partakes of its original nature that the court may exercise a considerable degree of discretion in granting or refusing it. (The State, ex rel. Wells, v. Marston, 6 Kas., 537.) Can we say that the district court abused its discretion in refusing this writ? Immediately after a county-seat election an injunction is issued restraining any canvass of the votes, and any removal of the county offices, on account of the fraudulent manner of the election, and the fraudulent voting in favor of the apparently successful place. Eor more than two years the whole community seems content with that decision. Even the citizens of the place apparently successful claim no rights by virtue of such election. This seems very strange, considering the eagerness with which ordinarily a county-seat is sought, and the vehemence of the efforts made to secure or retain it. The records of this court abundantly show how important this question is considered. Such remarkable indifference argues either a consciousness of the truth of the charges, or a conviction that the changes of population, or of the facilities of travel, render it for the best interests of the county, as a whole, that the county-seat remain where it is. We do not mean to assert that this lapse of time has operated like a statute of limitations, and absolutely cut off all rights; nor that a similar lapse of time in an older and more permanently settled community ought to have the same influence upon the discretion of a court. It must be remembered that this county has been but lately opened to settlement, and that population has recently and rapidly been flowing into it. Less than two years may have materially altered the centers of population and wealth, as well as the means and facilities of communication, and it may well be that the community generally prefer that the county-seat remain undisturbed. At any rate, when the local court, familiar with the condition of the county, refuses a writ of mandamus to remove the county offices, and nothing but the naked facts of the election appear in the application therefor, without explanation of the delay, and the restraining order appears undisturbed, we cannot hold that there was an abuse of discretion in refusing the writ. All the Justices concurring.	[ -12, -12, -16, -36, 10, -64, 34, 56, 80, -95, 37, 115, -23, -102, -111, 33, -78, 47, 53, 123, -60, -74, 23, -61, 118, -45, -37, -35, -73, -23, -12, -27, 8, 48, 26, -43, 71, -60, -59, -36, -58, 6, -119, -50, -64, -102, 48, 115, 22, -49, 117, -82, -13, 46, 24, 99, -23, 44, -37, 53, 17, -5, -66, 5, 109, 6, -79, 6, -104, -121, -8, 58, -112, 57, -122, -8, 51, -90, -122, 84, 13, -103, 44, 102, 102, 67, -87, -49, -88, -119, 14, -33, 29, -26, 22, 89, -86, 11, -74, -103, 117, 82, 7, -2, 103, 5, 17, 124, 13, -52, -44, -77, 15, 126, -106, 5, -21, -95, 20, 113, -51, -108, 92, 99, 51, 27, -50, -70 ]
The opinion of the court was delivered by Valentine, J.: This was an action on a note and mortgage brought by the defendant in error as plaintiff below against the plaintiffs in error. Judgment was rendered in favor of the plaintiff below. The plaintiffs in error say in their brief, that “The district court erred in refusing leave to the defendants below to amend their answer by verifying the second paragraph thereof denying the indorsement of the note.” Said paragraph does not deny said indorsements. It simply denies that the indorsements were' made “for value received,” as stated in the petition, and then admits the indorsements in the following language, to-wit: “ But the said alleged indorsements and assignments were made by the said John Augustus Lewis and W. B. Hafer without consideration, and .only for the purpose and with the intent to prevent the defendants from setting up and maintaining their defense to any action that might be brought on said note or mortgage, or either of them, as the plaintiff’ at the time well knew.” John Augustus Lewis was the payee of the note, and the mortgagee. He indorsed the note and assigned the mortgage to W. B. Háfer; and "W. B. Hafer indorsed the note and assigned the mortgage to D. V. Sprague, the plaintiff below, defendant in error. The defendants set up the defenses that the plaintiff below was not the real party in interest, and that the note was given in part for usurious interest. Upon the trial the defendants attempted to prove these defenses; but it was not only shown by the evidence that Lewis and Hafer indorsed said note as alleged in the plaintiff’s petition, but that each did it for a full and sufficient consideration; that Hafer and Sprague were bona fide purchasers of the note without any knowledge on their part that it was tainted with usury, and that Hafer purchased the note of Lewis before the same became due. But even if the defendants had in said paragraph denied said indorsements, still the district court would not have erred in overruling the application of the defendants below for leave to amend their answer. It seems to. be admitted • that the answer was filed within the time prescribed by law. But said application to amend the answer by verifying said paragraph was not made until long after the proper time for filing the answer had elapsed. And indeed it was not then made until the case was called peremptorily for trial upon the issues made by the petition, answer and reply. And when it was made it was not founded upon any showing of diligence or merits. There was no attempt made to show why the defendants did not verify their answer when they could have done so without leave of the cqurt, or why they did not make their application for amendment sooner, or why they did not give to the plaintiff notice that they would make such an application. We suppose that it is well known that defendants have no absolute right to amend their answers whenever they may choose to do so. We suppose that it is well known that they can amend only upon leave of the court, and upon such terms as may be just, and that the court may refuse to allow any amendment of a pleading unless it is first shown by proper evidence that it would work injustice to do so. II. The defendants Cooper and C. C. Foote executed said note as though they were both principals, and neither of them as a surety for the other! But the pleadings show that Cooper was in" fact only a surety for C. C. Foote. And the plaintiff in the prayer of his petition asks for judgment against Cooper only as a surety. No issue however was ever made on this subject. Cooper never asked the court to render judgment against himself only as a surety. Indeed, it does not seem that the attention of the court was ever called to the fact that Cooper was only a surety. And hence the court rendered judgment against Cooper as well as against Foote as though they were both principals. In this we do not think the court erred. The court was not bound to render the judgment against Cooper merely as a surety unless Cooper himself first asked that it should be done. III. The plaintiffs in error also complain that the court below rendered a personal judgment against the defendant C. C. Foote, although it is claimed that the petition below does not ask for such a judgment. # t ° ° Now, if the petition does not ask for such a judgment we think it comes very near doing so. It asks that the mortgage shall be foreclosed, that the mortgaged property shall be sold to pay the debt evidenced by the note, and to pay the costs, attorney fees, etc., and that execution shall be issued for the balance. And besides, this is the kind of judgment that the law requires shall be rendered in such cases as this. (Laws of 1870, p. 175, §13.) We think the court did not commit any substantial error in this respect. Where the prayer of the petition is no more defective than the one in this case we-think it may be amended at any time, without costs, so as to make it formal; and upon petition in error we will consider it as so amended. IV. The petition recites the conditions of the mortgage, which show that the mortgagors agreed to pay not only the principal of the debt secured by the mortgage, and interest thereon, but also in case of foreclosure of the mortgage, costs, “and fifty dollars as liquidated damages for the foreclosure.” The petition then prays for a judgment that the mortgaged property be “ordered to be sold and the proceeds applied to the payment of said debt, costs, attorney fees, etc.” The court rendered a judgment for fifty dollars as attorney fees for the foreclosure of the mortgage in addition to the debt, interest and costs. This the plaintiffs in error claim was erroneous. Upon this question we are inclined to think the plaintiffs in error are correct. The case seems to fall within the decision made in the case of Kurtz v. Sponable, 6 Kas., 395. The .stipulation in the mortgage in this case, as it was in that, is for a certain sum to be paid by the debtor as liquidated damages over and above the debt and interest and all legitimate costs. Now what was the term “liquidated damages,” in this mortgage, designed to cover? If it was designed to cover attorney fees, why did not the parties say so in the mortgage? If it was designed to cover any legitimate charge or expense, why did they not say so? Why did not the parties state precisely and definitely just what it was designed to cover — just what the damages were intended to be for, so that the courts could see whether the damages were such as could be allowed by law or not ? If the damages were for usurious interest, then of course they could not be allowed. And would it be proper to allow an issue to be framed and a trial had to determine whether these “liquidated damages” were intended to cover some legitimate charge or expense, or to cover usurious interest ? The two cases of Kurtz v. Sponable, supra, and Tholen v. Duffy, 7 Kas., 405, show nearly what the opinion of the court is upon this question. If the stipulation in the mortgage is for the payment of something which the court can see is legal, and a valid and legitimate charge or expense, then the court will uphold the same; but if the stipulation is so indefinite that the court cannot tell whether the payment was intended to be for something legal or illegal, then the court will not uphold the stipulation. We think the stipulation is void, and therefore the mortgage is the same as though there were no such stipulation contained in it; and therefore the judgment for fifty dollars as attorney fees is erroneous. (Stover v. Jobnnycake, 9 Kas., 367.) This, disposes of all the points made in the case. The cause will be remanded with the order that the judgment of the court below be modified so as to correspond with this opinion. And although we do not think that the court below erred in rendering judgment against said Cooper as principal instead of as surety, yet if the said Cooper so desires it the judgment may still be further modified so that the judgment may be against him as a surety only. All the Justices concurring.	[ 114, 126, -15, -65, -38, 32, 40, -104, -63, 33, 103, 115, 105, -61, 20, 61, -10, 41, 80, 90, 68, -78, 7, 99, -14, -13, -47, -43, -79, 111, -12, -36, 77, 50, -62, -43, 102, -118, -59, -42, -50, 7, 8, -52, -47, 64, 48, 27, 82, 73, 113, -51, -13, 37, 29, 91, 105, 46, 107, 121, -80, -8, -98, -123, 93, 6, -79, 55, -108, 65, -54, 14, -112, 53, 3, -23, 122, -90, -122, 118, 11, -69, 13, -30, 102, 32, 97, 111, -68, -100, 38, -34, 13, -90, -110, 88, 42, 1, -65, -99, 124, 16, -89, 118, -1, 31, 25, 108, 15, -113, -42, -109, -65, 118, -102, -125, -25, -125, 48, 112, -59, 56, 93, 102, 56, -69, -114, -78 ]
The opinion of the court was delivered by Brewer, J.: The appellant was convicted in the district court of Atchison county of the crime of murder in the second degree, and sentenced to the penitentiary for ten years. From this he has appealed to this court, and alleges numerous errors in the proceedings of that court. And first, he complains that that court erred in overruling a motion to quash the information. We do not think the objections made to the information are well founded, and hence see no error in the rulings on the motion to quash. Again, he insists that the court erred in allowing the state . _ a _ _ ° _ ¶ to introduce evidence of the character of the deceased as a quiet and peaceable man. It appears that the deceased was killed in an affray — that this was the second quarrel upon the same afternoon between the deceased and defendant, others participating. The first quarrel took place shortly after the parties left Atchison to go to their respective homes, each in his own wagon, and with two companions. No serious injury was done to either of the parties at this time. At its close the deceased drove ahead with his wagon, and the parties lost sight of each other. After driving some miles the deceased stopped beside a field where one of his sons was at work, and while there the other wagon with the defendant came along, the quarrel was resumed, and in it the deceased was struck on the head and elsewhere with a piece of a rail or club and so injured that he died shortly thereafter. On the trial and before closing their case the prosecution was permitted over objection to ask witnesses who had testified that they knew the deceased, this question: “State if you knew his general reputation for being a peaceable, quiet and law-abiding citizen.” And the witnesses testified that he was a peaceable, quiet and law-abiding man. No attack was made by defendant at any time during the trial on the character of the deceased, and no attempt to show that he was a quarrelsome or turbulent man. The question then is fairly presented, whether the prosecution on a trial for murder may, in the first instance, and as a part of their case, show the character and reputation of the deceased. We do not understand counsel for the state as claiming that such testimony is admissible in all cases, but only in cases where there is a doubt as to whether the killing was done in self-defense, and where such testimony may serve to explain the conduct of the deceased and is therefore fairly a part of the res gestee. In such cases it is said that the authorities hold that the defendant may show the bad character and reputation of the deceased as a turbulent, quarrelsome man. See among other authorities, Franklin v. The State, 29 Ala., 14; The State v. Keene, 50 Mo., 357; Wise v. The State, 2 Kas., 429; The People v. Murray, 10 Cal., 309. And if the defendant may show that the deceased was a known quarrelsome, dangerous man, why may not the state show that he was a known peaceable, quiet citizen? The argument is not good. The books are full of parallel cases. The accused may in some cases show his own good character. The state can never in the first instance show his bad character. A party can never offer evidence to support a witness’ credibility until it is attacked. The reasons for these rules are obvious. Such testimony tends to distract the minds of the jury from the principal question, and should only be admitted when absolutely essential to the discovery of the truth. Again, the law presumes that a witness is honest, that a defendant has a good character, and that a party killed was a quiet and peaceable citizen, except so far as the contrary appears from the testimony in the case; and this presumption renders it unnecessary to offer any evidence in support thereof. No authorities have been cited sustaining the admission of such testimony, and the following are in point against it: Bew v. The State, 37 Ala., 103; Chase v. The State, 46 Miss., 707; Pound v. The State, 43 Georgia, 128. For the same reasons the court erred in permitting the state to offer evidence of the character and reputation of Polk Keeley, a son of the deceased, who took part in the last affray. Another error complained of is, in admitting hearsay testimony. The facts are these: The places of the two affrays were about four miles apart. The time between them about an hour. After the deceased had reached the place of the second affray, Mike Brannon and John Keeley, who had been in the wagon with him, got out and went over into an adjoining field where Polk Keeley was at work. When Polk Keeley was on the stand he was asked what Mike Brannon and John Keeley or either of them told him at that time. This question was objected to, but the court overruled the objection. The witness then testified that Mike Brannon told him “ that the Potter boys had thrown a rock at father, and hit my brother John Keeley,” and “that George Potter claimed that my father had run into Mr. Doyle’s wagon, but that he did not.” He also testified that his father called to him to come, and said that the Potter boys were going to-kill him. At these times the Potter boys were not in sight or hearing. This testimony was admitted as a part of the res gestee. In this we think the court erred. The interval between the two affrays was so great, the separation between the parties so complete, that we cannot consider the one a mere continuation of the other to such an extent as to make all the statements and conversations of the deceased and his companions in the interval, and in the absence of the defendant, a part of the res gestee. It seems to us that such testimony was plainly hearsay, and ought not to have been admitted. It seems probable, too, that part of it at least might have prejudiced the case against the defendant. Appellant also complains that the court erred in giving and refusing instructions. Counsel in their brief call attention to quite a number, and in many instances have pointed out wherein as they think consists the error. We have examined with care the instructions, and considered them with reference to so much of the testimony as is before us in the record, and are constrained to say that so little of the testimony is in the record that it seems wiser not to attempt any extended discussion of the separate instructions. The theory of the defense, as we gather it, was, that the killing was in self-defense: and it seems to us that the court in - , . . , . . _ the special instructions given at the instance oi the defendant laid down the law applicable to this defense fully and correctly. Objection is made to instruction No. 15 given at the instance of the state, on the ground that it implies that the deceased must actually have had a deadly weapon, and actually been in a position and condition to inflict great bodily harm, etc. The actual possession of a deadly\ weapon may not be essential, if the conduct of the party isl such &s to induce a reasonable belief that he has one, or is so \| prepared that he can commit immediately the apprehended j injury. Yet the instruction as given may not in view of the actual facts of the case, though erroneous, have misled the jury. Again, instruction No. 2, given at the instance of the state, is criticised as involving a declaration by the court that defendant commenced the affray. While the instruction does not in terms contain such a declaration, yet we think the language might very naturally convey to the jury the impression that such was the view of the court in reference to the transaction, and unless it was an undisputed fact that defendant commenced the affray, ought to be modified. These are all the suggestions we feel warranted in making, in view of the incomplete condition of the record. The judgment of the district court will be reversed, and the case remanded for a new trial. The defendant will be returned from the penitentiary, and delivered over to the jailor of Atchison county, there to abide the order of the district court of that county. All the Justices concurring.	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The opinion of the court was delivered by Kingman, C. J.: The appellant was charged with the offense of embezzling the funds in the county treasury of Leavenworth county. He was tried and convicted, and from the judgment of the district court appeals. Several errors-are alleged, two of which raise the question of the sufficiency of the information. The first in order of time as well as in importance is, whether the law of 1873, page 177, amending § 88 of the crimes-and-punishment act of the General Statutes, includes within its provisions a county treasurer. So much of that section as is relevant to this case is as follows: “ If any clerk, apprentice or servant of any private person, or of any co-partnership, * * * or if any officer, agent, clerk or servant of any incorporation, or any person employed in such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent to convert to his own use, without the assent of his employer, any goods, rights in action, or valuable security, or effects whatsoever, belonging to any person, co-partnership, of corporation, which shall have come into his possession or under his care by virtue of such employment or office, he shall, upon conviction thereof, be punished in the manner prescribed by law for stealing property of the kind or value of the articles so embezzled, taken or secreted.” * * * Is the county treasurer such an officer as is contemplated by the statute? It is urged with great ability and ingenuity that this question must be answered in the negative on the ground that a county is not acorporation within the meaning of the term as used in the act, and that this is apparent from the language used; that the section provides that the embezzlement must be without the assent of the employer, and that the treasurer is not the employe of any one, and even if it should be held that the county was his employer, it could not in any way “assent” to an unlawful appropriation of its funds. Again, it is urged that the treasurer, by giving bond as required by law, becomes not a bailee, but a special insurer of the public funds that come into his possession, and therefore no criminal liability attaches to him for any use he may make of such funds. The legislature having made him an insurei’, could not have intended also to make him a criminal. The course of reasoning is only suggested, and no attempt is made to state it at any length. The court has reached a different conclusion from the counsel for the appellant on this point, and the reasons for such conclusion will be briefly indicated. A sketch of the legislation upon the subject of embezzlement is given by Mr. Bishop in the secbnd volume of his work on Criminal Law, from which it will be seen that from the time our ancestors thought it necessary to legislate upon this subject that the law has been gradually enlarged in its scope as from time to time society required such action. The section of our statute quoted above .embraces within its terms a much greater variety of classes of persons who can commit the crime of embezzlement, and a much greater variety of circumstances under which it can be committed, than was provided for in the older statutes in which the law on this subject had its origin, and in some respects than any of the statutes of other states that have come under our notice. It is not necessary to point out these changes except in one instance, and that is the substitution of the word “incorporation” in the General Statutes of 1868 for the phrase “incorporated company” in the Compiled Laws of 1862, (§82, p. 30Í,) and the continued use of this word in the laws of 1873, while in this last statute the word “corporation” is added in describing the parties whose goods, etc., may be embezzled. This change must have been made for a purpose, and in our judgment it was intentionally made so as to include many persons who were not before within its letter. The substituted word in the General Statutes is an awkward one, yet still it expresses its purpose with sufficient precision. While the word “corporation,” which is also used in the law of 1873, is a better one, it still does not change the meaning. Neither the revisors nor the legislature could have been ignorant of the difference between private and public corporations, and when they substituted a term that embraced all corporations for a phrase that evidently included only a voluntary association of persons, it will hardly do to say that they did it for the sake of euphony. The same revisors and the same legislature declared that counties were bodies corporate, (§ 1, ch. 25,) and must have known that the change in the section quoted would bring within its terms a large class of officers of municipal corporations, and others not theretofore embraced within its provisions. Take the plain terms of the law of 1873, and the declaration that counties are corporaations, and there can be little doubt that county officers are embraced within the letter of the statute. We are referred to the legislation of other states to show that those states have thought it necessary to enact specific laws embracing county officers, although their statutes in reference to embezzlement were very similar to our own. The inference we draw from such legislation is, that as it has been found necessary elsewhere it may have been thought important in this state; and certainly it was as well to do it by a change in the language of the statute of embezzlement as by a separate enactment. Indeed, it seems to us the better way. If the agents of individuals or incorporated companies should be punished for certain specified offenses, then it seems fit that the agents of the public should be punished for a like offense. Nor does the giving of a bond indicate a purpose not to secure the public interests by punishing those who wrongfully execute the public trusts confided to them. Such bonds are frequently given by the employes of private persons, and yet that would not be claimed as exempting them from the penalties of the law of embezzlement. We cannot perceive why a bond should have any other effect when required by law than when exacted by contract. This view is strength1 ened by reference to other provisions of our statutes which inflict severe penalties on the county treasurer for much less serious offenses than the one charged in this case. (See Gen. Stat., §73, p. 270, and §75, p. 930.) It is urged on this point that § 51, p. 264, establishes the relation of debtor and creditor between the county treasurer and the public, and that the treasurer being the debtor for the funds in his possession cannot be guilty of embezzling what is his own, as he owes it. But such is not the meaning or purpose of that section. It was intended to, and does, prescribe the method of keeping the treasurer’s books, but does not pretend to determine the relations of the county treasurer to the county. To draw from a section of law intended to provide a convenient form of keeping an account, an inference that those provisions define and establish the relations of the treasurer to the county, is hardly warrantable, and in our view not sound. It is argued that the treasurer cannot be included because he has no “ employer,” and by the statute the offense can only be committed against the assent of the employer. One thing is certain, that the treasurer is employed in his office, on business no.t his own, and not volunteered, but in pursuance of certain well-known conditions. All these facts constitute an employment, and also an employer and employe, and while we shall not attempt to define who is the employer, we are satisfied that there is one, and the fact that that employer cannot authorize the illegal use of the funds in the treasurer’s hands, only simplifies' the necessary testimony, but does not change the construction of the law. The truth is, that in the original English, statute the word was a necessary one, and has been retained in all the changes, although in some respects its place is an awkward one. It still retains its place in our statute, and if there is any supposable case where the word embezzlement itself does not presuppose the non-assent of the principal or employer, it must be in a case where the employer is legally incapacitated from giving such assent. II. Another defect alleged is, that the information fails to specifically describe the property charged to have been em bezzled. The information charges specifically to what fund each portion of the total charged be-m , i • i n longs, but does not describe the kinds ot money embezzled. In transactions such as are now under consideration, running through a long period of time, and involving large sums of money, received from a whole community, and being constantly changed by the necessities of the office, such a description of the funds is impossible, and if necessary to be averred must be proven, and therefore is an effectual bar to all prosecutions under the law. Mr. Bishop in his treatise on Criminal Law, after showing that under the English statutes the courts have held that the particular property embezzled must be specifically described, and pointing out cases where such description would be impossible, makes upon those decisions these observations: “ That a court departs from its duty when it does not allow some form of pleading to cover every offense known in the law. We conclude, consequently, that embezzlement may in reason be committed under the circumstances mentioned, in this section, and that those courts which have determined otherwise have erred.” (Vol. 2, §315a.) We are not forced to discuss the authorities on this point, for the change in the law necessarily compels such construction of its provisions as will give it effect, and we do not think that the'reason of those decisions when applied to the agents of private persons, who can at all times scrutinize the acts of those in their employ, apply to a public officer. The public at large can exercise no constant supervision over his acts, nor can it, like a private individual, assume the direct custody of the funds at any moment. The proper, authorities may require him to account, may examine the funds in his possession, but in the next hour all these funds may be changed, long before the act of embezzlement is done, or the intent is formed. To suppose that the legislature, when they added the large class of public officers to those who might be amenable to the law for the offense of embezzlement, intended to require proof of the identity of the money embezzled, or a description of it, and from whom it was received, is to infer that they intended to enact a law the enforcement of which would be impossible. It will not do to permit an artificial rule of pleading, having a doubtful foundation in reason, to lead to such a disastrous result. This exact point has been decided in Michigan in a, very able opinion, (The People v. McKinney, 10 Mich., 54,) and we but follow that decision in holding that the information is not defective in not describing precisely the funds embezzled. III. The next error alleged is in the overruling the special plea of defendant. These are the essential facts: Smith was arrested on a charge of embezzling the sum of $67,000 of the funds belonging to the county of Leavenworth, The information charges him, in the first count, . ° ' ' with embezzling $67,378.42 belonging to divers designated funds in the treasury of the county of Leavenworth. The special plea is, that the defendant did not have a preliminary examination as to the embezzlement of any money or other thing belonging to any other person than the county of Leavenworth, nor did he waive his right to such examination. The court upon an inspection ruled against the defendant, and with some hesitation we conclude correctly. To hold that the warrant of a justice should describe the offense as accurately as the information, would in most cases be to defeat justice. They are generally unlearned in the technicalities of the law, and describe the offense in general terms, while the information is expected to be more exact in its terms, and more full and accurate in its statements. We think the main purpose of the required preliminary examination was reached in this case, and the defendant sufficiently apprised of the general charge, in the complaint before the police judge, of what offense he would have to answer in a more definite charge before the district court. IV. The remaining questions in this case arise upon the instructions; and while the counsel for the appellant in general terms complains of the refusal of the court to give a great number of instructions covering many pages, yet no specific error is pointed out except as to one instruction to be noticed immediately. Many of these instructions so refused were substantially and correctly given elsewhere ™ °^argej s° were properly refused; of others, the meager statement of the evidence in the record leaves us unable to say whether they were relevant to any testimony in the case or not. In this state of the case we cannot say that any of the instructions were improperly refused. ' One of the instructions given is as follows: “The statute defining the crime and fixing the punishment for embezzlement was designed to punish the fraudulent or illegal conversion of money or property entrusted to the care of the persons named in the statute, and as a safeguard against such fraudulent or illegal conversion of such property; and when it has been established that the funds or property charged has reached the hands of the officer, .and that the same was not forthcoming when properly or legally demanded, the law presumes an illegal conversion of such funds or property, and the burden of proving the legal use of such property or money is upon the officer” The last part of this instruction lays down a rule to which we cannot assent. It would be most perilous to an officer who had faithfully discharged responsible duties for a series of years, handling in his official capacity large amounts of money, and who should find at last that there was a deficiency for which he could not account, or replace, although for a sum which, compared with the amounts which had passed through his hands, would be trivial. In such a case, under the instruction given, a jury would be compelled to find a verdict of guilty, although they might believe the man was perfectly honest. Nor is this an extreme case. Much harder ones may readily be imagined. In every case the jury are the sole triers of the main fact of the guilt of the accused, and judges of the testimony establishing each fact necessary to constitute the main fact. The facts are to be proven; what those facts show, is for the jury to decide.. It may be considered law in this country generally, that the burden of proof in criminal cases is on the state, and- that this burden never changes. It is true that there are some decisions seemingly adverse to this opinion, but they are very few, and do not rest on sound reasoning. The accused stands on the presumption of his innocence until a complete case is made against him, and if the testimony is insufficient on any point he must be acquitted. These rules are merely stated. Neither the public nor the profession is interested in the discussion of questions long settled, well understood, and generally acquiesced in. This instruction, we think, violates these rules, and is therefore erroneous. In the argument it is likened to an accused person being in the unexplained possession of property recently stolen. The cases are not analagous. In the latter case the crime itself is already proven. The possession of the fruits of the crime is such evidence as authorizes the jury to find such possessor guilty, and whether this is a presumption of law or fact, or no presumption at all, need not now be stated. We only desire to point out the difference between the two cases. In the one case it is used to prove both the offense and the offender; in the'other it is only used to prove the perpetrator of a crime already proven. In the case at bar, such evidence would be sufficient' if the jury believed the facts showed also the guilty intent of the accused to convert the property to his own use. Ordinarily, a jury might well draw such an inference from such facts; but the court below says in effect that they are compelled to draw such an inference, and this, in our opinion, is an unauthorized assumption by the court of a duty that belonged exclusively to the jury. From the proven facts the jury, not the court, must find that the accused converted the money to his own use. In this case they might well have found him guilty from the facts proven, if they had been left at liberty to weigh the value of these facts, as well as any others necessary to prove the guilt of the accused. We are not certain that the instruction misled the jury, but we are not certain that it did not; and as it is clearly erroneous, on this ground alone we are constrained to direct a reversal of the judgment, and order a new-trial in accordance with the motion of the appellant. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This is an action in the nature of quo warranto brought originally in this court by the county attorney of Coffey county to oust the defendant, C. H. Graham, from the office of county treasurer of said county. The petition states among other things as follows: “That heretofore, to-wit, on the 7th of November, 1871, the said C. H. Graham, respondent, was duly elected to the office of county treasurer of the said county of Coffey for the term of two years to commence on the first Tuesday in July, 1872; that subsequently the said respondent duly qualified for said office, and on the said first Tuesday in July, 1872, duly entered upon the discharge of the duties of his said office of county treasurer of said county; and that since said last-named day he has continued to perform the duties of said office, and that he now claims and assumes to be such public officer, and duly to exercise the powers of such officer, and duly to do divers acts appertaining to such office.” * * * And he has “ as such county treasurer done and suffered to be done during his said term of office divers acts hereinafter particularly set forth and stated, which by the provisions of law work and cause a forfeiture of his said office of county treasurer; and that said respondent has as such county treasurer during his said term of office neglected and refused to perform certain acts hereinafter particularly set forth and stated which it was his duty as such county treasurer to perform, which neglect and refusal to do said acts cause and work a forfeiture of his said office of county treasurer of said Coffey county.” The petition then proceeds at great length in stating the details, all showing or tending to show that the said treasurer had forfeited his office by certain acts done and neglected to be done. The answer of the defendant as amended sets up two defenses. The first is as follows: “That said defendant, neither denying nor confessing the allegations contained in said petition in this action filed, save and except as hereinafter stated, alleges and shows to the court as a defense to this action that while he admits that he was duly qualified and elected to the office of county treasurer of said Coffey county, as alleged in said petition, yet he shows to the court that at the time of the commencement of this action, prior thereto, and ever since said time, he has neither been in the possession of said office of county treasurer of Coffey county, nor of any of the rights or franchises or emoluments appertaining to or belonging to said office, and that during all of the time last aforesaid he has not used, exercised, nor attempted to use or exercise any of the franchises appertaining to or belonging to said office.” The second defense neither admits nor denies anything alleged in the petition, but disclaims all right, title, interest or claim to the office from April 1st, 1874. This action was commenced December 24th, 1873. The plaintiff demurred to the first defense contained in the defendant’s answer on the ground that it “does not state facts sufficient to constitute a defense to this action.” The first question for us now to consider is, whether said demurrer should be sustained or overruled. The question raised by said demurrer is, as we understand it, as follows: Can an action in the nature of quo warranto be maintained against a person who was duly elected to the office of county treasurer, who duly qualified and took possession of the office, who had possession and control of the office and acted as such county treasurer for some time, and who still claims to be entitled to hold the office, but who did acts and omitted to do acts w\|ffieUn possession of said office whereby he forfeited his rigm«bv further hold the office, and who for some cause unknown has, without resigning, and without having any judgment rendered against him, abandoned the office and is now and has been since the commencement of this suit wholly out of the possession of the office and of everything connected therewith, and is not attempting to use or exercise any of the rights or franchises of the office, and where it does not appear that any other person is or ever has been in possession or has ever had control of the office? That is, can the action be maintained against a party who is entitled to the office, who has had possession of the office and may legally take possession of it at any time again if he chooses, but who happens not to be in possession of the office at the time of the commencement of the action? Or, to shorten the statement further, will the mere want of possession at the time of the commencement of the suit defeat the action? We think not. The office was not vacant within the meaning of the law. But the person entitled to hold the office was simply neglecting and refusing to perform the duties of the office. And notwithstanding he was neglecting and refusing to perform the duties of his office, he was still the county treasurer. Misconduct in office does not of itself remove a county officer from office. It requires the judgment of a court of competent jurisdiction to do so. (Graham v. Cowgill, ante 114.) Now as the plaintiff is entitled to the office, and may take possession of it at any time that he may choose, and as it does not seem from the pleadings that any one else is in possession of the office, is he not constructively in possession of the same? We know from another case in this court, that another person is in fact in possession of the office; but as that person has possession of the office illegally we do not think it would affect our decision of this case, even if the fact of such possession 'had been stated in the pleadings in this case. Section 180 of the act relating to counties and county officers provides that “ If any * * * county officer shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty, he shall forfeit his office, and shall be removed therefrom by civil action in the manner provided in the code of civil procedure.” (Gen. Stat., 294.) The code of civil procedure provides that “Such action may be brought in the supreme court or in the district court in the following cases: * * * Second: Whenever any public officer shall have done or suffered any act which, by the provisions of law, work a forfeiture of his office. * * * Fifth: For any other cause for which a remedy might have been heretofore obtained by writ of quo warranto, or information in the nature of quo warranto” (Gen. Stat., 760, §653, subdivisions 2 and 5; Laws of 1871, p. 276, §1, sub. 2, 6.) Sir William Blackstone says that “A writ of quo warranto is in the nature of a writ of right for the king against him who claims or usurps any office, franchise or liberty, to inquire by what authority he supports his claim, in order to determine the right.” (3 Blackstone Com., 262.) Sir John Comyn says that “A quo warranto is in the nature of a writ of right for the king, against him who usurps or claims any franchises or liberties, to say by what authority he claims them.” (Comyn’s Dig., Quo Warranto, A.) Mr. Stephen, in speaking of the causes for which an information in the nature of quo warranto will and will not be granted, says: “ But that wjaich constitutes a sufficient user, depends upon the nature of the office or franchise claimed; thus, where it appeared in the case of a freeman or free burgess of a corporation, that he had been sworn in, though no act or claim be stated to have been done or made by the defendant, the information was granted; and though a mere claim to be sworn in is no usurpation, yet a swearing in, though defective in law, may be; and where a defendant had taken the oath in such a way as he thought to be sufficient at the time to make him a free burgess, it was considered to be an user.” (3 Stephen’s Nisi Prius, 2441.) In the present case the defendant does not merely claim the office, but he has a present and existing right thereto, and a right to take immediate possession thereof. Although he has in fact forfeited his right to further hold the office, yet that forfeiture has never been judicially declared, and until it is so declared he has a right to hold the office. And no one but the state has any right to ever ask that such forfeiture shall be declared. If the state should never have asked that the forfeiture should be declared, he could rightfully and legally hold his office until the expiration of his term. It is purely in the discretion of the state whether it will press the forfeiture or not. The user is certainly sufficiently shown. The defendant gave bond, was sworn in, took possession of the office and exercised the functions thereof for more than sixteen months, and still claims to be legally entitled to the office, although he is not attempting to exercise its functions. The demurrer to the first defense in said answer will be sustained. The judgment will be rendered in favor of the plaintiff and against the defendant in accordance with the stipulation of the parties. Kingman, C. J. concurring. [*From tlie first Tuesday of July, 1872, to November 15th, 1873: Graham v. Cowgill ante 114.]	[ -76, -28, -24, -100, 10, -32, -88, 12, 73, -79, -11, 115, -23, -54, 0, 123, -14, 47, 21, 122, -60, -74, 19, 105, -78, -14, -35, -43, -9, 75, -14, -43, 8, 48, 74, -35, 70, 8, -57, 92, -114, -127, 41, -27, 80, -120, 48, 121, 119, 75, 117, 38, -29, 42, 28, 99, 8, 44, 91, 9, 82, -13, -97, -123, -35, 31, 49, 7, -100, 71, -24, 46, -72, 57, 0, -8, 91, -90, -122, -12, 15, -119, 8, 116, 38, 17, -108, -17, 56, -120, 31, -101, -99, -90, -77, 105, 107, 33, -106, -99, 117, -112, 7, -2, -29, 5, 25, 44, 15, -50, -110, -109, 95, 124, -102, 19, -5, -95, 0, 97, -59, 100, 92, 103, 57, -101, -114, -16 ]
The opinion of the court was delivered by Valentine, J.: The plaintiffs in error who were plaintiffs below filed a petition in the district court asking for a certain injunction to restrain the defendants from committing certain acts which the plaintiffs alleged the defendants were then committing and about, to commit. The district judge granted a temporary injunction to restrain the defendants from committing said acts, but afterward on motion of the defendants dissolved the same solely on the ground that the petition did not state facts sufficient to constitute a cause of action. No evidence was used on the hearing of said motion to dissolve the injunction, except the petition, which was sworn to, and made an affidavit as well as a petition. For the purposes then of this case we must consider the facts stated in said petition as true; and upon such consideration did the judge of the court below err? The material facts stated i-n said petition are substantially as follows: The plaintiff John T. Brady was the treasurer of school district No. 51 of Nemaha county. The plaintiff Náthaniel Slosson was the clerk of said district; and the defendant Isaac Sweetland was the director of the same. These three persons by virtue of their offices constituted the school-district board of said district. The defendant Lawrence R. Wheeler however claimed to be entitled to the office of treasurer of said school district and had previously instituted an action in the nature of quo warranto to have his rights determined, and to obtain possession of said office. This action was still pending. During the time this office was in dispute the plaintiffs, Brady and Slosson, hired teachers for said school district. About the same time the defendants Sweetland and Wheeler also hired a teacher for said school district, to-wit, the defendant D. L. Anderson. The defendants then took possession of the school-house of the district, and refused to permit the plaintiffs to have charge or control thereof, and refused to permit the teachers hired by the plaintiffs to teach therein. The injunction prayed for is to restrain the defendants from further interfering with the plaintiffs’ management and control of said school-house. We think 'the injunction ought to be granted. Admitting for the sake of the argument that Wheeler is legally entitled to the said office of treasurer, and still as the office is occupied by another person who claims to be holding it rightfully and legally, Wheeler has no right to interfere therewith until some court in a proper proceeding therefor determines in his favor. He cannot while he is merely claiming the office employ teachers and take charge and control of the property of the district, nor can he even unite with one of the members of the school board for such a purpose. He has no right to attempt to take forcible possession of the office. He may prosecute his action of quo warranto to a final determination, and then if it be determined in his favor the court will put him in possession of the office. (Gen. Stat., 760, code §§ 656, 657.) But if the action should be determined adversely to him he will of course never get possession of the office. And pending the litigation concerning Wheeler’s or Brady’s right to hold said office, Brady, as treasurer de facto, claiming to hold the office as treasurer de jure, will have the right to hold and perform all the functions thereof unmolested by Wheeler or any one else. (The State v. Durkee, 12 Kas., 308.) The power to hire teachers and to take charge of and control the property of the school district belongs exclusively to the school-district board. (Gen. Stat., 925.) And any two members of the board may act for the board; (Gen Stat., 999, § 1, subdiv. 4.) The judgment of the court below must be reversed, and cause remanded for further proceedings. All the Justices concurring.	[ -76, -20, -76, -82, 42, 96, 104, -118, 65, 33, -25, 115, -19, -53, 4, 125, -1, 41, -44, 123, -62, -78, 3, -94, -78, -45, -37, -35, -77, 110, -12, -42, 12, 48, -54, -35, 70, 66, -59, -44, -50, 39, -85, -17, -39, 64, 48, 115, 82, 79, 49, -114, -29, 42, 28, 67, 105, 44, 91, 57, -32, -7, -98, 5, 77, 2, -79, 55, -98, -125, -24, 42, -104, 49, -125, -8, 58, -90, -126, -11, 33, -87, -120, -26, 103, 97, -67, -49, -68, -120, 30, 127, -83, 38, -110, 9, 99, 5, -74, -99, 116, 16, -121, 120, -25, 13, 28, 60, 14, -54, -106, -77, -113, 50, -110, -125, -5, 2, 48, 113, -59, -76, 92, 66, 19, -101, 79, -108 ]
Foth, C.J.: In 1979 Nancy Gates filed a petition in Rice County District Court to adopt her two grandchildren, then 12 and 13 years of age. Attached to the petition were consents to the adoption executed by the children’s parents in California in 1968. At the hearing the father (Donald Gates, petitioner’s son) appeared and objected to the receipt of the consents because inter alia, they were not executed in accordance with California law. The trial court agreed and excluded the consents. Finding that Donald’s consent was necessary it denied the adoption. Nancy Gates appeals; we reverse. When the petition was filed the two children had lived with their grandmother in Kansas since 1967. No issue has been raised about the delay in instituting the proceedings or about the in personam jurisdiction of the court. See K.S.A. 59-2203. Likewise, there is no contention that the consents were not voluntary or did not conform to the requirements of Kansas law, either as it existed in 1968 when the consents were signed or in 1979 when the petition was filed. K.S.A. 59-2102, as it read in 1968, simply required: “Consent in all cases shall be in writing, . . . acknowledged before an officer authorized by law to take acknowledgments .... Minority of a parent shall not invalidate his consent.” Later in 1968 the legislature amended the statute to add the provision the parent may sign in front of a judge. L. 1968, ch. 201, § 1. Other than that the statute is essentially unchanged. Here both consents were duly acknowledged before a California notary. The objection which was sustained was based on a California statute which requires consents to a California adoption to be executed before an officer of the California Department of Social Services. Cal. Civ. Code § 226.1 (West). In our opinion California law has no applicability to a Kansas adoption under this set of facts. In Jones v. Jones, 215 Kan. 102, 523 P.2d 743, cert. denied 419 U.S. 1032 (1974), a young couple, Kevin and Jean, executed consents in front of a notary in Baltimore, Maryland, in accordance with Maryland law. The young man’s parents eventually used the consents to adopt the couple’s illegitimate child in Kansas. When the couple sued to regain custody, the probate court granted summary judgment in favor of defendants. The court also ruled under Maryland law that, having attained the age of eighteen, Jean was competent to sign the consent and further held the consent’s execution complied fully with Kansas law. On appeal, the Supreme Court rejected the collateral attack on the adoption decree and looked to Maryland law to see if Jean could validly sign a consent and waive notice of future adoption proceedings. As to the form of the consent, the court left untouched the probate court’s ruling the consent fully complied with Kansas, law including Kansas guidelines on waiver and notice. In re Adoption of Trent, 229 Kan. 224, 624 P.2d 433 (1981), virtually controls this case. There the Court of Appeals had held the consent of the natural mother invalid because it was verified by a Kansas notary in a Missouri hospital. It also had found the consents were not in substantial compliance with Missouri law. The Supreme Court, however, held the consents were in substantial compliance with Kansas law and were therefore adequate to support the Kansas adoption. It went on to say, “Given our interpretation of the Kansas statute, we conclude the interpretation and effect of Missouri law is immaterial in the instant case.” 229 Kan. at 231. The clear implication is that a consent which complies with Kansas law will support a Kansas adoption regardless of whether it complies with the law of the state where it is executed. It is only where there is some deficiency under Kansas law that a Kansas court need be concerned with whether there was compliance with the law of the state of execution. It follows that the trial court erred in rejecting the consents on their alleged deficiency under California law. An examination of the other grounds alleged for their rejection reveals that they are without merit and the consents should have been admitted. In view of this finding we do not reach the other issue raised by appellant. Reversed and remanded with directions to proceed with the adoption.	[ 49, -52, -35, 45, 10, -31, 43, 16, 82, -77, 103, 83, -17, 106, -108, 120, 91, 39, 16, 121, -47, -78, 87, -55, -14, -13, -12, 95, -15, 109, 116, 119, 72, -16, -118, -11, 102, -54, -107, -40, -90, 6, -119, 64, -111, -110, 48, 97, 90, 14, 81, 62, -79, 42, 60, 87, 40, 110, -5, -2, -48, -11, -81, 23, -36, 6, -96, -90, -110, -91, 80, -81, -104, -103, 17, -24, -109, -74, -50, -2, 75, -119, -120, 101, 102, -95, -68, -17, -104, -120, -18, 90, -83, -90, -105, 88, 104, 37, -74, -4, 80, 16, 43, 122, -17, 36, 31, -20, 4, -113, -34, -109, 76, -14, 8, 3, -13, 68, 3, 113, -53, 102, 93, 99, 48, -109, -98, -6 ]
Fromme, J.: The plaintiff school district brought this action to quiet its title to certain real estate in Johnson County, Kansas, on which certain school buildings are located. The action was brought against the former owners of the real estate who had been divested of title in eminent domain proceedings in 1956 and 1959. The question to be decided is whether the eminent domain statute, G.S. 1949, 72-4701 (1955 Supp.), under which title was acquired by the district, authorized the taking of fee simple title. The district court held that it did, that the school district acquired fee simple title, and that the title of the school district should be quieted against the claims of the former owners. The former owners appeal to this court and we reverse. The following facts are undisputed: In 1956 the predecessor of U.S.D. 512 acquired the property of the defendants, Dennis L. Steele and Frances C. Steele, by right of eminent domain. The parties do not question the regularity of those proceedings, only the extent of the title acquired. The pleadings in the condemnation action merely alleged it was necessary to appropriate and acquire the private property for use for a site for a school building. The appraisers appraised the land and assessed damages both for the value of the tract and for severance. The journal entry provides that upon payment of $15,000.00 plus court costs and appraiser’s fees, the title to said lands shall immediately vest in the school district. The amount was paid into court and the school district proceeded to construct a building thereon. In 1959, three years later, the predecessor of U.S.D. 512 commenced a similar proceeding to acquire certain property of the defendant Vic Regnier Builders, Inc., which was adjacent to the property previously acquired from the Steeles. The eminent domain proceedings were undertaken pursuant to the authority of G.S. 1949, 72-4701 (1955 Supp.), as before, and the petition alleges the necessity for appropriating the property for the lawful purposes of the school district. The journal entry recited that the district had the right of eminent domain for the purpose of appropriating the land described in its petition to be used as an addition to and an extension of its present school building site. The appraisers valued the land and set damages at $10,500.00. The amount was paid into court and the school district has since held possession of the property. The parties do not question the regularity of these proceedings, only the extent of the title acquired. As a result of these two condemnation proceedings, the plaintiff’s predecessors acquired the property, constructed a school building, and added to the school building site. The property so condemned became part of the Marsha Bagby Grade School Attendance Center. Thereafter, the number of students attending at this attendance facility dropped and in 1978 the electors within the area voted to close the school since it was no longer needed as an attendance facility. Plaintiff alleges in its petition that the building continues to be used for school purposes, including the offices for the Special Education Department of the district, and that the school board now desires to clear title to the real estate so that the property may be sold or otherwise disposed of. The defendants answered and alleged that the school district acquired only the right to use the two parcels of land as a site for school buildings and for other school purposes. They further allege that the property has been abandoned, that it is no longer being used for the purposes authorized, and that, when abandoned, the title to the property reverts to the former owners, the defendants. We note that the defendants filed cross-petitions raising additional issues, each claiming title not only as against the plaintiff but also as against each other. The district court did not reach these issues for it held plaintiff acquired fee simple title, thus excluding any and all claims by the defendants. The power of eminent domain can only be exercised pursuant to some specific authorization by legislative enactment. Soden v. State Highway Commission, 192 Kan. 241, 244, 387 P.2d 182 (1963). The extent of any taking by eminent domain is limited to that estate, title, or interest expressly authorized by the enabling legislation and no person can be divested of any greater interest by condemnation than is authorized by the enabling statute. Sutton v. Frazier, 183 Kan. 33, 39, 325 P.2d 338 (1958). The enabling legislation empowering the school board in the present case to acquire the defendants’ properties provided: “The right of eminent domain is hereby conferred upon common-school districts, rural high-school districts, community high-school districts and the boards of education of cities of the first and second class, to be exercised in the manner provided by article 1 of chapter 26 of the General Statutes of 1949 and acts amendatory thereof and supplemental thereto. Such right of eminent domain may be invoked for the purpose of appropriating private property for use for sites for school buildings, playgrounds, agricultural, vocational or athletic purposes, or any addition or extension to any school building site or playground, or for any other school purpose for which property may be lawfully acquired.” G.S. 1949, 72-4701 (1955 Supp.). Emphasis supplied. We note in reading this statute, neither the word “title” nor the phrase “fee simple title” appears in the statute to indicate the extent of any interest to be taken. An eminent domain statute will be construed to authorize only the taking of an easement or an interest in land sufficient for the public use intended rather than a fee title, unless the enabling statute clearly provides otherwise, either expressly or by necessary implication. Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, 104, 605 P.2d 125 (1980); Devena v. Common School District, 186 Kan. 166, 170, 348 P.2d 827 (1960); State, ex rel., v. State Highway Comm., 163 Kan. 187, 196, 182 P.2d 127 (1947). The defendant-appellants rely heavily on Sutton v. Frazier, 183 Kan. 33, and Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, in support of their argument that the school district acquired only an easement. The Sutton case involved the condemnation of property to construct sewage disposal plants. The court in Sutton examined G.S. 1949, 19-2765 which provided: “ ‘That every improvement district incorporated under the terms of this act shall have the power: “ ‘Third, to plan and construct public works and improvements necessary for public health, convenience or welfare within the limits of the improvement district. Also to construct works outside the limits of the district which may be necessary to secure outlets, disposal, etc., and permit satisfactory performance of the works within the district. “ ‘Fifth, to take private property for public use by exercise of the right of eminent domain as provided by law.’ ” 183 Kan. at 40. The court in Sutton used strong language in reaching its conclusion that the sewer district did not acquire fee title: “Nowhere in the empowering statute (19-2765, supra) has the legislature clearly provided, either expressly or by necessary implication, that an improvement district in the exercise of its power of eminent domain acquires title to real property in fee simple absolute. The statute is silent as to how much land, or what interest therein, shall pass to the improvement district, and how much of the land, or what interest therein, shall remain with the original proprietor. Therefore, it must be inferred that the legislature did not intend to confer upon an improvement district the power to acquire title to any greater interest in land condemned than was necessary to make the public improvement project, in this case a sewage disposal plant, a good and sufficient operating plant for the public. “The legislature is capable of speaking with clarity when it intends that the condemning authority shall acquire the fee simple title to real property taken under the power of eminent domain. (See Laws of 1864, Ch. 124, § 4, repealed; G.S. 1957 Supp., 13-1388; G.S. 1957 Supp., 17-4749; and G.S. 1957 Supp., 68-413 and 413a.) “. . . Nothing is taken by implication or intendment.” 183 Kan. at 43, 43, 45. In Winn this court construed K.S.A. 17-618, which authorized public utility companies to appropriate land for the use of said utility corporations. This court held that since the empowering statute, K.S.A. 17-618, did not specifically authorize the condemning authority to take title to real property in fee simple, the condemner was limited to an appropriation limited to the use and purposes of the corporation, a permanent easement. The appellee school district in support of the lower court’s decision relies first on the wording in the eminent domain procedural statute in effect in 1956 and 1959, G.S. 1949, 26-101. This statute provided for the filing of a petition, the appointment of appraisers, publication of notice, and then concluded: “If the petitioner desires to acquire the land at the appraised price it shall within thirty days deposit with the clerk of the district court the total amount of such appraisement, shall pay the court’s costs and the fees of the appraisers, to be fixed by the court or the judge thereof, and the title to all such lots and parcels of ground thereupon shall immediately vest in the said petitioner, and the said petitioner shall be entitled to the immediate possession thereof and all remedies provided by law for the security of such title and possession.” G.S. 1949, 26-101. Emphasis supplied. G.S. 1949, 26-101 outlined the procedure for the condemnation of land by a corporation having the right of eminent domain in 1956 and 1959. It contained no grant of power and could not affect the extent of the authority exercised under an enabling act. Sutton v. Frazier, 183 Kan. at 40. Therefore, any reliance on the wording of the procedural statute to bolster the extent and nature of the interest or title authorized to be taken is misplaced. The extent and the nature of the interest or title which may be acquired by eminent domain is limited to that which is expressly authorized by the enabling legislation. The appellee school district relies on two cases which involve the condemnation of land for school purposes. Buckwalter v. School District, 65 Kan. 603, 70 Pac. 605 (1902), and Devena v. Common School District, 186 Kan. 166. The empowering statute in effect on the dates of both of these condemnation proceedings considered in Buckwalter and Devena was G.S. 1889, Section 5591 (L. 1885, ch. 174, § 1). This enabling act authorized a school district to “obtain title to the site selected by such school district” and in any instance where the school district “had not acquired title” before a school building was erected on land it was authorized to condemn that land. Appraisal of the site was provided for in the act. The statute further provided, “And upon such payment being made to such county treasurer by such district board, the title to such site, or addition thereto, shall vest in such school district.” In both of these cases the court held the enabling act empowered the district to acquire title to a building site and that continued reference in the statute to acquisition of title authorized the taking of fee simple title. Referring again to G.S. 1949, 72-4701 (1955 Supp.), which is the source of the power and authority of the school district in our present case, we find no reference to obtaining title, much less fee simple title. The references in prior statutes to obtaining title were entirely deleted from the statute when G.S. 1949, 72-4701 (1955 Supp.) was enacted. The statute, 72-4701, provided that the right of eminent domain may be invoked “for the purpose of appropriating private property for use for sites for school buildings” or for any other school purpose. The wording as to the interest to be acquired under this enabling act now under consideration is limited in nature. As pointed out in Sutton v. Frazier, 183 Kan. at 43, the legislature is capable of speaking with clarity when it intends that a condemning authority acquire fee simple title to real property taken under the power of eminent domain. No such authority is expressed in the statute under consideration. The appellee school district makes several additional arguments in support of the trial court’s decision. One argument is based upon the premise that the legislature did not intend to take away from school districts the right to acquire fee simple title when G.S. 1949, 72-4701 (1955 Supp.) was adopted. This argument is based upon legislative history surrounding the revision, where references were made by the legislative commission to a revision of the statutes and submission of the completed revision to the legislature for reenactment. We do not attach any great significance to these after-the-fact comments of the commission. They are too general in nature to bear upon the specific statute with which we are now concerned. Also, when the specific enacting clause of the statute is referred to, the reference to a clarification and codification of certain laws governing school districts does not help to construe the extent and nature of the right of eminent domain authorized. It is further argued that other statutory provisions in effect when the property was condemned authorized the school board to sell any schoolhouse, site, building or playground when lawfully directed by the qualified voters of the district. See G.S. 1949, 72-1023. The plain answer to that argument is that no authorization to sell property can enable a school district to dispose of property or an interest therein which the district does not own. We are concerned with acquisition through eminent domain proceedings. School districts may acquire fee simple title to property by deed, through purchase or gift. Such did not occur in our present case. A final argument should be mentioned. The school district points out that it has invested somewhere close to $850,000.00 in these school buildings and, if title is held to revert, the former owners will receive an undeserved windfall. The original construction cost of these school buildings, now almost twenty years old, does not establish their present value. The necessary cost of remodeling school buildings for other uses may well exceed the cost of new construction. Also, it should be noted the school district may retain the use of this property so long as it desires to use the same for school purposes. We hold a school district which condemned private property under authority of G.S. 1949, 72-4701 (1955 Supp.) for use as a site for school buildings, or any other school purpose, did not acquire the fee simple title to the land condemned. When said school district ceases to use the property for school purposes and abandons the same, title to the property reverts to the former owners, their heirs, and assigns. Because of our decision as to the first issue it becomes necessary to consider the question of whether the plaintiff school district has abandoned the use of the property. The trial court found it unnecessary to address this issue because of its decision that title should be quieted in the school district. The petition states that the building continues to be used for school purposes, including offices for the Special Education Department of the district, and for miscellaneous other school purposes including storage of equipment, library, and supplies. Whether this be true is a question of fact to be determined in the trial court since appellants contend the use has been abandoned. So long as the school district uses the property for school purposes it retains the right to continue such use. If it attempts to dispose of the premises or abandons the use of the property, title will then revert to the former owners. The judgment of the trial court is reversed and the case is remanded for further proceedings in accordance with the opinions expressed herein.	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Foth, C.J.: Plaintiff James Gragg taught and coached football at Williamsburg High School during the 1977-78 and the 1978-79 school years. Presumably unsatisfied with his performance, the school board cut short his career at Williamsburg High by giving him notice of nonrenewal of his teaching contract by letter received by him March 26, 1979. Plaintiff brought this action to enjoin the board from terminating him and for his salary for the 1979-80 school year. He concedes that as an untenured teacher he was not entitled to a statutory hearing on nonrenewal, but contends the notice to him was not timely, and he should have had a hearing on that issue. His contract for the 1978-79 school year contained two clauses bearing on this appeal. They read: “Except where terminated as hereinbefore provided, the teacher shall be entitled to a contract for the next succeeding school year unless written notice of intention not to renew this contract is served by the district upon the teacher on or before the 15th day of March, or unless the teacher gives written notice to the district on or before the 15th day of April that the teacher does not desire to enter into a contract for the next succeeding school year. “7. APPLICABILITY OF LAWS, RULES AND REGULATIONS. The provisions of this contract shall be specifically subject to all laws, rules, regulations and orders, now or hereinafter enacted, adopted, issued, altered or amended, of the United States of America and the State of Kansas.” (Emphasis added.) At the time the parties entered into the contract in June 1978, K.S.A. 72-5411 (Weeks), the “continuing contract” law, provided: “All contracts of employment of teachers in the public schools in the state, shall continue in full force and effect during good behavior and efficient and competent service rendered by the teacher, and all such contracts of employment shall be deemed to continue for the next succeeding school year unless written notice of intention to terminate the contract be served by the governing body upon any such teacher on or before the fifteenth day of March or the teacher shall give written notice to the governing body of the school district on or before the fifteenth day of April that the teacher does not desire continuation of said contract. Terms of a contract may be changed at any time by mutual consent of both the teacher and the governing body of the school district.” (Emphasis added.) Shortly after the parties executed the contract, a legislative amendment effective July 1, 1978, changed the notice deadlines for both school board and teacher to April 15 and May 15 respectively (L. 1978, ch. 292, 1). The trial court granted summary judgment against the plaintiff, finding the board gave timely notice before the April 15, 1979, deadline fixed by the amended statute. Plaintiff has appealed. The dispositive issue in this case is whether the notice of nonrenewal was given in a timely manner under the terms of the contract and under K.S.A. 72-5411, either as it originally read or as amended. The trial court found that paragraph 7 of the contract, by specific references to laws “hereinafter enacted . . . altered or amended,” incorporated by reference the 1978 amendment to 72-5411, which extended until April 15, 1979, the board’s time to serve its notice of nonrenewal. Hence notice in late March was timely. While we fully agree with the trial court, we would add the following analysis, recognized only in passing in the trial court’s memorandum: School districts, in contracting with teachers, are subject to the cash-basis law. Patterson v. Montgomery County Comm’rs, 145 Kan. 559, 66 P.2d 400 (1937). Under K.S.A. 10-1116(6), school districts may contract with teachers despite not having on hand the funds to pay next year’s salaries, but the total obligations so incurred cannot exceed 100% of the previous fiscal year’s expenditures. The effect is to prohibit school districts from hiring teachers for more than one year at a time. Even the professional negotiations act, K.S.A. 72-5413 et seq., recognizes that what is in issue there is the issuance or renewal of “the annual teachers’ contracts.” K.S.A. 72-5423(a). (Emphasis added.) The continuing contract law and the corresponding provision (K.S.A. 72-5437) of the “due process” act for tenured teachers (K.S.A. 72-5436, et seq.) both carve limited exceptions out of this established procedure. Teachers’ contracts, while absolutely binding on the board for only one year, may continue and become binding obligations for the succeeding year unless the board gives notice by the date specified. That date was formerly March 15, and is now April 15, under both acts. Could the district by contract bind itself to give notice by an earlier date? We think not. It could not, for example, hire a teacher in June for the forthcoming year and provide that if notice were not given by August 1 — before school even started — the contract would continue for a second year. The result, in such an extreme case, would be the equivalent of a two-year contract. In our opinion, if the parties are to avail themselves of the option for renewal provisions otherwise prohibited but authorized by the continuing contract law, they must do so in conformity with the statutory scheme. Two general principles of law seem applicable here: “A school district is an arm of the state existing only as a creature of the legislature to operate as a political subdivision of the state. A school district has only such power and authority as is granted by the legislature and its power to contract, including contracts for employment, is only such as is conferred either expressly or by necessary implication.” (Citations omitted.) Wichita Public Schools Employees Union v. Smith, 194 Kan. 2, 4, 397 P.2d 357 (1964). “One who makes a contract with a municipal corporation is bound to take notice of limitations on its power to contract and also of the power of the particular officer or agency to make the contract. The municipal corporation cannot in any manner bind itself by any contract which is beyond the scope of its powers, and all persons contracting with the corporation are deemed to know its limitations in this respect.” Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, Syl. ¶ 8, 479 P.2d 875 (1971). From those principles we conclude that provisions of the applicable contract statute—here K.S.A. 72-5412—control teachers’ contracts, and any attempt by a board to contract for terms which would violate the specific statutory terms would be ultra vires and void. Here, the renewal provision of the contract coincided with the continuing contract law as it read at that time. To that extent, the contractual terms were mere surplusage. When the legislature amended the law, as the parties knew it had the right to do, the amendment applied to this contract and would have done so even in the absence of the “conformity” clause in the contract. The amendment, of course, took effect long before plaintiff’s right to a new contract matured. Hence, it did not operate to deprive him of any vested right. The result, as concluded by the trial court, is that the board’s notice, given after March 15 but before April 15, as permitted by the amended statute, was effective notice of nonrenewal. Plaintiff makes two additional arguments. First, he says that despite his nontenured status he had a property right in his contract of which he could not constitutionally be deprived without a hearing. He relies on Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty., 432 F. Supp. 895 (D. Kan. 1977). That case, however, involved a tenured teacher who was fired in mid-year. Under those circumstances there can be no doubt a teacher is entitled to a hearing. See Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 542 P.2d 339 (1975). Here, we have an untenured teacher and a simple decision not to renew. He may have had expectations, but he had no property right in a renewal; no hearing was required. Board of Regents v. Roth, 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701 (1972); Gillett v. U.S.D. No. 276, 227 Kan. 71, 605 P.2d 105 (1980). Second, he argues that the 1978 amendment of the continuing contract law was not intended by the legislature to impair the obligation of previously existing contracts. He cites in support K.S.A. 72-5444, part (§ 9) of the “due process” act of 1974 (L. 1974, ch. 301). That section merely says neither the 1974 act, nor any amendment or repeal of it, was meant to impair the obligation of “any existing contractual right.” We are unable to see any applicability of that statute to the continuing contract law or to its 1978 amendment. Of course, the legislature may not at any time impair the obligations of valid existing contracts. It did not do so here; the 1978 amendment of the continuing contract law simply modified an existing statutory procedure for renewal which was written into existing contracts by operation of law. As noted above, plaintiff’s right to a new contract had not ripened when the change was made and, because of the change coupled with the board’s action, it never did ripen. Affirmed.	[ -112, -8, -44, 110, -118, -87, 58, -110, 121, -29, 37, 87, -19, -43, 29, 125, -45, 109, -48, 104, -45, -77, 99, 69, -108, -1, -47, -43, -69, 79, -80, 95, 76, 48, -62, -43, -122, -62, -55, 88, -86, 6, -83, -4, 89, -61, 48, 109, 88, 47, 49, -2, 115, 46, 25, 71, 44, 62, 95, 105, -64, -47, -109, -123, 106, 21, -110, 37, 30, 7, -64, 109, -104, 61, 40, -8, 82, -90, -14, 117, 13, -87, -87, 100, 98, 51, -72, -19, -108, -71, 95, -16, 13, -90, -103, 121, 99, 7, -98, -98, 113, 20, 7, 126, 98, -52, 23, -92, 10, -118, -12, 51, 79, -19, -98, 15, -1, 39, 49, 21, -53, -90, 94, 71, 50, 91, 30, -68 ]
Brazil, J.: This is a breach of contract claim in which the plaintiffs seek to compel the defendant to specifically perform its promises in a certain contract to restore land adjacent to the plaintiffs’ property to its original contour, or, in the alternative, the plaintiffs pray for damages as a result of breach of contract by the defendant. In addition to a breach of contract action, plaintiffs seek in junctive relief in that they seek to enjoin defendant from erecting any improvements on its property. Appeal is from a judgment on the pleadings. Plaintiffs and defendant are adjoining landowners in Riley County. Defendant desired to operate a rock quarry on its property, which required a zoning change. To insure that plaintiffs did not object to the defendant’s proposed use, the parties entered into a contract that is the subject of this litigation. The contract stated that if defendant monitored the blasting on plaintiffs’ land, kept dust from their land, and restored the land to its proximate contour, plaintiffs would assist in the zoning change. After some excavation, defendant began to construct a building at a location that rendered it impossible to restore the land to its original contour. Plaintiffs filed suit to enjoin the construction and to force restoration of the land or, in the alternative, for damages. The trial court granted defendant’s motion for judgment on the pleadings. It held that the contract created an interest in property and that the interest was contingent upon the completion of excavation. Since no time limit for completion appeared in the contract, the court held that the contract was void and unenforceable because it violated the rule against perpetuities. The plaintiffs argue that the agreement between them and the defendant is purely a contractual transaction. The defendant argues, and the trial court found, that the agreement created an interest in property which equity could enforce and, therefore, the rule against perpetuities should apply. The parties have cited no decision applying the rule to similar facts; and we have found no such decisions. The rule against perpetuities is one of property only, and it has no application to mere personal contracts that do not create or transfer any right of property. When, however, a contract creates an interest in property that could, except for the rule, be enforced by a decree for specific performance, such interest is subject to the rule. 70 C.J.S., Perpetuities § 10, p. 586. Contracts and agreements on the use of the land such as are involved in the present action are said to be restrictive agreements that create an equitable interest in the land. Restatement of Property § 6, Comment b, pp. 15-16 (1936). The rule against perpetuities governs both legal and equitable interests. In re Estate of Woods, 181 Kan. 271, Syl. ¶ 8, 311 P.2d 359 (1957). Assuming, therefore, that the rule against perpetuities applies, it must then be determined whether the rule has been violated: “[T]he rule against perpetuities is concerned solely with the vesting of future interests in property. Simply stated, the rule against perpetuities precludes the creation of any future interest in property which does not necessarily vest within twenty-one years after some life or lives presently in being, plus the period of gestation, where gestation is in fact taking place.” Harvey v. Harvey, 215 Kan. 472, 478, 524 P.2d 1187 (1974). The Harvey case has been cited by the plaintiffs and the trial court for the proposition that the rule does not apply to vested interests, but only to contingent interests. To determine whether equitable interests are vested or contingent, the same principles are to be applied as with legal interests. Gray, The Rule Against Perpetuities, § 116 (4th Ed. 1942). If the condition on which the estate depends is precedent, the estate is contingent; if subsequent, the estate is vested subject to defeasance. Harvey v. Harvey, 215 Kan. at 478, The rule against perpetuities has reference to the times within which the interest or title vests. A vested interest does not necessarily include a right to possession and if the title is vested, the interest is not subject to the rule however remote may be the time when it may come into possession. In re Estate of Woods, 181 Kan. at 281. The question here is whether plaintiffs’ equitable interest in compelling the restoration of the contour of defendant’s land was vested at the time of the agreement, or, as found by the trial court and argued by defendants on appeal, is contingent on the termination of the quarrying. An estate vests in interest when there is a present, accrued, fixed and indefeasible right to enjoyment at a future time. McEwen v. Enoch, 167 Kan. 119, 204 P.2d 736 (1949). Here it would seem the agreement gave plaintiffs a vested right to enforce restoration of the contour of defendant’s land. Only the enforcement of the right, not the vesting, was subject to the condition that quarrying terminate. The contract gave the plaintiffs the present right to force defendant to restore its property at some future time. Clearly, once the defendant began to remove stone, plaintiffs’ rights under the contract were activated. During the entire quarrying operation, plaintiffs had the right to force the restoration immediately upon conclusion. Although the time of conclusion was not stated, it was certain to occur. This right was theirs and no event in the future could take it from them. Therefore, there was no contingency on whether plaintiffs would enjoy this right, just a question of when. The estate was vested and not subject to the rule. Reversed and remanded for further proceedings.	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Swinehart, J.; This is an appeal from the judgment of the District Court of Miami County finding James M. Hobson, T/N James M. Crumm, Jr., not a fit and proper person to be dealt with under the Kansas Juvenile Code, pursuant to K.S.A. 1980 Supp. 38-808(b). Hobson was charged with first degree murder for the shotgun killing of his stepbrother. The incident occurred just thirty-seven days before the juvenile was to turn eighteen. The State moved to certify Hobson for trial as an adult and for waiver of juvenile court jurisdiction, pursuant to K.S.A. 1980 Supp. 38-808. The trial court held a two-and-a-half-day hearing on the motion and heard a considerable amount of testimony. A good portion of the testimony concerned the various juvenile facilities located throughout the state and the treatment programs which would be available. The trial court also heard testimony from a number of experts in regard to the type of treatment which would most benefit Hobson. After hearing the evidence, the trial court granted the State’s motion and held that Hobson was not a fit and proper person to be dealt with under the juvenile code. Hobson raises two issues on appeal; (1) whether the decision of the trial court that he was not a fit and proper person to be dealt with under the Kansas Juvenile Code was based on substantial competent evidence; and (2) whether the decision denying him the benefits and protection of the juvenile code, which was based in part upon the trial court’s dissatisfaction with certain provisions of that code, was arbitrary and constitutes a denial of due process. Upon a review of the record, we hold that the trial court’s decision is supported by substantial competent evidence and is in keeping with the principles recently set forth by the court in In re Johnson, 5 Kan. App. 2d 420, 617 P.2d 1273, rev. denied 229 Kan. 670 (1980). Therefore, Hobson’s first contention of error fails. Hob son’s second contention of error concerns the following statement which was included in the trial court’s journal entry: “Also, the court is disturbed that once the custody of the juvenile is remanded to the Secretary of Social and Rehabilitation Services, the Court would lose any control over the juvenile. There is no guarantee that the juvenile would remain in the care and custody of the Secretary of Social and Rehabilitation Services until his psychiatric and psychological needs have been met.” Hobson contends that the trial court’s apparent dissatisfaction with the juvenile laws resulted in a denial of due process. The trial court’s concern about the lack of judicial control over juvenile offenders once they are placed in the custody of the Secretary of Social and Rehabilitation Services is an issue which should more properly be dealt with by the legislature, and not the courts. What is perceived as an inadequacy in the present juvenile code should not be considered as a factor in determining whether a particular juvenile is a fit and proper person to be dealt with under the code. We therefore find that the trial court erred. The error, however, is not reversible. In In re Edwards, 227 Kan. 723, 728, 608 P.2d 1006 (1980), the court was presented with a similar factual situation. One factor considered by the trial court in Edwards was that the committing court could not require the juvenile facility, or the Secretary of Social and Rehabilitation Services, to whom the delinquent was committed, to keep him locked up until age 21, or until the committing court was satisfied that the juvenile was successfully rehabilitated. The Kansas Supreme Court affirmed the trial court’s decision, notwithstanding its error, stating: “It cannot be said, however, that the trial court based its decision solely on that conclusion.” 227 Kan. at 728. This statement is equally applicable to the case here on appeal. The record clearly reflects that the trial court considered all the factors listed in K.S.A. 1980 Supp. 38-808(b). The fact that the trial court erred by also considering its dissatisfaction with certain provisions of the juvenile code is insufficient to constitute reversible error. Affirmed.	[ -80, -22, -7, -67, 10, 97, 56, 28, 83, -13, 119, 115, -17, -49, 1, 123, 82, 127, 68, 121, -15, -109, 87, -55, -74, -14, -45, -41, 51, 127, 124, -42, 72, 112, 74, 85, 66, -118, -11, -44, -114, 0, -119, -16, 82, 65, 34, 106, 30, 6, 49, 14, -13, 42, 26, -61, -24, 44, 75, -4, -48, -47, -53, 21, -50, 0, -93, -124, -110, 9, 80, 46, -38, 57, 8, -8, 82, -90, -126, 116, 15, 25, -120, 103, 98, 33, 25, -58, -87, -87, 47, -70, -115, -89, -104, 25, 99, -115, -106, -3, 116, 48, 46, 124, -25, 68, 26, 108, -128, -113, -12, -111, -113, 37, -86, -69, -5, -123, 48, 117, -34, -30, 92, -44, 112, -37, -65, -46 ]
Prager, J.: The sole issue involved on this appeal is whether a provision in a teacher’s employment contract is enforceable as a valid liquidated damages clause or is void as an illegal penalty. The facts are not disputed. Defendant, Neil DeWerff, had been employed by the plaintiff, a unified school district, for many years as a teacher and basketball coach. On June 28, 1978, defendant gave notice of his resignation to the school district. He was informed that his resignation would be accepted upon the payment of $400 as required by the negotiated teachers employment contract. Defendant refused to make the payment and plaintiff sued. The contract provision in question provided: “BOARD OF EDUCATION USD 315 “PROPOSAL; PENALTY FOR BREAKING CONTRACTS: “1. It is the intent of this Board to negotiate an agreement that will tend to make teachers as responsible for the compliance to their contracts as they will expect the Board of Education to be. “2. It is proposed that for faculty members currently on the staff, they be declared under contract for the purpose of this proposal on and after April 15 of the current year; unless an agreement has been reached between the Teachers’ Association and the Board of Education mutually to change this date. “3. That in all cases where a teacher who is under contract fails to honor the full term of his or her contract, a lump sum of $400.00 be collected between contract acceptance and August 1 if contract is broken. After August 1 a penalty of $75.00 will be charged for each full or part of a month remaining on his or her contract. “4. The Board reserves the right to waive the provisions of this penalty policy.” The board’s proposal was accepted by the teachers and included in the negotiated contract. The trial court held an evidentiary hearing on two basic factual issues: (1) Whether the damage amount stipulated in the contractual provision is a reasonable amount, and (2) Whether the board has applied the contractual provisions impartially, equitably, and fairly. It found the contractual provision to be a valid liquidated damages clause, the agreed amount of $400 to be reasonable, and that the board had applied the provision impartially and fairly in the past. Accordingly, judgment was rendered for plaintiff and defendant appeals. In support of his position that the contract provision is an illegal penalty, defendant emphasizes the following factors: (1) The language in the provision describes it as a “penalty”; (2) the stated purpose of the clause is to compel performance rather than to estimate damages; (3) the provision is coercive because plaintiff had the ability to waive its enforcement; and (4) the stipulated amount is binding regardless of the actual amount of damages incurred. It is well settled that parties to a contract may stipulate to the amount of damages for breach of the contract, if the stipulation is determined to be a liquidated damages clause rather than a penalty. A stipulation for damages upon a future breach of contract is valid as a liquidated damages clause if the set amount is determined to be reasonable and the amount of damages is difficult to ascertain. White Lakes Shopping Center, Inc., v. Jefferson Standard Life Ins. Co., 208 Kan. 121, 126-28, 490 P.2d 609 (1971); Beck v. Megli, 153 Kan. 721, 726, 114 P.2d 305 (1941); Railroad Co. v. Gaba, 78 Kan. 432, 435-36, 97 Pac. 435 (1908). The distinction between a provision for liquidated damages and one for a penalty is that a penalty is to secure performance, while a liquidated damages provision is for payment of a sum in lieu of performance. Erickson v. O’Leary, 127 Kan. 12, 14, 273 Pac. 414 (1929); see also Gregory v. Nelson, 147 Kan. 682, 686, 78 P.2d 889 (1938); Kuter v. Bank, 96 Kan. 485, 488, 152 Pac. 662 (1915). Liquidated damages provisions, if otherwise valid, are generally enforceable in employment contracts for the employee’s wrongful termination of employment. 53 Am. Jur. 2d, Master & Servant § 48, p. 122; Annot, 61 A.L.R.2d 1008, 1019. The use of the term “penalty” throughout the provision does not, as a matter of law, defeat the trial court’s finding that the provision was, in fact, a liquidated damages clause. The Supreme Court in Beck v. Megli, 153 Kan. at 726, explains: “In determining whether contractual agreements are to be treated as penalties or as liquidated damages, courts must look behind the words used by the contracting parties to the facts and the nature of the transaction. The use of the terms ‘penalty’ or ‘liquidated damages’ in the instrument is of evidentiary value only. It is given weight and is ordinarily accepted as controlling unless the facts and circumstances impel a contrary holding. [Citations omitted.] The instrument must be considered as a whole, and the situation of the parties, the nature of the subject matter and the circumstances surrounding its execution taken into account. There are two considerations which are given special weight in support of a holding that a contractual provision is for liquidated damages rather than a penalty — the first is that the amount stipulated is conscionable, that it is reasonable in view of the value of the subject matter of the contract and of the probable or presumptive loss in case of breach; and the second is that the nature of the transaction is such that the amount of actual damage resulting from default would not be easily and readily determinable.” See also Railroad Co. v. Gaba, 78 Kan. 432, Syl. ¶ 4; Condon v. Kemper, 47 Kan. 126, 129, 27 Pac. 829 (1891). As noted, the characteristic of a penalty is that it is designed to secure performance rather than to estimate reasonable damages in case of breach. The present case is complicated by the fact that the provision in question states that its purpose is to “make teachers . . . responsible for the compliance to their contracts.” However, the stated purpose of the provision is not necessarily controlling where the stipulated sum is reasonable and the amount of actual damages for breach would be difficult to determine. Here the evidence established that the provision in question was drafted by nonlawyer negotiators who were not trained in the intricacies of the law. It was further undisputed that such provisions are frequently included in employment contracts negotiated between school boards and teachers organizations. The affidavit of C. Gordon Nelson, Director of Research for the Kansas Association of School Boards, states that, for the school year 1978-79, 39 school districts had contracts containing some form of liquidated damages provision applicable on release of a teacher from his contractual obligations. The damages provided in those contracts are comparable in amount to that provided for in the contract presently before us for consideration. Generally, a contract provision will be considered a penalty where there is no attempt to calculate the amount of actual damages that might be sustained in case of breach. Gregory v. Nelson, 147 Kan. at 685. An indication of this lack of calculation is deemed present when the amount of stipulated damages is the same for a total or partial breach, or for breach of minor or major contract provisions. Kansas City v. Industrial Gas Co., 138 Kan. 755, 762, 28 P.2d 968 (1934). In the present case, the contract provision required payment of a greater sum as the school year commenced and progressed. There was trial testimony that it became increasingly difficult, after the April 15 contract deadline, to procure qualified teachers. The terms of the contract, when coupled with the evidence, suggest that there was indeed an attempt to calculate the amount of damages that might result from the teacher’s breach. The stated purpose of the provision to secure contract performance is not, in itself, sufficient to render it an unenforceable penalty. It should also be noted that the school district has a statutory inducement for teacher performance of employment contracts. K.S.A. 72-5412 provides for the suspension of the teacher’s certificate where he accepts employment with another school or school board without having first been released from a prior contract. See Bowbells Pub. Sch. Dist. No. 14 v. Walker, 231 N.W.2d 173, 177 (N.D. 1975) (statutory suspension for breach weakens argument that provision was to insure performance). Defendant’s claim that the provision is coercive is based on the waiver provision which allowed discretionary enforcement by plaintiff. Under the law of this state, a valid liquidated damages clause cannot be the result of compulsion or an adhesion contract. White Lakes Shopping Center, Inc., v. Jefferson Standard Life Ins. Co., 208 Kan. at 126. There is no requirement that enforcement of a liquidated damages provision be mandatory. Moreover, in accordance with the trial court’s finding of impartial enforcement, there was testimony that the provision was enforced in all cases where the teacher voluntarily broke the contract. Enforcement was waived where the teacher was forced to resign for health reasons or other circumstances beyond his control. The waiver provision in paragraph four does not require a finding that the provision was a penalty rather than a liquidated damages clause. A valid liquidated damages clause must be a reasonable calculation of damages difficult to establish with certainty. Where actual damages are readily ascertainable, a provision purporting to be a liquidated damages clause will be construed as a penalty, with the injured party recovering only those damages established by proof. White Lakes Shopping Center, Inc., v. Jefferson Standard Life Ins. Co., 208 Kan. at 125-27; Gregory v. Nelson, 147 Kan. at 683-684; Condon v. Kemper, 47 Kan. at 130. At trial, the district’s school superintendent, Dr. Douglas Christensen, testified to the actual expenses incurred in advertising for defendant’s vacancy. He testified that substantial man-hours were spent recruiting, interviewing, and hiring. Teachers were shuffled as a result of defendant’s resignation when the district was unable to find an exact replacement. He testified that the time spent interviewing and hiring took time away from other activities, and that budget and curriculum preparation suffered as a result. He also testified that it was extremely difficult to find qualified replacements at such a late date, particularly for a teacher-coach position such as that vacated by defendant. The uncertainty of damages resulting from a teacher’s breach of an employment contract was recognized in Bowbells Pub. Sch. Dist. No. 14 v. Walker, 231 N.W.2d at 176. Upholding a liquidated damages provision in a teacher’s employment contract, the court stressed the injury to the public and the inability to accurately assess damages for that injury: “[W]e cannot ignore the interruption to the school system and the resultant debilitating effect such interruption has upon the learning process of students in the school system. The possibility that the replacement teacher who was obtained may be less experienced or less qualified and, thus, a less effective instructor must also be considered in the assessment of damages. It would not be possible at the time of contracting to foresee all these elements of damage that may occur. Even if known, it would be extremely difficult to evaluate these damages on a monetary basis. These losses to the public are no less the proper subject of a liquidated- damage provision than are the losses sustained by the public in delay-of-performance situations. In either case, the damage to the public is real, although most difficult to evaluate. Such damages are not legally compensable but constitute a public injury which the school district was entitled to consider.” Kansas has recognized that the protection of the public interest is a proper consideration in determining the validity of a liquidated damages provision. See, for example, Kansas City v. Industrial Gas Co., 138 Kan. at 763. The legislature has recognized the great public interest in teachers employment contracts by the statutes enacted to regulate the professional negotiations of teachers contracts. (K.S.A. 72-5410 et seq.). In this state, teachers are recognized as true professionals, engaged in an important public service. Professional agreements, negotiated in accordance with statutory procedures, should be enforced, if reasonably possible to do so. Here, the school district suffered real but unascertainable damages. There was no challenge to the finding that the amount of damages stipulated was reasonable and not excessive. The requirements of a valid liquidated damages clause — that the sum be reasonable and the actual damages be difficult to ascertain — have been met by the provision in question. The district court’s judgment that the provision constituted an enforceable liquidated damages clause is affirmed.	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McFarland, J.: This is an action by an insurance carrier against its injured insured seeking reimbursement of personal injury protection (PIP) benefits paid to the insured, said insured having settled her claim with the third-party tort-feasor. The trial court held in favor of the insured and the insurance carrier appeals. The facts herein are as follows. On August 12, 1975, defendant Hessie Nelson, while operating a 1969 Ford Galaxie automobile, was injured in a collision with an automobile owned by the Siemens Corporation and being operated by its employee, Jason D. Patrick. The Nelson vehicle was owned by defendant Richard Nelson and insured by him with plaintiff Hawkeye Security Insurance Company. At the time of the collision defendant Hessie Nelson, wife of defendant Richard Nelson, was a permissive user of the vehicle and hence an insured under the provisions of the policy. In November, 1976, defendant Hessie Nelson (henceforth referred to as defendant) filed a claim with Hawkeye for PIP benefits. Hawkeye subsequently made PIP benefit payments in the amount of $1,231.90. In late February, 1977, defendant settled with the third party and its insurance carrier for $2,500. On July 6, 1977, Hawkeye put the third-party insurance carrier on notice that PIP benefits had been paid. The present action is by Hawkeye against its insured for reimbursement of PIP benefits. Neither the third party nor its insurance carrier is a party to this action. The trial court entered judgment in favor of defendant on the rationale that Hawkeye’s failure to give notice to the third-party insurance carrier until after the settlement precluded Hawk-eye’s recovery against the defendant injured insured. The sole issue on appeal is the propriety of that determination. The settlement herein was made prior to July 1, 1977, the effective date of the present statute, K.S.A. 1980 Supp. 40-3113a. Hence, the statute in effect at the time of the settlement must be applied. See Nitchals v. Williams, 225 Kan. 285, 590 P.2d 582 (1979). The applicable statute then is K.S.A. 1976 Supp. 40-3113, which is reproduced in relevant part as follows: “An insurer’s or self-insurer’s rights of reimbursement and indemnity shall be as follows: “(a) No subtraction from personal injury protection benefits shall be made because of the value of a claim in tort based on the same bodily injury, but after recovery of damages by judgment, settlement or otherwise is realized upon any such tort claim, a subtraction shall be made to the extent of the recovery, less reasonable attorney’s fees and other reasonable expenses incurred in effecting the recovery, but only to the extent that the injured person has recovered damages from the tortfeasor or his insurer or insurers, which are duplicative of personal injury protection benefits payable. If personal injury protection benefits have already been received, the claimant shall repay to the insurer or insurers out of any such recovery a sum equal to the benefits received, but no more than the recovery, exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery, but only to the extent that the injured person has recovered said damages from the tortfeasor or his insurer or insurers which are duplicative of personal injury protection benefits received. The injured person’s insurer or insurers shall have a lien on such recovery to this extent. No recovery of damages by an injured person or his estate shall be subtracted by an insurer in calculating benefits due after such person’s death resulting from an injury for which the benefits were payable, and no recovery under K.S.A. 1973 Supp. 60-1903 shall be subtracted in calculating funeral benefits. “(b) An insurer having a right of reimbursement under this section, if suffering loss from inability to collect such reimbursement out of a payment received by an injured person upon a tort claim, is entitled to indemnity from one who, with notice of the insurer’s interest, made such payment to the injured person without making the injured person and the insurer joint payees, as their interests may appear, or without obtaining the insurer’s consent to a different method of payment.” Section (a) of the above statute concerns an insurer’s right to reimbursement from its insured. Section (b) concerns an insurer’s right to indemnity from a third party making payment to the injured insured. If the third party makes payment solely to the injured insured after having been notified of the insurer’s interest, then the third party must indemnify the insurer. This results in the third party paying twice on the portion of the claim for which PIP benefits were paid by the injured person’s insurance carrier. In the case before us, section (b) of the statute is clearly not applicable. Hawkeye is not seeking indemnity from the third party paying the settlement. Accordingly, the failure of Hawkeye to notify the third party of its interest prior to settlement is wholly irrelevant to the action herein. Notice to the third party is not a condition precedent to an insurer’s reimbursement from its injured insured under section (a) of the statute. We conclude the trial court erred in holding that Hawkeye’s failure to notify the third party precluded Hawkeye’s recovery from the defendant injured insured. The judgment is hereby reversed and remanded with directions to the trial court to determine how much of the settlement received by defendant was duplicative of PIP benefits paid to her by Hawkeye and enter judgment therefor in favor of Hawkeye, all in accordance with the rules set forth in Easom v. Farmers Insurance Co., 221 Kan. 415, 560 P.2d 117 (1977).	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Parks, J.: This is an appeal from an order dissolving a writ of habeas corpus. K.S.A. 60-1501. On July 9, 1979, petitioner Herbert Henderson was involved in an automobile accident which resulted in a fatality. The petitioner was arrested on a warrant and charged with involuntary manslaughter and leaving the scene of an accident. The charging document was titled, “Information,” and was accompanied by an affidavit setting out the facts of the accident. The information stated in part: “[T]he above named defendant HERBERT B. HENDERSON . . . did then and there wilfully, wrongfully, unlawfully, feloniously and unintentionally kill a human being, to-wit: Mark A. Leasure, age 6, without malice while in the commission of an unlawful act, to-wit: operating a motor vehicle in a reckless manner, contrary to ordinance number 3263 of the City of Independence, Montgomery County, Kansas; all contrary to K.S.A. 21-3404 . . . .” The petitioner filed a writ of habeas corpus and the matter was set for hearing. At the hearing, the court held that the petitioner should be released on bond and that the writ should be dissolved as unnecessary because Henderson was no longer restrained. The trial court heard no evidence and made no findings concerning the merits of petitioner’s writ. Although a defendant is apparently at liberty when on bond, he may still be considered in custody for the purposes of obtain ing a writ of habeas corpus. Hensley v. Municipal Court, 411 U.S. 345, 36 L.Ed.2d 294, 93 S.Ct. 1571 (1973). See also In re Berkowitz, 3 Kan. App. 2d 726, 727, n. 1, 602 P.2d 99 (1979), and cases cited therein. This is true because even while on bond, a defendant is subject to supervision of the court and to conditions which restrain his liberty. Therefore, we hold that the trial court erroneously dissolved the petitioner’s writ as moot without considering the merits of his argument. We now turn to petitioner’s argument that his restraint is illegal because (1) the prosecution of a felony was improperly commenced with the filing of an information rather than a complaint; and (2) the information is defective because it fails to state an offense against the state of Kansas. K.S.A. 1980 Supp. 22-2301(1) states that a prosecution shall be commenced by filing a complaint. The definitions of complaint and information are set out in K.S.A. 1980 Supp. 22-2202 as follows: “ ‘Complaint’ means a written statement under oath of the essential facts constituting a crime, except that a notice to appear issued by a law enforcement officer pursuant to and in compliance with K.S.A. 1978 Supp. 8-2106 shall be deemed a valid complaint if it is signed by said law enforcement officer. “ ‘Information’ means a verified written statement signed by a county attorney or other authorized representative of the state of Kansas presented to a court, which charges the commission of a crime. An information verified upon information and belief by the county attorney or other authorized representative of the state of Kansas shall be sufficient.” The purpose of both documents is to advise the accused and the court of the charges alleged to have been committed and the essential facts constituting the crime or crimes charged. State v. Carpenter, 228 Kan. 115, 120, 612 P.2d 163 (1980). The principal difference between the two documents is the stage in the proceedings at which they are filed. The complaint is filed to initiate the prosecution while the information is the formal document used to charge the defendant once he is bound over for trial. The complaint may also provide the factual basis needed for a magistrate to find the probable cause necessary to justify the issuance of an arrest warrant. K.S.A. 1980 Supp. 22-2302(1). However, this factual basis may be supplied by a separate affidavit, affidavits filed with the complaint, or other evidence. Wilbanks v. State, 224 Kan. 66, 76, 579 P.2d 132 (1978). Therefore, the actual contents of the complaint may be identical to that of the subsequently filed information. The document filed in this case to initiate prosecution of defendant was titled “Information,” but it fulfilled the functions of a complaint. Defendant was fully informed of the charges against him and the charging document and affidavit clearly disclosed a factual basis for the belief that defendant committed the offenses. We conclude that it would be better practice and avoid confusion if prosecutors would conform to the statutory titles given the two different charging documents. However, the failure of the State to properly name the document used to commence prosecution in this case was not a fatal defect since the substance of that document carried out the purposes of a complaint. Of further concern is petitioner’s argument that the information and affidavit failed to state a public offense and therefore failed to provide the court with jurisdiction over him. K.S.A. 1980 Supp. 21-3404 states: “Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state which statute or ordinance is enacted for the protection of human life or safety. “Involuntary manslaughter is a class E felony.” The information in this case does not specifically charge wanton commission of an unlawful act, but it does state that the unlawful act committed was reckless driving. There is no question that a charge of involuntary manslaughter must allege something more then mere negligence; it must charge wanton or gross negligence. State v. Makin, 223 Kan. 743, 747, 576 P.2d 666 (1978). However, K.S.A. 21-3201(3) provides that when “wantonness” is used in the Kansas Criminal Code, it includes the terms “recklessness” and “gross negligence.” Therefore, that portion of Count I of the information which reads “operating a motor vehicle in a reckless manner” [emphasis supplied] necessarily means that the unlawful act was wanton. While the charge is not artfully phrased, we conclude that it charges a crime and gives the trial court jurisdiction over the defendant. We conclude on the merits that the writ should be dissolved. Judgment is affirmed.	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McLaughlin, J.: This is an appeal by plaintiff City of Strong from the trial court’s order dismissing the action without prejudice upon defendant’s motion at the close of plaintiff’s case. The case involved a dispute as to water rates. Plaintiff is a municipal corporation and defendant is a Rural Water District. On October 22, 1973, the parties executed a water purchase contract providing for the sale of water by plaintiff to defendant at the rate of $ .60 per 1,000 gallons subject to a monthly minimum of 200,000 gallons. The contract further provided: “5. (Modification of Contract) That the provisions of this contract pertaining to the schedule of rates to be paid by the Purchaser for water delivered are subject to modification at the end of every 2^ year period. Any increase or decrease in rates shall be based on a demonstrable increase or decrease in the costs of performance hereunder, but such costs shall not include increased capitalization of the Seller’s system. Other provisions of this contract may be modified or altered by mutual agreement.” The rate charged to city consumers on October 23, 1973, was a minimum charge of $2.50 for the first 2,000 gallons, $ .50 per 1,000 gallons for the next 24,000 gallons, and $ .40 per 1,000 gallons for the next 450,000 gallons. It appears that the City did not begin supplying water to defendant until sometime after July, 1978. Subsequent to the execution of the contract, plaintiff made improvements in its water system. To finance those improvements, plaintiff issued revenue bonds in the amount of $310,000. The interest paid on these bonds is charged as an expense of the water department. On or about April 10, 1979, plaintiff increased the rate for city water consumers to a minimum monthly charge of $5.00 for the first 2,000 gallons and $2.00 per 1,000 gallons thereafter. Plaintiff subsequently informed defendant that the rate under the water purchase contract would be increased to $2.00 per 1,000 gallons with a 200,000 gallon monthly minimum effective May 1, 1979. Defendant refused to pay the new rate on the ground that plaintiff had not demonstrated increased costs of performance exclusive of capitalization as required by the contract. Subsequent negotiations were unproductive and plaintiff initiated this action seeking to avoid the water purchase contract and enforce the new water rate. The trial court held that the contract was not void or voidable, that there was no evidence that plaintiff had submitted information regarding increased costs of performance to the defendant as required by the contract, and that no evidence had been submitted to the court that would enable the court to determine costs of performance. The case was dismissed without prejudice on defendant’s motion at the close of plaintiff’s case and plaintiff has appealed. Plaintiff’s first point on appeal is that the trial court erred by failing to find that the water purchase contract was ultra vires per se. Plaintiff contends that the rate established in the contract was so unreasonable as to amount to a gift of city property. Since the City has no authority to make gifts of city property, the contract would therefore be ultra vires. Plaintiff’s authority to sell water is found in K.S.A. 12-808: “Subject to the provisions of K.S.A. 66-104 and 66-131, and amendments thereto, any city operating waterworks, fuel, power, or lighting plant may sell and dispose of water, fuel, power or light to any person within or without said city.” Setting the price or rate for the sale of water is a legislative or administrative, not a judicial, function. Shawnee Hills Mobile Homes, Inc. v. Rural Water District, 217 Kan. 421, Syl. ¶ 5, 537 P.2d 210 (1975). Courts have no supervisory power over legislative functions of a municipality and cannot substitute their judgment for that of the governing body. “Courts can only interfere to curb action which is ultra vires because of some constitutional impediment, or lack of valid legislative authority, or unlawful acts under a valid statute, or because action under a valid statute is so arbitrary, capricious, unreasonable and subversive of private rights as to indicate a clear abuse rather than a bona fide exercise of power.” Schulenberg v. City of Reading, 196 Kan. 43, 52, 410 P.2d 324 (1966). “The authority to sell municipal property carries with it the power to decide upon the terms of the sale, and since this power is discretionary, a sale made under it cannot be annulled on the ground that the'bargain was an improvident one. But the power to sell does not include the power to make a gift of municipal property. Nor, ordinarily, can a municipal corporation lawfully sell its property for a grossly inadequate price, since such a transaction is in effect a gift of public funds.” 56 Am. Jur. 2d, Municipal Corporations § 552, p. 606. At trial, the City introduced evidence indicating that in 1973 it produced a total of 19,210,000 gallons of water for a cost of $31,277.45, excluding meter refunds, or $1.62/1,000 gallons. The relevant issue, therefore, is whether, in view of the total cost of production of $1.62/1,000 gallons, the contract rate of $ .60/1,000 gallons, subject to biannual adjustment, is so arbitrary, capricious and unreasonable as to indicate a clear abuse of the City’s rate-making authority. We find that this question must be answered in the negative. In making this determination we note two facts which are significant. First, with the exception of the monthly minimum charge, the rate set by the contract is greater than the rate at which plaintiff sold water to city consumers at the time the contract was executed, and second, the contract provides for rate adjustments every two years. Plaintiff is not locked into the original rate for the entire term of the contract. It appears that the primary reason for the rate increase to city consumers in April, 1979, was the increased water department expense due to the revenue bonds. Plaintiff’s subsequent attempt to charge the same rate to defendant violated the terms of the water purchase contract. Rather than negotiate a new rate under the terms of the contract, plaintiff attempted to avoid the contract entirely. While it may be that the decision to exclude plaintiff’s capitalization costs as a factor in future rate adjustments was an improvident one, after careful examination of the record we cannot say that the water purchase contract, when executed, was so arbitrary, capricious and unreasonable as to indicate a clear abuse of plaintiff’s rate-making authority. Plaintiff’s second point on appeal is that its rate-making authority is governed by K.S.A. 12-856 et seq. Since K.S.A. 12-860 requires the establishment of rates sufficient to pay the cost of operation, repairs, maintenance, extension and enlargement, improvements, and new construction and bonds issued therefor, plaintiff contends that the water purchase contract prevents the establishment of such rates and is therefore ultra vires. K.S.A. 12-857 limits the application of K.S.A. 12-856 et seq. to the operation of combined waterworks and sewage disposal systems. It is clear from the record that plaintiff does not operate such a combined system, and therefore its rate-making authority is not governed by K.S.A. 12-860. Plaintiff’s final point on appeal is that if the water purchase contract is ultra vires and therefore void, defendant should have the burden of proving that the new rate is unreasonable. In light of our finding on the ultra vires issue, plaintiff’s final contention is moot. Affirmed.	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Spencer, J.: This is an appeal from judgment of the trial court which sustained the findings of the examiner and the workmen’s compensation director in denying coverage under the Workmen’s Compensation Act. Claimant’s brief contains six issues, only one of which was considered by the examiner, director and district court. That issue is whether decedent was an independent contractor, and thus not covered by the act, or a “statutory employee” pursuant to K.S.A. 1980 Supp. 44-503. Accordingly, only this issue will be considered on appeal. Howard L. Robinson was the president as well as owner-operator of Maize Flying Service, Inc. Maize was a small operation, and Mr. Robinson from time to time contracted with other companies to ferry planes. When he did so, any money received went to Maize. In February, 1978, Mr. Robinson contracted with Flynn’s Ferry Service, Inc., to deliver a Cessna 185 from Wichita to Vancouver, British Columbia, Canada. On the morning of February 23, 1978, he left Wichita and flew to Hays where he picked up his mother (the claimant herein). The two then flew to Hygiene, Colorado, where Mrs. Robinson was to visit a daughter who lived there. The carrying of passengers violated the manifest for this trip. Mr. Robinson then continued on toward Vancouver. Near Yakima, Washington, he encountered bad weather and the plane crashed. Mr. Robinson was killed. Thomas Flynn, owner-operator of Flynn’s Ferry Service, Inc., with whom Mr. Robinson had contracted, stated that the plane was to be delivered to West Coast Air Services, a Cessna distributor, in Vancouver. He had received a telex from Cessna headquarters in Winnipeg requesting a bid to ferry the plane. He made a bid and got the job. Since all of his pilots were busy and Robinson had been asking him for work, he orally contracted with Robinson to ferry the plane. In doing so, it was his understanding that he was contracting with Maize Flying Service, Inc. (As such, Mr. Robinson did not have to make the flight personally. Mr. Flynn thought that Robinson was the only pilot Maize had who was qualified, although there might have been another.) Mr. Flynn stated that 40 to 50% of his business was the ferrying of planes. 96% of this was done by pilots he employed. Bids to his customers were based on a per mile rate, cost of return fare, fuel, and insurance if desired. Payment to his own pilots was based on 60 per mile, a per diem (usually $30), cost of fuel, and return fare. Contract pilots, such as Mr. Robinson, took the job for the total bid less 10% which Flynn took off the top. At the time of this accident, Flynn had no workmen’s compensation coverage. Karen Sissom, Mr. Robinson’s fiance and bookkeeper for Maize, was also a pilot and had flown some contract jobs. She stated that a contract pilot “would get the packet and the keys and then it was up to him when he departed and what route he flew and he was truly pilot in command. There was no control.” Mr. Robinson’s mother filed a claim for workmen’s compensation benefits against Flynn’s Ferry Service, Inc. Based on the evidence set forth, the examiner denied the claim, finding that Mr. Robinson was an independent contractor rather than an employee or statutory employee. The director affirmed, as did the trial court. The trial court stated, as its combined findings of fact and conclusions of law: “1. That the issue to be decided is whether or not the decedent, Howard L. Robinson, was a statutory employee pursuant to K.S.A. (1980 Supp.) 44-503. “2. That there is no dispute as to the facts in regard to this case and the court specifically finds that Maize Flying Service, Inc. contracted with Flynn’s Ferry Service, Inc. relative to the flight in question and Howard L. Robinson was an employee of Maize Flying Service, Inc. and the only issue presented to this court is the application of the law to the facts and the court concludes that Howard L. Robinson was an independent contractor and not a statutory employee of the respondent as set forth in K.S.A. (1980 Supp.) 44-503.” Our scope of review is limited to questions of law. The question of whether a district court’s judgment is supported by substantial evidence is one of law, and if, when viewed in the light most favorable to the party prevailing below, there is substantial evidence to support the factual findings of the district court, this court is bound by those findings and has no power to weigh the evidence or to reverse the final order of that court. Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981). It is important to put the legal arguments into context. It is basic that to be entitled to compensation under the Workmen’s Compensation Act, the claimant, or the person through whom the claim is made, must be an “employee” of an “employer.” K.S.A. 1980 Supp. 44-501; K.S.A. 1980 Supp. 44-508(b). Thus, the question has often arisen whether the claimant is an independent contractor rather than an employee. If so, the act does not apply. See, e.g., Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416 P.2d 771 (1966). Claimant does not here contend that Mr. Robinson was an employee under the tests traditionally applied to determine that issue. Instead, she contends he was an employee by operation of K.S.A. 1980 Supp. 44-503(a), which provides in part: “(a) Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under the workmen’s compensation act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workmen’s compensation act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.” (Emphasis supplied.) Under this section coverage is extended to employees who would not ordinarily be considered within the common law definition of an employee. It is therefore often referred to as creating “statutory employees.” Durnil v. Grant, 187 Kan. 327, 356 P.2d 872 (1960). Despite the fact the record demonstrates the applicability of K.S.A. 1980 Supp. 44-503 was presented to the examiner, director and district court, respondent does not address that issue. Instead, it states: “The claimant urges the Court to apply the Loaned Servant Rule to find that the pilot was in the position of an employee of Flynn’s Ferry Service. The test of servitude must be met before the deceased can be transferred from the category of an independent contractor, to that of an employee.” Contrary to respondent’s statement, there is no issue here of the loaned servant doctrine. It has been recognized there is a distinction between statutory employees and special (or loaned) employees. A statutory employee is such by statute and in derogation of common law. A special or loaned employee is a creature of the common law and becomes a regular employee under the Workmen’s Compensation Act without the need of a statutory provision. Bendure v. Great Lakes Pipe Line Co., 199 Kan. 696, 701, 433 P.2d 558 (1967). Thus, where the question is whether the claimant is a statutory employee “the test of servitude” applied under the common law becomes irrelevant. The matter is governed by the terms of the statute. The bulk of respondent’s brief is therefore immaterial to the issue of this case. It has been stated that the principal purpose of K.S.A. 1980 Supp. 44-503(a) is: “ ‘[T]o give to employees of a contractor who has undertaken to do work which is a part of the trade or business of the principal, such remedy against the principal as would have been available if they had been employed directly by the principal, and to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.’ ” Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, 315, 564 P.2d 521 (1977), citing Hoffman v. Cudahy Packing Co., 161 Kan. 345, Syl. ¶ 4; 167 P.2d 613 (1946). The fundamental premise upon which liability is predicated under 44-503(a) is the existence of a contract between two employers. Ellis v. Fairchild, 221 Kan. 702, Syl. ¶ 3, 562 P.2d 75 (1977). Two tests are applied to determine whether work covered by a subcontract is a part of the principal contractor’s trade or business. They are: “(1) Is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) Is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal? If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s ‘trade or business,’ and the injured employee’s sole remedy against the principal is under the Workmen’s Compensation Act.” Ellis v. Fairchild, 221 Kan. 702, Syl. ¶ 2. It is not required that the work being performed by the injured workman be the primary business of the general contractor. It is sufficient if the work being performed is some integral part of the general contractor’s trade or business or is work which the general contractor has contracted to perform for another. Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, Syl. ¶ 2. Applying the statute and these tests to this case, we find: First, the principal contractor (Flynn’s Ferry Service, Inc.), contracted to deliver a Cessna 185 to Vancouver, British Columbia. Mr. Flynn testified that 40 to 50% of his business was the ferrying of airplanes and that 96% of this was done by his own employees. Thus, both of the tests for determining whether the work was a part of Flynn’s “trade or business” have been met. Either would have been sufficient. Second, Flynn’s contracted with Maize Flying Service, Inc. (the contractor), for execution “of the work undertaken by the principal.” Again, Mr. Flynn testified that he contracted with Maize, not Mr. Robinson as an individual. Third, Robinson was a “workman employed in the execution of the work.” It is of note that the trial court specifically found Robinson was an employee of Maize Flying Service, Inc. The terms of K.S.A. 1980 Supp. 44-503(a) clearly apply and Robinson should have been found a statutory employee of Flynn’s. The examiner, director and trial court did not address the question of whether 44-503(a) applied. This was apparently because they considered the conclusion that Robinson was an independent contractor determinative. Such would be the case if the evidence established that Robinson as an individual had contracted with Flynn’s and the question was his employment status in relation to Flynn’s. Under such circumstances, a finding that Robinson was an independent contractor could readily be affirmed. However, the undisputed testimony, including that of Mr. Flynn, and the trial court’s own findings of fact establish that Flynn’s contracted with Maize Flying Service, Inc., and that Robinson was an employee of Maize. It may be conceded that Maize was an independent contractor in relation to Flynn’s, with Flynn’s having no right of control over the details of ferrying the plane to Vancouver. This does not, however, preclude Robinson from being a “statutory employee” of Flynn’s. Our Supreme Court has consistently held that employees of independent contractors performing work which is part of the principal’s “trade or business” are statutory employees of the principal. See, e.g., Woods v. Cessna Aircraft Co., 220 Kan. 479, 553 P.2d 900 (1976); Anderson v. Beardmore, 210 Kan. 343, 502 P.2d 799 (1972); Durnil v. Grant, 187 Kan. 327; Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P.2d 239 (1951); Swift v. Kelso Feed Co., 161 Kan. 383, 168 P.2d 512 (1946); Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P.2d 701 (1945); Lehman v. Grace Oil Co., 151 Kan. 145, 98 P.2d 430 (1940); Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac. 219 (1927). In Durnil v. Grant, 187 Kan. 327, for example, an employee of an independent contractor hired by a wholesale fruit and vegetable distributor to deliver its product was found to be a statutory employee of the wholesaler. The court stated that the fact the wholesaler had “no particular control over the manner of operating the route itself is immaterial, since the function of a contractor is to perform work according to his own methods.” 187 Kan. at 336. Thus, respondent’s arguments and analysis of whether Robinson was an independent contractor in relation to Flynn’s is immaterial to this case. Finally, respondent makes much of the fact that Robinson was in violation of his flight manifest by taking a passenger for a portion of the trip and that the “deviation” in doing so was a fatal mistake in this case. “Deviation” is completely immaterial to the issue on appeal and the issue decided below. By holding that Robinson was a “statutory employee” all that is done at this stage is to establish the employment relation for workmen’s compensation purposes between Robinson and Flynn’s. All other matters relating to whether compensation should be awarded and in what amount must be determined on remand. Among those matters is whether the “deviation” in this case was such as to work a deprivation of compensation otherwise available. See 99 C.J.S., Workmen’s Compensation § 222, p. 745, for the general rule that an injury sustained by an employee during a temporary deviation or departure from his employer’s business is not compensable. Of course, here it would appear that even if there was a deviation, there had been a return to the employer’s business at the time of the accident. See 99 C.J.S., Workmen’s Compensation § 222, p. 748. In any event, such matters are not material to the question presented. We conclude that Howard L. Robinson was a statutory employee of respondent under the provisions of K.S.A. 1980 Supp. 44-503(a). Accordingly, the judgment of the trial court is reversed and this cause is remanded for further proceedings.	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Spencer, J.: On May 30, 1980, Southwestern Bell Telephone Company (SWB) filed its application with the Kansas Corporation Commission (Commission) for a general rate increase. In preparation of the case, SWB and the Commission’s staff entered into an agreement for the production of documents on discovery. Pursuant to this agreement, certain documents SWB considered confidential and proprietary (trade secrets) were made available to the staff. At a preliminary conference on November 3, 1980, staff gave notice, pursuant to the agreement, of intent to use certain of the documents during public hearings before the Commission. On November 10, 1980, SWB, also pursuant to the agreement, filed with the Commission a motion for a protective order seeking to maintain the documents’ claimed confidentiality. Public hearings commenced November 17, 1980, at which time SWB renewed its motion for a protective order. The documents in question were deposition exhibits in a rate proceeding in the state of Texas. They involved what is referred to as the “installed base migration strategy,” analyzing among other things a potential for “migrating” SWB customers to more current competitive telecommunications equipment. According to the evidence of SWB as presented through the testimony of its witness Thomas Carney, the documents convey several types of information: First, they reveal long-range proposed pricing strategies and underlying data for competitive products and services. Second, they outline existing inventories and specific products in certain competitive product lines and forecast product movement within those lines. Third, they include projected financial analyses of the impact proposed marketing strategies would have on Southwestern Bell’s revenues, cash flow and net income. Fourth, they disclose information about availability dates, prices and characteristics of future unannounced products to be offered. Fifth, they contain undisclosed financial plans and proposed budgets of Southwestern Bell. Sixth, they cover various AT&T and Southwestern Bell analyses of the impact of various specific competitors entering the market for certain products and services. The documents have not been disclosed to the general public and, within the SWB system, they are provided only to those with a “need to know.” Although they were made available to the Commission in this case, they were not used in filing the rate case. On November 18, 1980, the KCC orally ruled: “Chairman Loux: The Commission has reviewed the transcript, reviewed the documents that were considered proprietary by the Applicant, and our decision is that at this point the Company is still a regulated company. It involves products that are still regulated by this Commission by statute. It involves pricing and that they are relevant and that they are not proprietary .... “Mr. Dimmitt: Mr. Chairman, in regard to the Commission’s ruling, I wonder if we might as an accommodation to the Applicant ask for a stay of that ruling for a reasonable period of time to permit us the opportunity to assess alternatives including possible judicial intervention, and I’m talking about maybe two or three hours, something like that if that’s— “Chairman Loux: Yes.” That same day SWB filed an action for injunctive relief in the District Court of Shawnee County. That court issued a temporary restraining order at SWB’s request. On December 11, 1980, the district court dismissed SWB’s suit and vacated the temporary restraining order effective December 18, 1980, finding in the process that the Court of Appeals had exclusive jurisdiction. On December 15, 1980, SWB applied to the Commission for a rehearing of the November 18th oral ruling. Prior to the date set for expiration of the district court’s temporary restraining order, the Commission stayed its order as to disclosure until a decision on the rehearing. Rehearing was granted, and on December 23, 1980, the Commission issued a written order, stating in relevant part: “[T]he Commission has reconsidered the documents’ relevancy to this proceeding. Based on that review we find that certain documents have insufficient evidentiary value and relevancy with regard to the issues raised in these proceed ings to warrant their introduction into evidence. Although we believe that the ‘migration strategy’ in general is relevant to this case, specific figures and data which appear to relate solely to its implementation in other jurisdictions adds little to the evidence contained in other documents. . . . [Specific documents indicated as immaterial.] “7. As to the claimed confidential nature of the remaining documents, the Commission concludes that they are not confidential, with one exception which will be discussed subsequently. “The documents in question all relate to a marketing and pricing strategy developed or being developed by AT&T, which.is referred to as the Installed Base Migration Strategy (IBMS). Some of the parties in this matter contend that this strategy has substantial implications for the regulatory and rate making process which should be addressed by this Commission. Staff argues that whatever the decision of the Commission with regard to the strategy, Kansas law requires public access to the evidence upon which the decision is based. SWB on the other hand argues that the evidence has been made available to the parties and Commission for consideration so that a decision can be made but that public disclosure of the information would potentially cause damage to SWB. This damage would potentially result because SWB’s competitors could use the data and information in the documents to their own advantage. “We agree with staff that K.S.A. 66-[106] reflects a legislative mandate to allow public access to not only the proceedings of this Commission but also the evidence introduced at those hearings. Further, the right to review the evidence does not terminate with the end of the hearings. We believe that the public is entitled to compare our decision setting the utility rates they will pay with the underlying evidence upon which the decision is based. Although SWB argues that the Kansas [open] meetings law, K.S.A. 1979 Supp. 75-4319(b)(4), and open records law, K.S.A. 1979 Supp. 45-201(a), would permit the restrictions proposed, we conclude that K.S.A. 66-106 is a more specific statute governing the activities of this Commission. It should also be noted that this Commission is required to make specific findings of fact and conclusions of law in its orders. If the documents in question were held to be confidential, it is clear that the Commission could not comply with its legal obligation to make specific findings of material facts regarding the concealed evidence. “SWB in its arguments appears to use the terms ‘trade secrets’ and ‘proprietary information’ synonymously. Staff, on the other hand, apparently contends that they are not interchangeable terms and that the documents in question are not of a trade secret nature to which courts and legislatures have traditionally afforded protection. In reaching our conclusion the Commission does not believe it necessary to define ‘proprietary information,’ although that phrase would appear to encompass more than the term ‘trade secrets.’ What is necessary in the instant proceeding is an analysis of the nature of the documents and the claim for confidential treatment as contrasted with the public’s interest in access to the evidence which justifies the utility rates ultimately borne by members of the public. “Both staff and SWB have listed six factors which are used to evaluate the nature of information which is involved: “(1) the extent to which the information is known outside the business, (2) the extent to which it is known to those inside the business, i.e., by the employee, (3) the precautions taken by the holder of the trade secret to guard the secrecy of the information, (4) the savings effected and the value to the holder in having the information as against competitors, (5) the amount of effort or money expended on obtaining and developing the information, and (6) the amount of time and expense it would take for others to acquire and duplicate the information. Although SWB has presented some evidence and arguments concerning the value of the information to its competitors and the extent of its dissemination, it is unclear how much of the information is actually known by competitors or how much effort would be required to develop such information. Furthermore, we must admit some difficulty in discerning the value of much of this information to competitors in view of SWB’s contention that the documents do not represent an actual plan which has been implemented but rather are forecasts or targets for consideration. This is especially true of the target pricing information since presumably the actual prices will be established by regulatory commissions. Since the regulatory process is, in fact, involved in these matters we conclude that the information in the documents in controversy is not entitled to protection .... 8. “In conclusion, the Commission finds and concludes that evidence tending to show the existence of migration strategy is relevant to these proceedings. This decision is not meant to indicate any final decision on the issues which have been raised concerning IBMS but merely reflects our opinion that the existence of such a strategy could have a bearing on the issues of rate design, depreciation, license fee, and other areas which could ultimately affect the rates to be approved. Since the documents will need to be considered in arriving at the Commission’s ultimate decision, we do not believe that they should be afforded confidential treatment . . . .” The Commission directed that all of the contested exhibits be maintained under seal with the contents not disclosed, “until the Court of Appeals or other appropriate court has had an opportunity to rule on a request for a stay.” On January 6, 1981, SWB filed its application for judicial review and motion for protective order with this court. The case was docketed under No. 52,852. On February 11, 1981, this court stayed the Commission’s disclosure order and directed the contested documents remain under seal pending disposition of the matter on review or other order of this court. Since the Commission’s written order of December 23, 1980, which was mailed December 30, 1980, modified its previous oral ruling, SWB on January 9, 1981, filed with the Commission an application for rehearing pursuant to K.S.A. 66-118b, which was denied January 12, 1981. On February 11, 1981, SWB filed an application for judicial review based on that denial. This case was docketed under No. 52,952, and was consolidated with No. 52,852. Both are now before this court for decision. I. We first consider an argument, advanced by intervenors Boeing et al., that SWB lost its right to judicial review by failing to file an application for rehearing with the Commission within ten days of the oral ruling entered on November 18, 1980. Our Public Utility Act, K.S.A. 66-101 et seq., is comprehensive in scope and makes full provision for procedure before the Commission. Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 233, 440 P.2d 660 (1968). K.S.A. 66-113 provides in part: “All orders and decisions of the corporation commission whereby any rates, joint rates, fares, tolls, charges, rules, regulations, classifications, schedules, practices or acts relating to any service performed or to be performed by such public utility or common carrier for the public are altered, changed, modified, fixed or established, shall be reduced to writing, and . . . served on the public utility . . . affected thereby . . . .” K.S.A. 66-118a provides: “The court of appeals shall have exclusive jurisdiction of proceedings for review of an order or decision of the state corporation commission arising from a rate hearing . . . .” Proceedings for review of other orders or decisions are in a district court having venue. K.S.A. 66-118b provides in part that “[a]ny party being dissatisfied with any order or decision of the state corporation commission” may apply for a rehearing within ten days “of the service of such order or decision,” and that “[n]o cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall make application for a rehearing as herein provided.” K.S.A. 66-118c provides that a party may apply for “a court review of such order or decision” within 30 days of the denial of the rehearing or after decision on the rehearing. K.S.A. 66-118d provides in part that upon application for judicial review, the KCC: “[S]hall forthwith transmit to the clerk of the court in which the application for review has been filed, a certified transcript of all pleadings, applications, proceedings, orders or decisions of the commission and of the evidence heard by the commission on the hearings of the matter or cause .... “. . . No court of this state shall have power to set aside, modify or vacate any order or decision of the commission, except as herein provided.” K.S.A. 66-118Í provides in part that “[n]o new or additional evidence may be introduced upon the trial or any proceedings for review under the provisions of this act. The cause shall be heard upon the questions of fact and law presented by the evidence and exhibits introduced before the commission . . . .’’The court may, however, stay the proceedings on review and direct the Commission to hear and consider additional evidence. As prescribed by our statutes, “orders or decisions” subject to “review,” are limited to written orders or decisions which are served on the parties, and which result from an evidentiary hearing before the Commission, of which a record is made. See Fed. Power Comm’n. v. Edison Co., 304 U.S. 375, 82 L.Ed. 1408, 58 S.Ct. 963 (1938). This conclusion is supported by the fact that Kansas reviewing courts have consistently required as “basic principles of administrative law” that “[o]fficial boards such as the commission . . . express their orders and decisions in formal and explicit findings to the end that review may be intelligent.” Cities Service Gas Co. v. State Corporation Commission, 201 Kan. at 232; emphasis added. It follows that the rehearing requirement of K.S.A. 66-118b is also limited to such written orders or decisions. SWB, therefore, did not lose its right to judicial review by failing to file application for rehearing within ten days of the oral order of November 18th. Having So determined, we need not decide whether the district court’s restraining order, allegedly void for lack of jurisdiction, tolled the time for filing a rehearing application. The only order subject to “review” and the rehearing requirement was the written order of December 23rd. It is immaterial for present purposes that the Commission issued its order as one on rehearing of its previous oral order. The original case No. 52,852 filed with this court after the December 23rd written order, but prior to denial of the rehearing application as to that order, is therefore premature. Case No. 52,952, however, filed after denial of rehearing, and presenting the same issues, is before us and will be considered. One further point deserves mention. If a party suffers injury as a result of Commission action, e.g., an oral ruling, which does not constitute an “order or decision” subject to “review” as those terms are defined in this opinion, equitable relief by independent action may be available in a district court. It is well established that: “In the absence of a statutory provision for appellate review of an administrative decision no appeal is available but relief from illegal, arbitrary and unreasonable acts of public officials and boards can be obtained by using such equitable remedies as quo warranto, mandamus, or injunction.” Bush v. City of Wichita, 223 Kan. 651, Syl. ¶ 2, 576 P.2d 1071 (1978). This is so even though the action arises from a rate hearing in which “orders or decisions” are “reviewable” exclusively by the Court of Appeals. Cf. Utah Fuel Co. v. Coal Comm’n, 306 U.S. 56, 83 L.Ed. 483, 59 S.Ct. 409 (1939). In most instances, of course, actions and rulings of the Commission made prior to or during a rate proceeding can be fully and adequately considered upon “review” of the final “order or decision.” Since an independent action can be maintained only when statutory “review” is inadequate [Pelican Transfer & Storage v. Kansas Corporation Commission, 195 Kan. 76, 402 P.2d 762 (1965)], such would be available only on those rare occasions when the challenged action was not an “order or decision” as herein defined, and when subsequent “review” would be an inadequate remedy. Thus, if we have jurisdiction to “review” the December 23rd order, an independent action was not available to SWB. On the other hand, even if we have such jurisdiction, the district court in this case may technically have erred by dismissing SWB’s injunction action since at that time only the oral order of November 18th existed. As we have determined that such an oral order is not an “order or decision” subject to “review” or the rehearing requirement, an independent action was available assuming subsequent “review” to be an inadequate remedy. Be that as it may, if the written order of December 23rd is properly before us for review, any error on the part of the district court is moot in that the oral order was incorporated into the written order. II. We have determined that “review” under our statutes is limited to written orders which have been served on the parties, and which result from an evidentiary hearing before the Commission. Although the written order of December 23rd meets these mechanical qualifications, we have, on our own motion, questioned whether it can be reviewed prior to and independent of a final order or decision by the Commission on SWB’s rate request. In response to an order of this court, the parties have briefed and argued this matter. It may initially be noted that the law does not favor interlocutory judicial interference with the administrative process, be it through “appeal,” “review,” or independent equitable action. As stated in Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 904-05, 528 P.2d 1232 (1974): “The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. A primary purpose of the doctrine is the avoidance of premature interruption of the administrative process. It is normally desirable to let the administrative agency develop the necessary factual background upon which its decisions are based. Since agency decisions are frequently of a discretionary nature, or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. It is more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages. The very same reasons lie behind judicial rules sharply limiting interlocutory appeals. Frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.” Thus, it has been held that mere preliminary or procedural rulings are not subject to review under a specific review statute (Fed. Power Comm’n v. Edison Co., 304 U.S. at 383), or pursuant to an independent equitable action (State Comm’n v. Wichita Gas Co., 290 U.S. 561, 78 L.Ed. 500, 54 S.Ct. 321 [1934]). Nonetheless; orders or decisions made prior to the final order concluding administrative proceedings may constitute more than “mere preliminary or procedural” rulings. In Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 386 P.2d 266 (1963), cert. denied 379 U.S. 131 (1964), the court construed the predecessor of K.S.A. 55-606, allowing judicial review of “any rule, regulation, order or decision of the commission” dealing with crude oil production. The order there challenged set the method of computing monthly allowable production in the Kansas-Hugoton Natural Gas Field. The appellants sought review not only of the general order but of monthly production orders which had been issued during the two years the general order was being studied. An issue arose as to whether these monthly orders could be reviewed absent a motion for rehearing after each was issued. In holding they could not, the court addressed the question of what constitutes an “order” subject to review. “The orders were designated ‘Interim Orders.’ The district court ruled that this designation indicated that the orders were not final. “We are concerned with the nature, character, and effect of the order and not with its name. (Hayward v. State Corporation Comm., 151 Kan. 1008, 1013, 101 P.2d 1041.) G.S. 1949, 55-606, does not require that an order must be a ‘final’ in order to be subject to review. It authorizes the review of ‘any’ order by any person aggrieved by such order. It is not concerned with appeals, or appealable orders, nor with the definition of a final order in appellate procedure, or the jurisdiction of the courts with respect to such under the Code of Civil Procedure. “Whether or not a particular determination made by an administrative body is an ‘order’ subject to review is determined by the substance of what that agency purports to do, or has done by the order, and not by the label placed upon it. Under the review procedure, an order is reviewable which determines rights or obligations or fixes some legal relationship as a consummation of the administrative process. (C. & S. Air Lines v. Waterman Corp., 333 U.S. 103, 92 L.Ed. 568, 377, 68 S.Ct. 431.) “The Supreme Court of the United States, in Pennsylvania R. Co. v. United States, 363 U.S. 202, 4 L.Ed.2d 1165, 80 S.Ct. 1131, stated the applicable principle as follows: “. . . We decided some years ago that while a mere ‘abstract declaration’ on some issue by the Commission may not be judicially reviewable, an order that determines a ‘right or obligation’ so that ‘legal consequences’ will flow from it is reviewable. . . .’ (p. 205.) “It is quite definite that the Commission intended the monthly allowable order to be final but not to determine or close the investigation under the show-cause docket. As timely petitions for rehearing were not filed covering the monthly allowable orders for May, 1956, through October, 1957, the orders were not subject to judicial review.” 192 Kan. at 11-12. Although the court stated that statutory review is not limited to “final orders” as defined in appellate procedure, it is of note that the monthly orders were found to be “final” in substance and intent. Courts have generally required a degree of “finality” or “ripeness” before subjecting administrative action to judicial scrutiny. The United States Supreme Court decisions cited in Colorado Interstate were part of an evolving body of law on the “ripeness” of administrative action for judicial review. See 3 Davis, Administrative Law Treatise § 21.01 (1958) and § 21.00 (1980 Supp.). It is now clear that “finality” in the administrative context is to be interpreted “in a pragmatic way” and that “ripeness” “is best seen in a twofold aspect, requiring [evaluation of] both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149, 18 L.Ed.2d 681, 87 S.Ct. 1507 (1967). Relevant considerations include whether the challenged action is “definitive” and has a “direct and immediate effect” on the complaining party; whether the issues tendered are legal; and whether “administrative decision making has reached a stage where judicial review will not disrupt the orderly process of adjudication.” FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 66 L.Ed.2d 416, 101 S.Ct. 488 (1980); Marine Terminal v. Rederi. Transatlantic, 400 U.S. 62, 71, 27 L.Ed.2d 203, 91 S.Ct. 203 (1970); Abbott, 387 U.S. at 151-153. This pragmatic approach has been applied to determine whether action prior to culmination of the administrative proceedings is reviewable pursuant to specific review statutes in the federal courts of appeal. See, e.g., Michigan Power Company v. Federal Power Commission, 494 F.2d 1140 (D.C. Cir. 1974); Phillips Petroleum Co. v. Federal Power Com'n, 475 F.2d 842 (10th Cir. 1973), cert. denied 414 U.S. 1146 (1974). In Phillips Petroleum, the court cited language from Columbia System v. U.S., 316 U.S. 407, 425, 86 L.Ed. 1563, 62 S.Ct. 1194 (1942), which is appropriate herein: “ ‘The ultimate test of reviewability is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow, the results of which the regulations purport to control.’ ” 475 F.2d at 848. We conclude the Commission’s December 23rd order denying SWB’s request for a protective order is “reviewable” at this time. The matter is “fit for judicial decision.” The order clearly determines a right or obligation so that “legal consequences” will flow from it. It is “definitive” with a “direct and immediate” effect on SWB. No disruption of the administrative process appears. The “hardship ... of withholding court consideration” is evident. Disclosure of the confidential information, if wrongful, cannot be corrected on later review. The threatened injury is thus “irreparable” if not presently considered. III. Having determined that we have jurisdiction of this action, we turn to consideration of the issues presented. K.S.A. 66-118d limits judicial review of Commission orders or decisions to a determination of whether they are “lawful” and “reasonable.” The standards governing this limited review were set out in Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380-381, 595 P.2d 735, rev. denied 226 Kan. 792 (1979). SWB contends disclosure is “unlawful” in that the Commission incorrectly relied on general rules favoring open meetings and ignored more specific and compelling legal standards protecting “trade secrets” and confidential commercial information. SWB also contends disclosure is “unreasonable” as not supported by the evidence. The Commission contends it properly “balanced” the procedural context, relevancy, and nature of the documents in deciding that they not be protected. We are here concerned with whether the Commission should protect the documents which SWB contends are trade secrets. In this regard, K.A.R. 82-1-230(a) specifically makes “[t]he rules of evidence as stated in article 4 of the Kansas code of civil procedure” applicable to the Commission. K.S.A. 60-432 provides: “The owner of a trade secret has a privilege, which may be claimed by the owner or his or her agent or employee, to refuse to disclose the secret and to prevent other persons from disclosing it if the judge finds that the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.” Technically, SWB does not seek to invoke this evidentiary privilege. The information has been disclosed to the Commission. The issue is whether the Commission should protect the information from disclosure to the public. In the civil discovery context, such matters are governed by K.S.A. 60-226(c)(7), which allows a court to order “a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.” Although this provision, unlike the evidentiary privilege of K.S.A. 60-432, is not directly applicable to the Commission, the federal rule on which it is based has been said to “reflect existing law.” Federal Open Market Committee v. Merrill, 443 U.S. 340, 356, 61 L.Ed.2d 587, 99 S.Ct. 2800 (1979). As such, the following analysis of Federal Rule of Civ. Proc. 26(c)(7) is helpful: “It is well settled that there is no absolute privilege for trade secrets and similar confidential information; the protection afforded is that if the information sought is shown to be relevant and necessary, proper safeguards will attend disclosure. It is for the party resisting discovery to establish, in the first instance, that the information sought is within this provision of the rule and that he might be harmed by its disclosure. . . . “If it is established that confidential information is being sought, the burden is on the party seeking discovery to establish that the information is sufficiently relevant and necessary to his case to outweigh the harm disclosure would cause to the person from whom he is seeking the information. The matter was well put by the Advisory Committee on Rules of Evidence: ‘The need for accommodation between protecting trade secrets, on the one hand, and eliciting facts required for full and fair presentation of a case, on the other hand, is apparent. Whether disclosure should be required depends upon a weighing of the competing interests involved against the background of the total situation, including consideration of such factors as the dangers of abuse, good faith, adequacy of protective measures, and the availability of other means of proof.’ ” 8 Wright & Miller, Federal Practice and Procedure: Civil § 2043, pp. 300-302 (1970). Such an approach is consistent with Pennzoil Co. v. Federal Power Commission, 534 F.2d 627 (5th Cir. 1976), the leading case on administrative disclosure, independent of requests under the Freedom of Information Act, of information alleged to be of a trade secret nature. Pennzoil was a direct review of an order that gas reserve data submitted by producers to the FPC be made public. The court held the FPC had abused its discretion because the disclosure order was not “based on consideration of the relevant factors.” “In its brief order, the Commission stated that it was cognizant of the financial harm to the producers that compliance with its order would entail. The Commission, however, felt, that the ‘public interest’ outweighed such harm. We feel that this brief statement is inadequate as an articulation of a finding that disclosure of this information serves a legitimate regulatory function. “In deciding whether this information should be disclosed, we believe the Commission must consider three additional factors. First, the Commission should consider whether disclosure of this type of detailed information will significantly aid the Commission in fulfilling its functions. . . . Secondly, the Commission should consider not only the harm done to the producers by releasing this information but the harm to the public generally. . . . Finally, and most importantly, the Commission should consider whether there are alternatives to full disclosure that will provide consumers with adequate knowledge to fully participate in the Commission’s proceedings but at the same time protect the interests of the producers.” 534 F.2d at 631-32. We hold that, when deciding whether to publicly disclose information which the Commission has found to be relevant and necessary for its proceedings and which a party contends to be in the nature of a trade secret or confidential research, development or commercial information, the Commission should proceed as follows: First, it should determine whether the information is a trade secret or confidential commercial information. In consider ing this matter, the burden is on the party seeking to prevent disclosure. Secondly, the Commission should weigh the competing interests. In doing so, it should consider, inter alia, the financial or competitive harm to the party seeking to prevent disclosure; whether disclosure will aid the Commission in its duties; whether disclosure serves or might harm the public interest; and whether alternatives to full disclosure exist. Our review of the written order of December 23rd reveals the Commission failed to consider some of the relevant factors and improperly applied others. It appears the Commission treated the nature of the evidence simply as one factor to be considered instead of as the threshold question. Whether information constitutes trade secrets is governed by Koch Engineering Co. v. Faulconer, 227 Kan. 813, 610 P.2d 1094 (1980), where the court stated: “An exact definition of a trade secret may not be possible, but factors to be considered in recognizing a trade secret are: (1) the extent to which the information is known outside the business, (2) the extent to which it is known to those inside the business, i.e., by the employees, (3) the precautions taken by the holder of the trade secret to guard the secrecy of the information, (4) the savings effected and the value to the holder in having the information as against competitors, (5) the amount of effort or money expended in obtaining and developing the information, and (6) the amount of time and expense it would take for others to acquire and duplicate the information.” Syl. ¶ 2. “A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” Syl. ¶ 3. For purposes of disclosure, any distinction between trade secrets and confidential commercial information would appear immaterial. The Commission recognized the Koch factors but made no finding as to whether the evidence did in fact constitute trade secrets. The Commission stated only that it was “unclear how much of the information is actually known by competitors or how much effort would be required to develop such information.” The record indicates that the information in question consists primarily of specific numerical data as to SWB’s customers and equipment together with projections of costs, prices, and introduction dates of new equipment. In light of the evidence offered by SWB to the effect that as far as is known the data contained in the documents here in question has not previously been disclosed to the general public and has been made available to those within the SWB organization solely on a “need to know” basis, we find it unrealistic to require more extensive evidence as to whether SWB customer lists and projected projects are known by competitors or as to how much effort would be required to develop that information. On review, the Commission argues the information is not entitled to trade secret status because it relates to anticompetitive activity on the part of SWB. Even if such was to be considered, the Commission made no finding that the information was of that nature and we may not supply such a finding by implication. The Commission also argues the information lacks value to competitors because it consists of aggregates rather than specific numerical data. Again, the record fails to reflect this and the Commission made no finding in this regard. Given our lack of expertise, an independent examination would not be determinative. Finally, we perceive no “difficulty,” as did the Commission, in finding “forecasts or targets” worthy of protection. In Koch, the court stated that a trade secret: “[M]ay relate to a single item of information, a plan or compilation of information, or a combination of ideas and tangible expressions, such as drawings, patterns, devices, plans, notes and lists with which to put the item, plan or compilation to use. 2 Callmann, Unfair Competition Trademarks and Monopolies § 51.1 (3d ed. 1968 and 1979 Supp.).” 227 Kan. at 826. Assuming the information in question is of a confidential commercial nature, disclosure turns on weighing the relevant factors discussed above. In this regard, the Commission made no finding as to financial or competitive harm to SWB or whether alternatives to full disclosure exist. On the questions of whether disclosure would aid the Commission in performance of its duties or serve the public interest, the Commission appears to have broadly concluded that public access to all evidence before it is required by law. We do not agree. K.S.A. 66-106, which the Commission found controlling, provides in part: “No person desiring to be present at any investigation or hearing by said commission shall be denied admission.” This provision is general in nature, applies to attendance at investigations or hearings, and is not relevant to disclosure of evidence except insofar as presented publicly during such investigation or hearing. Consideration of requests for confidential treatment of information before the Commission is more directly governed by other statutes. The Open Meetings Act, K.S.A. 75-4317 et seq., and the Public Records Act, K.S.A. 45-201 et seq., are both applicable to the Commission. K.S.A. 1980 Supp. 75-4318(a); K.S.A. 1980 Supp. 45-201(a). The Open Meetings Act specifically authorizes discussion of “confidential data relating to financial affairs or trade secrets of corporations” at closed or executive meetings. K.S.A. 75-4319(h)(4). The Public Records Act exempts from disclosure “records specifically closed by law or by directive authorized by law.” K.S.A. 1980 Supp. 45-201(a). Neither of these statutes creates an affirmative right in SWB to prevent disclosure. Compare Chrysler Corp. v. Brown, 441 U.S. 281, 60 L.Ed.2d 208, 99 S.Ct. 1705 (1979) (holding that the Freedom of Information Act’s exemption [5 U.S.C. § 552(b)(4)] of trade secrets does not create an independent right to prevent disclosure). Nonetheless, we conclude the Commission erred in finding the Open Meetings Act and Public Records Act inapplicable to the present controversy. The Commission, in its discretion, was authorized to hold a closed meeting to examine the evidence and had authority, consistent with the evidentiary privilege of K.S.A. 60-432, to issue a protective order shielding the evidence from public disclosure. The Commission also referred to the requirement that it make specific findings of fact in its orders, stating that “[i]f the documents in question were held to be confidential, it is clear that the Commission could not comply with its legal obligation to make specific findings of material facts regarding the concealed evidence.” Again, the Commission’s analysis is too broad. Taken to its logical conclusion, it would abrogate any protection for trade secret information, a situation not required by law. There may be occasions when the Commission can fulfill its duty to make specific findings only by referring to specific trade secret information. On other occasions, it may be sufficient to summarize the data or refer to it generally. Each case will undoubtedly turn on its own facts. Nothing in the record made on the motion for a protective order demonstrates a need for total disclosure. We note that since these matters were docketed with this court the final order of the Commission on SWB’s rate request has been issued. As a part of that order, the Commission directed a separate investigation into SWB’s “migration strategy” and its effect on SWB’s regulated service. However, the Commission found that the “strategy” had not been used in the rate design proposed in this proceeding. It would therefore appear that a further evidentiary hearing and consideration by the Commission as to the treatment to be accorded the documents here in question would be of no material consequence and remand for that purpose is unnecessary. We conclude that the Commission’s order of December 23, 1980, which denied SWB’s motion for a protective order was unlawful and unreasonable and that order is vacated. This cause is remanded to the Commission with directions to sustain SWB’s motion for a protective order of the documents here in issue to the end that those documents remain under seal and not publicly disclosed by the Commission or its staff, and that such documents be finally disposed of according to normal practices before the Commission.	[ -112, 121, -28, -51, 10, -32, 18, 50, 123, -63, 102, 83, -19, -24, -116, 115, -121, 53, 69, 97, -9, -105, 111, 115, -62, -13, -13, -49, -13, 95, 116, -107, 73, 32, -38, 85, -78, -64, -121, -98, -38, 1, -103, -64, -12, 64, 36, 111, 22, -57, 85, 109, -79, 44, 28, 74, 105, 30, -17, 76, -48, 113, -94, 70, 93, 6, 3, 5, 48, 13, -12, 63, 30, -80, -88, 41, 115, -90, -114, 102, 9, -23, 44, -86, -30, 97, -124, -85, -4, -84, 103, -101, -98, -122, -78, 72, 34, 44, -97, -99, 82, 66, 7, -35, -82, -124, 27, -28, 3, -50, -122, -126, 29, -10, 24, 27, -1, -13, 16, 112, -53, -30, 125, 78, 58, -109, -114, -75 ]
Abbott, J.: This is a subrogation action brought by the plaintiff, New Hampshire Insurance Company, to recover money paid to an insured landlord for a fire loss that occurred in a duplex occupied by the defendants, Jeffrey L. Hewins and Marybeth Hewins. The trial court granted plaintiff’s motion for summary judgment and entered judgment against the defendants in the amount of $1,400. The parties had previously stipulated to the amount of damages. Defendants appeal, contending that the defendant Jef frey L. Hewins should have had judgment entered in his favor and that the alleged negligence of Marybeth Hewins was a question of fact that should have been submitted to the jury. The facts that gave rise to this lawsuit are simple and basically undisputed. The defendants were tenants of insured landlord by virtue of an oral, month-to-month lease. On the date the fire occurred, Marybeth Hewins and the two minor Hewins children were at the duplex. Marybeth placed a can of Crisco on an electric burner and turned the burner to a medium-high setting. The can contained about two and a half inches of Crisco that had been used to french fry potatoes on ten or twelve previous occasions. Marybeth left the duplex to check on one of the children, and was about thirty feet from the front door talking to a neighbor when her husband, Jeffrey L. Hewins, arrived home. As she went to greet him, both she and her husband noticed there was a fire in the kitchen. This was about two minutes after she had left the duplex. Jeffrey removed the second child from the duplex, then hooked up a garden hose and extinguished the fire. The issues in this case involve K.S.A. 58-2555(f), which provides: “The tenant shall ... be responsible for any destruction, defacement, damage, impairment or removal of any, part of the premises caused by an act or omission of the tenant or by any person or animal or pet on the premises at any time with the express or implied permission or consent of the tenant.” It was the opinion of the trial court that the above quoted portion of the landlord-tenant act became a part of the oral rental contract between the defendants and their landlord, that Marybeth Hewins was negligent as a matter of law, and that Jeffrey Hewins was liable for her negligence as a tenant by virtue of the above quoted statute. Independent of the statute in issue, and independent of an express covenant, Kansas law imposes an obligation on a tenant to return the premises to the landlord at the end of a rental term unimpaired by the negligence of the tenant. Salina Coca-Cola Bottling Corp. v. Rogers, 171 Kan. 688, 691-92, 237 P.2d 218 (1951); In re Estate of Morse, 192 Kan. 691, 695, 391 P.2d 117 (1964). Marybeth Hewins argues that her negligence was a question of fact for the jury. As we view her argument, she does not dispute the basic fact that she placed a can of Crisco on an electric stove burner, turned the burner to medium-high and then left the can unattended; but she argues that she was not aware the “flashpoint” of the hot oil was much lower as a result of its previous use in cooking food than she had realized. We are satisfied the trial judge correctly found Marybeth Hewins negligent as a matter of law. The Uniform Residential Landlord and Tenant Act (1972) was considered and its legislative history and intent discussed in Clark v. Walker, 225 Kan. 359, 590 P.2d 1043 (1979). The Supreme Court pointed out that the legislature intended to enact a comprehensive landlord-tenant code that would establish a single standard of reference for both landlords and tenants. The Kansas act is based largely on the uniform act, but with some modification; and K.S.A. 58-2555(f) is one section at variance with the uniform act. The uniform act provides that “[a] tenant shall . . . not deliberately or negligently destroy, deface, damage, impair, or remove any part of the premises or knowingly permit any person to do so.” Art. III, § 3.101(6). The authors of the uniform act commented that the intent was to establish minimum duties of tenants consistent with public standard's of health and safety. We are unaware of any reason why Kansas cannot impose a greater liability on a tenant than that contemplated by the uniform act, and defendants do not argue otherwise. The legislature obviously intended to do so. The Special Committee on Consumer Protection, in its report to the 1974 Kansas legislature (Proposal No. 17—Landlord-Tenant Relations) concerning Senate Bill No. 233, noted the change under consideration was worded differently from the uniform act and imposed a greater responsibility on the tenant insofar as persons on the premises with his consent are concerned. In the absence of a valid rental agreement to the contrary, the Kansas act provides the basic terms of the landlord-tenant relationship (K.S.A. 58-2545). As emphasized in Clark v. Walker, 225 Kan. at 364, the act provides both landlords and tenants with advantages and disadvantages. Prior to adoption of the landlord-tenant act, Kansas permitted a tenant to contract to return property at the end of a lease in as good condition as when possession was given to the tenant and held a tenant liable for damages to the leased premises that occurred without negligence on the part of the tenant. Mayall Hotel Co. v. Atchison Hotel Co., 192 Kan. 566, 389 P.2d 843 (1964). The landlord-tenant act by analogy establishes a contract between landlords and tenants who have not provided to the contrary that the tenant will be responsible for the negligent acts or omissions of a person on the premises with the express or implied consent of the tenant. Parties to a residential lease are presumed to contract with reference to presently existing statutes, and the provisions of the statute will be read into and become a part of the contract by implication except when a contrary intention has been manifested and is permitted by the act. In the case before us, the negligent act or omission was committed by a cotenant; and no reason exists to exclude Jeffrey L. Hewins from liability for the negligent act of a cotenant on the premises with his express or implied consent when he would have been liable for a guest’s conduct under the same circumstances. Affirmed.	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Swinehart, J.: This is an appeal by the natural mother from a finding of unfitness and severance of her parental rights. Tony and Deana Zappa were born March 25, 1968, and April 13, 1969, respectively, in Wood River, Illinois, to Beverly and Anthony V. Zappa, Sr. In late 1972, Tony was diagnosed by the St. Louis Children’s Hospital as hyperkinetic and two years slow in development. In March, 1973, Beverly and the two children moved to Kansas City where Beverly had relatives, in order that Tony could be treated as an outpatient at the Kansas University Medical Center (KUMC). Beverly divorced Anthony V. Zappa, Sr., in 1974. In 1975 Beverly met Carl Ray Chase who moved in with her and introduced her to drug usage. After hospitalization for an overdose on May 28,1977, Beverly allegedly took the “cold cure” and quit using drugs. On January 13, 1978, Beverly shot and killed Carl Chase while he was in bed with her 18-year-old daughter from a previous marriage. While in jail awaiting trial, Beverly requested foster home care for Tony and Deana. On February 2, 1978, a dependent and neglected petition was filed alleging the children were without proper care, custody or support. Both children were placed in foster homes. Beverly waived the detention hearing, then gained a continuance of the dependent and neglected hearing until after her criminal proceedings were completed. Beverly pled guilty to voluntary manslaughter on September 5, 1978, and was sentenced to the Kansas Women’s Correctional Institution. On September 29, 1978, the dependent and neglected hearing was held. The petition was orally amended to conform with the 1978 amendment to K.S.A. 38-802(g)(1): “(g) ‘Deprived child’ means a child less than eighteen (18) years of age: “(1) Who is without proper parental care or control, subsistence, education as required by law or other care or control necessary for such child’s physical, mental or emotional health, and the deprivation is not due solely to the lack of financial means of such child’s parents, guardian or other custodian; . . .” Beverly stipulated to the deprived finding and it was also sustained with regard to Anthony V. Zappa, Sr. The court awarded legal and physical custody of the children to SRS, allowed the maternal grandparents visitation and stated Beverly Zappa could petition for the return of custody upon her release from prison. Tony’s emotional and behavioral problems made him too disruptive to remain in a regular foster home and on September 6, 1978, he was transferred to the KUMC children’s psychiatric ward. On March 5, 1979, he was moved to the Rainbow Unit of the Osawatomie State Hospital for long-term therapy. On June 4, 1979, Tony was molested by an employee of the Rainbow Unit who pled guilty to indecent liberties with a ward, K.S.A. 21-3504, on August 21, 1979. A suit was filed on Tony’s behalf against the State for damages. SRS filed an amended petition on July 26, 1979, asking for severance of the Zappas’ parental rights and alleging that Tony and Deana were deprived children, pursuant to K.S.A. 1980 Supp. 38-802(g). “(1) Who is without proper parental care or control, subsistence, education as required by law or other care or control necessary for such child’s physical, mental or emotional health, and the deprivation is not due solely to the lack of financial means of such child’s parents, guardian or other custodian; “(3) who has been abandoned or physically, mentally, emotionally abused or neglected or sexually abused by his or her parent, guardian or other custodian; or . . . Beverly was released from prison in August, 1979, and residential service was made on September 8, 1979. Interrogatories were mailed by appellant on September 19, 1979, and received by the State late September 25, 1979. At the first hearing on September 27, 1979, appellant moved for a continuance to permit the State time to answer the interrogatories and to permit her to prepare a defense. The motion was denied and testimony from the State’s witnesses was received on September 27 and 28. The hearing was continued until November 1 to permit evaluation of the children by a psychiatrist selected by the appellant and additional testimony by the State’s witnesses. On October 24, 1979, the court denied a motion to compel discovery filed when the staff psychologist at the Rainbow Unit refused during her deposition to answer questions related to Tony’s molestation. The psychologist subsequently testified on November 1 about Tony’s treatment other than the molesting incident. Appellant testified on her own behalf on November 1, and the hearing was continued until November 7 to allow testimony of her psychiatric expert. The court issued a letter decision December 6,1979, finding the children were deprived and that both parents were unfit. Their parental rights were ordered severed. The natural mother raises seven issues on appeal; (1) Whether the use of form petitions violated the notice requirements of the due process clause of the Fourteenth Amendment; (2) whether it was abuse of judicial discretion and denial of due process for the court to deny appellant’s request for a continuance at the com mencement of the severance hearing; (3) whether it was abuse of judicial discretion, denial of due process and denial of equal protection for the court to deny appellant’s motion to compel discovery; (4) whether the court allowed testimony in violation of the physician-patient or psychologist-client privilege; (5) whether the court admitted medical records in violation of the hearsay rule; (6) whether there was sufficient competent evidence to support a severance of appellant’s parental rights; and (7) whether the trial court erred in not implementing a less restrictive alternative than severance of parental rights. Appellant has raised the issue of the use of form petitions violating the notice requirements of the due process clause of the Fourteenth Amendment to the United States Constitution on appeal. Since proceedings under the juvenile code are separate from either civil or criminal proceedings and decisions addressing the procedural aspects of the juvenile code have created a set of hybrid standards, the issue raised by appellant would be interesting to consider. However, appellant failed to raise the issue during the severance hearings and we cannot consider it. The court in Malone v. University of Kansas Medical Center, 220 Kan. 371, Syl. ¶ 1, 552 P.2d 885 (1976), stated: “Where constitutional grounds for reversal of a judgment are asserted for the first time on appeal they are not properly before the appellate court for review.” Appellant filed a motion for continuance the day before the first hearing alleging that the delay would not endanger the children who were already in SRS custody, that there was a conflict of interest with SRS bringing the severance petition and defending the molesting lawsuit, and that appellant was being deprived of the opportunity for discovery. The court denied the motion at the hearing, ruling: “THE COURT: At this time the Court is going to deny your motion for continuance. The motion was filed one day prior to the setting, everyone had notice of this setting, the Court finds that the conflict of interest alleged by the attorneys for the mother can be cured by the Court appointing a guardian ad litem and next friend for the child. The child itself after it reaches majority can sue on its own behalf within one year after it reaches majority, that the only issue before this Court at this time is the best interest of the child and whether after the Court hears the evidence that the children are found to be — or the Court has already found the children to be deprived — the issue would be whether the rights of the natural parents should be severed and the Court also holds that the best interests of the children would not be served by continuance and that a more stable circumstance should be provided for them as soon as possible. So, the Court at this time denies the motion for a continuance.” K.S.A. 1980 Supp. 38-817(a) allows for a continuance for “good and sufficient cause” at the discretion of the court. The court in this severance hearing did provide reasons for denying the motion on each ground urged by the appellant. Although nineteen days between the date of service and the date of hearing may not have been much time to prepare a defense, that should have been immediately apparent and the motion could have been made earlier. The State’s files were open to appellant and she knew several witnesses would be appearing for whom a last minute continuance would be extremely inconvenient. A continuance of a month or two would not have altered the basis of any alleged conflict since the other case was likely to involve lengthy litigation. The propriety of denying the continuance to allow discovery will be discussed under the next issue. The State had already made its files available to appellant and the court should not be faulted if appellant did not utilize the opportunity. The denial of the continuance was not an abuse of discretion under the standards set forth in Stayton v. Stayton, 211 Kan. 560, 506 P.2d 1172 (1973), and the facts of this case. “Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion. All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.” 211 Kan. at 562. The second discovery clash occurred when appellant sought to depose Diane Lund, the Rainbow Unit staff psychologist, on October 15, 1979. Lund refused to answer questions other than her name, place of employment and qualifications, on the advice of the SRS attorney. She then invoked K.S.A. 59-2931, which prohibits the release of any records of a mental facility patient. K.S.A. 59-2931(a)(2)(A) provides that a written consent by the patient, the patient’s parent or a guardian may allow release of the records unless the treatment facility finds the release harmful to the patient. After the statements at the deposition, appellant filed a motion to compel discovery which was heard on October 24, 1979. The court ruled that although appellant could pursue discovery relating to the fitness of appellant as a parent, questions involving the molesting incident were irrelevant and immaterial. Here any possible abuse of discretion by the trial court was without question corrected by its course of conduct during the trial, and the natural mother was ultimately not prejudiced by the court’s failure to grant a continuance to permit discovery. The hearing commenced September 27, 1979, and after several continuances and three additional hearings, concluded on November 7, 1979. The trial transcript indicates the appellant was granted many opportunities to review and consider exhibits during the course of the trial. The several continuances granted after the State’s evidence was presented gave appellant an opportunity to call all her witnesses, and further, to recall those State witnesses who had previously testified. Appellant has failed to show prejudice resulted from either the original denial of a continuance or from the incomplete discovery process. Appellant objected to the admission of records and testimony of almost all of the State’s witnesses on the basis of the physician-patient, K.S.A. 60-427, and the psychologist-client, K.S.A. 74-5323, privilege. The court overruled each objection stating it was in the “best interests of the child.” In a deprived child-parental severance proceeding under K.S.A. 1980 Supp. 38-818 et seq., the privilege issue raised by appellant must be considered in light of two exceptions to the physician-patient privilege. K.S.A. 60-427 (d) and (e) state: “(d) There is no privilege under this section in an action in which the condition of the patient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient or claiming as a beneficiary of the patient through a contract to which the patient is or was a party. “(e) There is no privilege under this section as to information which the physician or the patient is required to report to a public official or as to information required to be recorded in a public office, unless the statute requiring the report or record specifically provides that the information shall not be disclosed.” In a severance action, the physical, emotional and mental conditions of the child and the parent are in issue. In reference to exception (e), among the information required to be reported to officials is that of child abuse under K.S.A. 38-716 et seq. K.S.A. 38-719 states: “In any proceeding resulting from a report made pursuant to this act or in any proceeding where such a report or any contents thereof are sought to be intro duced in evidence, such report or contents or any other fact or facts related thereto or to the condition of the child who is the subject of the report shall not be excluded on the ground that the matter is or may be the subject of a physician-patient privilege or similar privilege or rule against disclosure.” This statute waives the physician-patient privilege and is construed to waive the psychologist-client privilege. The connection between the child protection act and the juvenile code has been previously noted in the decisions of Nunn v. Morrison, 227 Kan. 730, 608 P.2d 1359 (1980), and In re Boehm, 226 Kan. 247, 596 P.2d 1242 (1979). Deprivation and severance actions often begin as reports in compliance with the child protection act. These reports remain strictly confidential until an action is commenced on behalf of the child. The court in Nunn balanced the need for the anonymity of those reporting possible abuse with the right of those accused of the abuse to defend the charge once formal proceedings begin. The protection and well-being of the child remains paramount within either act. The court did not err in overruling appellant’s objections on the basis of the psychologist-client privilege and physician-patient privilege. Beverly was not the patient, the guardian ad litem had the power to assert or waive the privilege, and the child protection act effectively waived the privilege. Appellant also objected to the admission of the medical records as hearsay. However, appellant failed to include the offensive exhibits in the record on appeal and for that reason they will not be considered. The court in Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 3, 564 P.2d 508 (1977), stated: “It is incumbent upon the appellant to include in the record on appeal any matter upon which he intends to base a claim of error.” Appellant argues the evidence presented was insufficient to support a finding of unfitness. The court in In re Brooks, 228 Kan. 541, 546-547, 618 P.2d 814 (1980), summarized the judicial constructions of the term “unfit”: “1. In re Vallimont, 182 Kan. 334, 340, 321 P.2d 190 (1958): “ ‘Parents who treat the child with cruelty or inhumanity, or keep the child in vicious or disreputable surroundings, are said to be unfit. Parents who abandon the child, or neglect or refuse, when able so to do, to provide proper or necessary support and education required by law, or other care necessary for the child’s well being are said to be unfit. Violence of temper or inability or indisposition to control unparental traits of character or conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from other moral defects.’ “2. Finney v. Finney, 201 Kan. 263, Syl. ¶ 2, 440 P.2d 608 (1968), had this to say: “ ‘The word “unfit” means, in general, unsuitable, incompetent or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. Unsuitability for any reason, apart from moral defects, may render a parent unfit for custody.’ “3. In re Penn, 2 Kan. App. 2d 623, 625, 585 P.2d 1072 (1978), held: “ ‘The word "unfit” means in general, unsuitable, incompetent or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. In re Armentrout, 207 Kan. 366, Syl. ¶ 3, 485 P.2d 183 (1971). So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from any other defects. In re Vallimont, 182 Kan. at 340. “ ‘Inherent mental and emotional incapacity to perform parental obligations can constitute such breach of parental duty as to make the parents unfit to be entrusted with custody of their child. See K.S.A. 1977 Supp. 38-824(c); In re Johnson, 214 Kan. 780, 522 P.2d 330 (1974); In re Bachelor, 211 Kan. [879] at 883 [508 P.2d 862 (1973)].’” The testimony of the various State witnesses indicated that Beverly Zappa was primarily responsible for the aberrant behavior of her children. Unrealistic expectations of behavior and development, inappropriate disciplinary methods and a repeatedly critical attitude towards the children prevented the establishment of healthy mother-child relationships. Her unpredictable behavior left the children confused and fearful. When “good” behavior by the children went unrewarded or was punished anyway, the children resorted to “bad” behavior. Appellant argues the bulk of the evidence presented was too old to be persuasive. Dr. Leona Therou’s contacts with Tony and Beverly began in 1973 and continued through 1978. The most extensive studies of Tony were first done in 1973 by Dr. Therou, then in 1978 by the staff at KUMC when Tony was admitted as a patient. Tony’s treatment continued through the time of the severance hearing, so that information given by Diane Lund, staff psychologist at the Rainbow Unit, provided an update. Tony’s problems were of a long-term origin and the testimony regarding early evaluations were appropriate. Deana was first evaluated in 1976, but her progress was also traced from 1978 through the time of the hearing. Beverly was tested with Deana in 1976 and was again tested on May 29, 1979. Dr. Fowler C. Jones interpreted the first results and Dr. Steven I. Holley evaluated the second test, indicating a strong correlation between the results of the two tests given some three years apart. The evidence seemed to indicate the emotional problems of Beverly which apparently caused the children’s problems still remained. Appellant’s expert, Dr. Claude Werth, essentially considered the testing conducted on Beverly and the children to be worthless. He claimed to be able to evaluate an individual’s emotional, mental and behavioral problems in the first twenty minutes of contact with the individual. He considered Tony’s problems unrelated to any maternal emotional deprivation, and thought that Deana was a “pleasant, vivacious young girl of at least normal intelligence, very enthusiastic, very spontaneous.” His evaluations were made on October 25, 1979, during visits of an hour to two hours in duration. His opinions substantially contradict those of the nine psychiatrists, psychologists and social workers who saw the children over a span of six years. There was substantial competent evidence to support the finding of unfitness. Appellant’s last issue is that a less restrictive alternative should have been tried instead of severance. The court, in Brooks, stated: “The court should carefully consider any particular alternative remedy proposed by an interested party in the case, and if rejected the court should state its reasons for such rejection. The drastic remedy of termination of parental rights should not be utilized unless the court is satisfied there is no realistic alternative and so finds.” 228 Kan. at 551. The findings of the trial court regarding severance clearly indicate a belief on the part of the court that any contact by Beverly with her children would continue to be detrimental. Her deep-seated problems were unresolved and not likely to be corrected, even with lengthy therapy. A less restrictive alternative allowing visitation prior to her incarceration had been tried and was a failure. There seemed to be no reason to forego severance. Affirmed.	[ -112, -19, -35, 124, 25, -31, 10, 30, 67, -21, 49, -13, -85, -32, 85, 105, 75, 39, 80, 121, -111, -74, 23, -128, -6, -5, 120, -41, -13, 95, 108, -75, 99, 112, -101, 21, 98, -118, -27, 16, -118, -80, -87, -11, 16, -62, 52, 107, -38, 14, 49, 30, -109, -88, -102, 127, 12, 46, 91, -65, 112, -24, -85, 7, -18, 118, -93, -106, -74, -91, -40, 7, -104, 57, 0, -24, 50, -76, -122, 124, 79, -119, 12, 96, -26, 33, 24, -19, -88, -119, -66, 126, -99, -89, -101, 104, 2, -121, -66, -67, 108, 84, 31, 120, -53, 79, 110, -20, -56, -114, -68, -103, -51, 40, 64, -87, -29, -83, 34, 113, -34, 36, 92, 102, 120, -101, -84, -78 ]
Rogg, J.: This case grew out of personal injuries received when appellant was assaulted, raped and sodomized on the premises of the Holiday Inn Towers in Kansas City, Kansas. Appellant brought an action for personal injuries on a negligence theory. Appellees interposed the defense that appellant’s injuries were covered by the Kansas Workmen’s Compensation Act, and thus an action on the theory of negligence did not lie. The trial court sustained appellees’ motion for summary judgment based on the pleadings, the deposition of appellant, and written interrogatories answered by appellees. There are two issues to be considered by the court on appeal: (1) Did the trial court err as a matter of law in granting summary judgment on the issue of whether appellant’s exclusive remedy was within the purview of the Kansas Workmen’s Compensation Act? (2) Did the trial court err in determining from the undisputed facts available to it that appellant’s injuries arose out of and in the course of her employment as defined by the Kansas Workmen’s Compensation Act? Since the adoption of our code of civil procedure, the appellate courts of this state have frequently stated the standard the trial court must follow in ruling on motions for summary judgment. The court should search the record and determine whether issues of material fact do exist. Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, 606 P.2d 1009 (1980). The appellate court must examine the record in the light most favorable to the party defending against the motion for summary judgment. It should accept such party’s allegation as true, and give that party the benefit of doubt when a party’s assertions conflict with those of the movant. Collier v. Operating Engineers Local Union No. 101, 228 Kan. 52, Syl. ¶ 2, 612 P.2d 150 (1980). Appellant contends the trial court erred in finding as an undisputed fact that appellant was employed by appellees. It is appropriate to note that the burden of proving employment falls on the appellees and not on the appellant. Unlike a claim for workmen’s compensation where the claimant must establish the employment relationship, here the question of workmen’s compensation coverage was raised by way of defense to the claim of appellant. The California case of Doney v. Tambouratgis, 23 Cal. 3d 91, 96-97, 151 Cal. Rptr. 347, 587 P.2d 1160 (1979), states: “It has long been established in this jurisdiction that, generally speaking, a defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the Workers’ Compensation Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application. . . . ‘It is incumbent upon the employer to prove that the Workmen’s Compensation Act is a bar to the employee’s ordinary remedy.’ ” In this case the petition contained no allegation indicating that an employment relationship existed between appellant and ap pellees, or that the injuries arose out of and in the course of employment. It was therefore appellees’ responsibility to both plead and prove their relationship as employers of appellant, thus granting to them the protection of the workmen’s compensation act. We have carefully reviewed the record before us, which contains all the record the trial court had at its disposal in determining the motion for summary judgment. Appellant’s deposition indicated she worked at the “Holiday Inn.” Deposition Exhibit No. 1 indicated appellant was employed at the Holiday Inn Towers. Appellees’ answer admitted appellant was employed “by the defendants as a waitress in the cocktail lounge at said motel.” It would seem the record supports the finding, at best, that appellant was employed “as a bartender in the Red Fox Lounge, located in defendants’ hotel in Kansas City, Kansas.” At no place in the record are appellees Holiday Inns, Inc., or Topeka Inn Management mentioned as employers of appellant. To further confuse the issue of the relationship of appellees to each other and to appellant, the answers to interrogatories propounded to appellees indicated the real property where the incident occurred was owned by the Iowa Phoenix Corporation and leased to the Kansas Realty Development, Ltd., which in turn leased the premises to Kansas City Motor Hotels, Inc. Ronald Carver Ray managed the property where the incident occurred, under policies established by Topeka Inn Management. The named defendants in this action were Holiday Inns, Inc., a Tennessee corporation; Topeka Inn Management, a Kansas corporation; and Holiday Inn Towers. The record does not support the trial court’s finding that the various defendants are so related to appellant that they are protected from this suit by the workmen’s compensation act. Summary judgment, therefore, was not appropriate on this issue. Although the previous finding of the court determines the question of whether or not summary judgment should have been granted, the rulings of the court in terms of the further issues raised are in areas somewhat unique, and which have not been precisely determined in prior reported Kansas cases. We therefore wish to examine the court’s findings in terms of the issue of whether summary judgment was proper on the question of the injury arising out of and in the course of the employment of appellant. Since the workmen’s compensation act is being used as an affirmative defense by appellees, it is useful to note its application here. In Wilburn v. Boeing Airplane Co., 188 Kan. 722, Syl. ¶ 1, 366 P.2d 246 (1961), the general rule is stated: “The workmen’s compensation act is not to be construed liberally in favor of compensation when an injured workman seeks compensation — and construed strictly against compensation when he seeks to recover damages against his employer. In other words, the same rule and yardstick, as applied to the same facts, must govern — whether invoked by the employee or the employer.” Another general rule is that the workmen’s compensation act should be liberally construed in favor of the workman and in favor of allowing compensation where it is reasonably possible to do so. Odell v. Unified School District, 206 Kan. 752, 756, 481 P.2d 974 (1971). The workmen’s compensation act should be liberally interpreted then in such a way as to bring a workman under the act whether desirable or not for the specific individual’s circumstance. It would be helpful at this point to recite what we believe are the material undisputed facts which cover this issue. Appellant was employed to work in the cocktail lounge from 4:30 p.m. until 1:30 a.m. the night of the alleged assault, which occurred at approximately 10:00 p.m. in a restroom located across the hallway from the lounge, on the premises of the Holiday Inn Towers. Appellant’s specific duties were to serve as a bartender and to mix drinks for the patrons of the lounge. Appellant’s employment did not require her to dress in a distinctive fashion or uniform, carry large sums of money, be present at or frequent isolated or secluded areas of the building, deal with the general public, or deal with or evict unruly clientele. During appellant’s hours of employment, she did not have any schedule of prearranged breaks, nor was it necessary for her to request permission to use the restroom. Appellant, when assaulted, was on a break and utilizing the restroom used by employees, guests and patrons of the motel. A separate employees’ restroom had been furnished but, because of its condition, appellant had consistently utilized the public restroom. The motel in question is located in a dangerous and high-crime area of the city, which is especially dangerous at night. Appellant was aware of the dangers and was frightened to such an extent that she would not walk in that area of town at night without an escort. Appellant had never seen nor had any prior association with her assailant, and there appeared to be no personal motivation for the assault. The case of Siebert v. Hoch, 199 Kan. 299, 303-304, 428 P.2d 825 (1967), states the general law of Kansas as to when an accidental injury arises out of and in the course of employment: “Our workmen’s compensation act (K.S.A. 44-501) provides that in order to be compensable an accidental injury must arise ‘out of’ and ‘in the course of’ the employment. The two phrases have separate and distinct meanings (Floro v. Ticehurst, 147 Kan. 426, 76 P.2d 773, Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P.2d 701); they are conjunctive and each condition must exist before compensation is allowable (Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P.2d 197, Tompkins v. Rinner Construction Co., 194 Kan. 278, 398 P.2d 578); and as to when every case must be determined upon its own facts. “The phrase ‘in the course of’ employment relates to the time, place and circumstances under which the accident occurred, and means the injury happened while the workman was at work in his employer’s service (Pinkston v. Rice Motor Co., supra). “This court has had occasion many times to consider the phrase ‘out of’ the employment, and has stated that it points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. Some of our decisions to this effect are: Carney v. Hellar, 155 Kan. 674, 127 P.2d 496; Jones v. Lozier-Broderick & Gordon, 160 Kan. 191, 160 P.2d 932; Neal v. Boeing Airplane Co., 161 Kan. 322, 167 P.2d 643; Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 211 P.2d 89; Pinkston v. Rice Motor Co., supra; and Bohanan v. Schlozman Ford, Inc., 188 Kan. 795, 366 P.2d 28. “This general rule has been elaborated to the effect that an injury arises ‘out of’ employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury (see Hudson v. Salina Country Club, 148 Kan. 697, 84 P.2d 854; Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P.2d 235; Rorabaugh v. General Mills, 187 Kan. 363, 356 P.2d 796). “An injury arises ‘out of’ employment if it arises out of the nature, conditions, obligations and incidents of the employment (Bohanan v. Schlozman Ford, Inc., supra; Geurian v. Kansas City Power & Light Co., 192 Kan. 589, 389 P.2d 782). In Taber v. Tole Landscape Co., 181 Kan. 616, 313 P.2d 290, this court stated the foregoing tests exclude an injury not fairly traceable to the employment and not coming from a hazard to which the workman would have been equally exposed apart from the employment.” We have no difficulty in this case finding that the injury of the appellant occurred “in the course of” her employment. The use of a restroom during the time of her employment and at the place of her employment seems to easily put it within the meaning of that phrase. The more difficult question is, did the injury of the appellant arise “out of” her employment? A personal attack is obviously not part of the appellant’s prescribed duties. Is her injury fairly traceable to her employment and is there a causal connection apparent to the rational mind because of the nature, conditions, obligations and incidents of the employment? We believe that the injury of this appellant does meet the test as previously set out by the court. Appellant was exposed to attack by virtue of being in a high-crime area at night for purposes of her employment. The general public was not so exposed. The general public must be viewed as a broader cross-section of the community than that group of people who happen to be in this dangerous area of the city at night. Having considered the trial court’s reasoning and findings concerning the issue of whether appellant’s injury occurred in the course of and out of her employment, we must conclude that the trial court ruled correctly. When her employer is identified and determined, the defense of the exclusiveness of appellant’s recourse under the workmen’s compensation act is a defense to her action as to that employer or employers. In view of the fact we find the case was not ripe for summary judgment because there was a controverted material fact as to who the employer of appellant was at the time of her injury, we reverse the trial court’s finding on that basis alone, and remand the case for determination of who appellant’s employer was and direct that summary judgment as to that employer be sustained. Any of the named defendants who is not an employer of appellant would not be entitled to claim the workmen’s compensation act as a defense to appellant’s claim.	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Holmes, J.: James E. Antwine and Mitchell McHenry each appeal from a conviction by a jury of one count of felony theft (K.S.A. 1980 Supp. 21-3701). The appeals have been consolidated for hearing and determination before this court. This is the second time these appellants have been before this court as a result of their activities in Topeka on September 24, 1978. See State v. Antwine, 4 Kan. App. 2d 389, 607 P.2d 519 (1980). In the prior case the appellants were charged with multiple counts of aggravated robbery and each was convicted of one count of robbery. On appeal the convictions were reversed for failure of the trial court to instruct the jury on the lesser included offense of theft. Upon retrial each defendant was convicted of felony theft. While the facts as developed in the second trial deviated somewhat from those at the first trial, we do not deem it necessary to recite the factual situation at length. The basic facts are set forth in State v. Antwine, 4 Kan. App. 2d 389, and will not be repeated here. Suffice it to say the major point in this appeal is that the prosecuting attorney delivered certain items of physical evidence taken from the defendants including money, jewelry and watches, to the theft victims without notice to the defendants or their counsel and without benefit of any court order. Defendants allege that some of such property belonged to them and was wrongfully given to the purported victims and further complain they were prejudicially deprived of access to property seized by the police, which may have included possible exculpatory evidence. As a result they seek a reversal of their convictions and a dismissal of the charges against them. At the outset the appellants devote much of their brief to their complaint that some of the property turned over to the alleged victims was the personal property of the defendants. Be that as it may, if the prosecution released personal property of the appellants to another, then appellants’ recourse is by way of a civil action to recover the property or its value. Such an erroneous delivery of the defendants’ property would not, ipso facto, constitute grounds for reversal of their convictions. The prosecution does not deny that the items seized upon the arrest of the defendants were returned to one of the victims for the purpose of distribution to the rightful owners. The property was released by the prosecution after the preliminary hearing and without notice to the defendants. Appellants contend that as value, ownership and identity of the stolen property are necessary elements for a conviction of felony theft, the availability of the physical evidence might have been beneficial to their defense and may also have been useful in discrediting the testimony of the witnesses for the prosecution. Appellants contend their constitutional rights were violated and that the disposition of the property was in violation of K.S.A. 1980 Supp. 22-2512, and deprived appellants of their rights under K.S.A. 22-3212. K.S.A. 1980 Supp. 22-2512 provides in part: “Property seized under a search warrant or validly seized without a warrant shall be safely kept by the officer seizing the same unless otherwise directed by the magistrate, and shall be so kept as long as necessary for the purpose of being produced as evidence on any trial. The property seized may not be taken from the officer having it in custody so long as it is or may be required as evidence in any trial. . . . Where seized property is no longer required as evidence in the prosecution of any indictment or information the court which has jurisdiction of such property may transfer the same to the jurisdiction of any other court, including courts of another state or federal courts, where it is shown to the satisfaction of the court that such property is required as evidence in any prosecution in such other court. When property seized is no longer required as evidence, it shall be disposed of as follows: (1) Property stolen, embezzled, obtained by false pretenses, or otherwise obtained unlawfully from the rightful owner thereof shall be restored to the owner.” K.S.A. 22-3212 provides in part: “(2) Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution upon a showing of materiality to the case and that the request is reasonable.” On May 5, 1980, the defendants filed a motion to compel the production, inspection and testing of personal property seized by the police during their investigation. The State was unable to comply in that some of the property in question had been released by the prosecutor following the preliminary hearing. It is the position of the State that the prosecutor has unbridled discretion in the determination of what property, if any, is to be held for use as physical evidence during the trial. While it is true that the prosecuting attorney is the one charged with the duty of prosecuting criminal cases (K.S.A. 22a-104) and has wide discretion in connection therewith, there are certain limitations upon the State. For example the prosecution has an affirmative duty, independent of court order, to disclose clearly exculpatory evidence to a criminal defendant. State v. Kelly, 216 Kan. 31, 531 P.2d 60 (1975). In addition, the court has wide discretion to impose sanctions for failure to comply with discovery orders and may prohibit the party who fails to comply with such an order from introducing evidence on matters not disclosed. K.S.A. 22-3212(7); State v. Villa & Villa, 221 Kan. 653, 561 P.2d 428 (1977); State v. Wilkins, 220 Kan. 735, 556 P.2d 424 (1976). The appellants seek a reversal of the convictions and a discharge of the charges against them based upon their contention that the prosecution wrongfully disposed of physical evidence which might have been beneficial to them in their defense. Whether such items of physical evidence could have benefited the defense will never be known. Appellants have made several hypothetical arguments based upon possible use of such property which, if proved, might have been of some benefit to them. However, we think the relief requested is extreme under the circumstances, although the State must exercise some restraint in its disposition of physical evidence which belongs to victims of the crime or persons other than an accused when such evidence may be relevant to the defense of the accused. On the other hand, the plight of the victims and owners of physical evidence must also be given due consideration. It is tragedy enough that a person has been deprived of his property through some criminal act of another without such loss being compounded by any unnecessary delay in returning the property to its rightful owner. It is the duty of the prosecution and the court to see that a person criminally deprived of property has it restored to him, if possible, at the earliest opportunity consistent with the protection of the rights of both the State and the defendant. The legislature, through the enactment of K.S.A. 1980 Supp. 60-472 in 1979, recognized the problem and has provided a method whereby the rightful owners of property wrongfully taken in a crime may have the property restored to them promptly and without the necessity of waiting months or years for a final determination of the resultant criminal prosecution. How, then, do we protect the conflicting interests of the victims of the crime, the State and the accused? In State v. Gunzelman, 200 Kan. 12, 434 P.2d 543 (1967), the defendant pled guilty to the offense of attempting to bribe a district judge. After being granted probation Gunzelman filed a motion seeking the return of the bribery money being held by the Wichita Police Department. The motion was sustained and the State appealed the ruling of the district court. The case arose prior to the enactment of K.S.A. 1965 Supp. 62-1834, the predecessor to K.S.A. 22-2512, and at a time when we had no statute pertaining to the disposition of property being held as evidence. Our Supreme Court stated: “While the matter of disposing of property taken or detained as evidence in a criminal case is governed by statute in most states, there is authority that even where there is no statute, the court before which the action was brought, or is pending, has inherent power to direct that such property be returned to the owner, delivered up to his order, or otherwise disposed of when it is no longer required for the purposes of justice. (Citations omitted.) It has been held that property or money lawfully in the hands of law enforcement officials for use as evidence in a criminal proceeding is regarded as being in custodia legis (citations omitted) and subject to the court’s order as to disposition thereof in the same proceeding, rather than in a separate action (citations omitted).” For a comprehensive discussion of the actions a trial court may take when the State has lost, misplaced or otherwise fails to produce discoverable evidence, see State v. Wilkins, 220 Kan. 735, 556 P.2d 424 (1976), and cases cited therein. It is apparent in this case that the State failed to comply with the safeguards and procedure set forth in K.S.A. 1980 Supp. 22-2512. We do not agree with the position of the State that the prosecutor has absolute and unfettered discretion as to what evidence will be retained for trial, although the prosecution does have the discretion to determine what evidence will be used by the State in the prosecution of the case. When the State has in its possession property belonging to another which might be beneficial to an accused who has been charged with a crime involving such property, the same should not be released by the State until notice of an intent to release the property has been given to the accused or his attorney and the release thereof approved by the court having jurisdiction of the action. The defendant in such a case has the right to object and show cause why the property should not be released from custodia legis. These defendants were originally charged with multiple counts of aggravated robbery and the prosecution simply failed to recognize that the physical evidence released might be utilized by the defense in a subsequent prosecution for theft. No bad faith on the part of the prosecution is shown and considering all of the evidence as contained in the record, no clear prejudice to the appellants is shown. In State v. Quinn, 219 Kan. 831, 549 P.2d 1000 (1976), the Supreme Court considered various situations wherein the State failed to disclose to the defendant certain exculpatory evidence. In that case, the court found the failure of the State was not deliberate or in bad faith. The Supreme Court in quoting from State v. Kelly, 216 Kan. 31, 36, said: “ ‘The rule to be applied in this “oversight” classification of cases may be stated as follows: When the withholding of evidence by the prosecution is not deliberate and in bad faith and when the prosecution has not refused to honor a request for the evidence made at a proper stage of the proceedings, the defendant should be granted a new trial only if the record establishes: (1) that evidence was withheld or suppressed by the prosecution, (2) that the evidence withheld was clearly exculpatory, and (3) that the exculpatory evidence withheld was so material that the withholding of the same from the jury was clearly prejudicial to the defendant.’ ” p. 836. While the release of the property in this case was not an “oversight” by the prosecution, as contemplated in Kelly, the rationale of Kelly and Quinn would seem to be appropriate. In the absence of a showing that the returned items were clearly exculpatory or that defendants were clearly prejudiced by the failure to have access to the property, the good faith release by the prosecution of property seized in a criminal investigation to the owners thereof does not warrant a reversal of the convictions or a dismissal of the charges against the defendants. We also wish to emphasize that the requirements of notice to the defendant with an opportunity to object to the disposal of property and subsequent approval by the court before physical evidence, which may be reasonably calculated to be of benefit to the defendant, may be released applies only when the defendant is in custody, is represented by counsel or is otherwise available for service of notice, and shall not limit the discretion of the prosecution or other proper officers in returning property to the rightful owner when the accused has not been apprehended and charged or is unavailable for notice. We have carefully considered all points raised by the appellants and based upon the entire record in this case, find no grounds for reversal of the convictions. The judgments are affirmed.	[ -112, -32, -23, 61, 8, 96, 43, 60, 65, -25, -10, 83, -87, -54, 1, 107, -13, 117, 85, -13, -2, -73, 79, -111, -46, -77, -5, 85, -1, 79, -90, -12, 13, 112, -61, -35, 70, -64, -9, 30, -114, 0, 58, -64, -47, 0, 52, 107, 22, 10, -15, 14, -25, 107, 16, -63, 73, 44, 11, -67, 65, 121, -93, 69, -33, 22, -93, 52, -108, 5, -40, 43, -104, 53, 1, 104, 115, -74, -122, 116, 77, -103, -116, 98, 102, 4, 20, -17, -96, -116, 46, 119, -105, -89, -104, 72, 65, 37, -106, -97, 119, -105, 37, -4, -31, 21, 31, 108, -121, -49, -48, -109, 13, 50, 10, 82, -5, 35, 50, 113, -51, 98, 93, 119, 48, -101, -114, -41 ]
Cook, J.: This is an appeal by plaintiff, Harold Murphy, a terminated employee, from the district court’s dismissal of his cause of action against defendants, City of Topeka-Shawnee County Department of Labor Services, Bill Bywater, Ann Newman, and Alonzo Harrison. Also involved is a cross-appeal by defendants and third-party defendants Board of County Commissioners of Shawnee County, et al., from a prior order of the trial court sanctioning a cause of action for wrongful retaliatory discharge from employment, heretofore unrecognized in this state. Harold Murphy was employed by the Department of Labor Services (DOLS), an administrative agency of the City of Topeka. Murphy was employed in April, 1977, and allegedly sustained on-the-job injuries on June 15, 1977. Subsequent to his injury, Murphy filed a workmen’s compensation claim as authorized by the Kansas Workmen’s Compensation Act, K.S.A. 44-501 et seq. Murphy contends he was offered further employment by DOLS, through its supervisory employees, defendants Bywater, Newman and Harrison, on the condition that he withdraw his compensation claim. When Murphy refused, he claims his employment was terminated by defendants. On January 31, 1979, Murphy filed his petition in the district court alleging he was discharged in retaliation for claiming workmen’s compensation benefits against his employer, and prayed for both actual and punitive damages. Defendants filed an answer asserting the defense of governmental immunity, filed motions to dismiss and for summary judgment, and filed a third-party petition against the third-party defendants for judgment in the amount of any damage award for which defendants might subsequently be held liable under plaintiff’s petition. On July 31, 1979, the trial court denied the original motion to dismiss, hold ing that plaintiff’s petition stated a valid claim, viz., retaliatory discharge for failure to withdraw his workmen’s compensation claim. The court held: “These laws [workmen’s compensation] were a great social and economic step forward in this country and the Court is of the opinion that for an employer to intentionally and wrongfully fire a workman for filing a Workmen’s Compensation Claim and proceeding thereon, when said workman is able to perform his work, is the basis for a claim in tort and is contrary to the public policy of this state. This is not to say that an employee who is injured on the job and who has a Workmen’s Compensation Claim and is unable to perform the work as a result of the injury cannot be discharged.” The trial court later, however, by letter decision dated December 12, 1979, dismissed plaintiff’s cause of action against all defendants. The court found that plaintiff had failed to comply with the notice requirements of K.S.A. 12-105 and since that statute was applicable to any agency of a city, his action must, therefore, be dismissed. The court also held that the individual defendants were acting within the scope of their authority when they terminated the plaintiff and his action against them must likewise fail. Plaintiff claims the court erred. While stated differently and in varying detail by the parties, there are two primary issues to be decided in this appeal and cross-appeal: (1) Did the district court err in dismissing plaintiff’s lawsuit for failure to comply with K.S.A. 12-105; and (2) does a cause of action exist in this state for an employee-at-will who is terminated by his employer for filing a workmen’s compensation claim? The second question is one of first impression for this state and involves important public policy considerations. Pursuant to the Interlocal Cooperation Act (K.S.A. 12-2901 et seq.), the City of Topeka and Shawnee County entered into a contract denominated “Cooperative Agreement for the Administration of Employment and Training Services.” The contract provided, in part, as follows: “The Participating Governments agree to establish a single Comprehensive Manpower Program (hereinafter referred to as the Program), serving the Program Area. To establish this Comprehensive Program, the Participating Governments hereby agree that the County of Shawnee yields its power of attorney to the City of Topeka to apply for funding under the Comprehensive Employment and Training Act (CETA) and to establish the Topeka-Shawnee County Consortium. In doing this the County of Shawnee gives, delegates, and authorizes the City of Topeka to act on its behalf in all matters as they relate to the Consortium and CETA 1973 and its amendments except that the Consortium members reserve the right of evaluation and the decision to reprogram funds. Responsibility for program operations is vested with the City of Topeka Department of Labor Services (DOLS) by the designation of the Participating Governments, the City of Topeka, as the Administrative Arm of the Consortium. The consortium shall be the prime sponsor; the Department of Labor Services shall be the administrative unit designated to operate the program. “It shall be the responsibility of the City of Topeka to establish and maintain a city governmental agency responsible for the direct administration and operation of the Program. Said administrative unit shall be known as the City of Topeka Department of Labor Services (DOLS). “All staff Personnel employed by the Administrative Arm shall be employees of the City.” (Emphasis supplied.) The City of Topeka, in compliance with the contract provisions, enacted Ordinance No. 13990 which established the Department of Labor Services (DOLS) to function as the “administrative unit” as authorized and defined under the Comprehensive Employment and Training Act of 1973 (CETA). Although DOLS, because of its county-wide jurisdiction, may be known locally under the name of “City of Topeka-Shawnee County Department of Labor Services,” as designated by plaintiff in his petition and summons, the department is solely an agency of the City of Topeka. Plaintiff concedes that he failed to file a written claim with the city clerk of Topeka. K.S.A. 12-105, since repealed, provided: “No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within six (6) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received, the circumstances relating thereto and a demand for settlement and payment of damages . . . .” Plaintiff argues K.S.A. 12-105 does not apply to the present situation. He contends the statute only applies to cities and his suit, brought only against DOLS and its individual employees, is not against a city. His contention, insofar as DOLS is concerned, is without merit. Absent authority expressly given by statute or ordinance, an agency of a city does not have the capacity to sue or to be sued as a separate entity; the city is a necessary and indispensable party to any action filed either by or against the agency. Hubert v. Board of Public Utilities, 162 Kan. 205, 174 P.2d 1017 (1946); Seely v. Board of Public Utilities, 143 Kan. 965, 57 P.2d 471 (1936). K.S.A. 60-219 requires that any “contingently necessary” person must be joined as a party in any action and, when not joined, the district court shall order that he be made a party. In the present case the court could not order the joinder of the City of Topeka because of plaintiff’s failure to comply with the notice requirements of K.S.A. 12-105. We find that the court did not err in dismissing plaintiff’s action against DOLS. The comprehensive manpower program was jointly sponsored by the City of Topeka and Shawnee County even though it was solely administered by the City. Plaintiff may have had a cause of action against the county inasmuch as DOLS was acting as the administrative agent of both governmental bodies. The notice provisions of K.S.A. 12-105 applied only to “cities” and would not have precluded an action against Shawnee County. K.S.A. 12-105a did not expand the notice requirements to other governmental units, as argued by the defendants. Plaintiff, however, did not join the county as a party defendant in his lawsuit, and such joinder is now precluded by the statute of limitations (K.S.A. 60-513). Plaintiff would have us hold that his claim arises out of a breach of implied contract, rather than tort. K.S.A. 12-105 has application only to actions for injury to persons or property, i.e., tort actions and not to actions on contract. Stauffer v. City of Topeka, 200 Kan. 287, 436 P.2d 980 (1968). The nature of a claim, whether it sounds in contract or tort, is determined from the pleadings. In Malone v. University of Kansas Medical Center, 220 Kan. 371, 374, 522 P.2d 885 (1976), the court said: “A breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong independent of contract. Torts can, of course, be committed by parties to a contract. The question to be determined here is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged expressed agreement between the parties.” Plaintiff’s petition asserts that he was intentionally and recklessly terminated from his employment in retaliation for filing a workmen’s compensation claim. He does not claim the existence of a contract of employment covering the duration of employment. His termination did not breach any contractual obligations, either expressed or implied, presently recognized because as an employee-at-will his employment could be terminated at any time, with or without cause. If plaintiff has alleged a sufficient cause of action herein, as will be later discussed, it arises from a duty imposed by law based upon public policy preventing an employer from wrongfully discharging an employee in retaliation for filing a workmen’s compensation claim. Plaintiff’s action clearly sounds in tort, and the mere existence of a contractual relationship between the parties does not change the nature of his action. In Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 509, 470 P.2d 797 (1970), the court quoted the rule from 52 Am. Jur., Torts § 26, p. 379: “ ‘Where a contractual relationship exists between persons and at the same time a duty is imposed by or arises out of the circumstances surrounding or attending the transaction, the breach of the duty is a tort.’ ” This brings us to the individual defendants, Bywater, Newman and Harrison. They first assert that the notice requirements of K.S.A. 12-105 are also applicable to a tort action against individual officers and employees of a city. A similar assertion was rejected in Bradford v. Mahan, 219 Kan. 450, 453, 548 P.2d 1223 (1976), wherein the court held: “The notice requirements of K.S.A. 12-105 apply only to actions for injury to person or property against a municipality and are not a condition precedent to bringing an action against a police officer, even though said officer was engaged in the performance of a governmental function.” Even though Bradford involved an action against police officers as opposed to administrative officers in the instant case, we see no reason to draw a distinction between classes of city employees. K.S.A. 12-105 is clearly intended to apply only to a city and not to its individual officers and employees. The individual defendants also argue that the doctrine of governmental immunity precludes plaintiff’s cause of action. They contend that the City of Topeka is immune from suit for negligence and misconduct of its officers and employees while engaged in the performance of their duties and that they should share in that immunity. Defendants are correct in stating that individual officers and employees of an immune governmental entity share that immunity when acting within the scope of their employment. Such was the common-law rule which has been incorporated into the Kansas Tort Claims Act (K.S.A. 1980 Supp. 75-6104). However, inasmuch as we have already held that plaintiff’s action against both the City and its agency must fail because of the notice requirements of K.S.A. 12-105, it is not now necessary for us to determine whether the City of Topeka, along with DOLS, were afforded protection against plaintiff’s cause of action under the theory of governmental immunity. Even assuming arguendo that such immunity did exist, that immunity would not extend to the individual defendants based upon the allegations of plaintiff’s petition. The common-law rule recognized an exception to the immunity of public officers: “The immunity of the sovereign from suit does not protect public officers from personal liability for their wrongful acts in excess of their official authority .. . since the acts of officials which are not legally authorized or which exceed or abuse their authority or discretion are not acts of the state . . . 72 Am. Jur. 2d, States, Etc. § 115, p. 504. This exception has been recognized in Kansas in cases holding that officers were not liable “in the absence of malice,” Kretchmar v. City of Atchison, 133 Kan. 198, 204, 299 Pac. 621 (1931); “in the absence of malice, oppression in office or willful misconduct,” Hicks v. Davis, 100 Kan. 4, Syl., 163 Pac. 799 (1917); for acts unless “wholly outside their jurisdiction,” Evans v. Marsh, 158 Kan. 43, 47, 145 P.2d 140 (1944); or “in the absence of malice, oppression, wantonness, or willful misconduct,” Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, Syl. ¶ 7, 536 P.2d 54 (1975). It is not for this court to determine whether the individual defendants have been guilty of any of the exceptions noted above. Plaintiff has, however, alleged willful and wanton misconduct and the allegations of his petition, on a motion to dismiss, must be taken in the light most favorable to him. The question always for the trial court’s determination is “whether in the light most favorable to plaintiff, and with every doubt resolved in his favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.” Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, Syl. ¶ 2, 479 P.2d 875 (1971). We find the trial court erred in dismissing plaintiff’s action as to defendants Bywater, Newman and Harrison. Since these defendants are sued as individuals acting in abuse of their authority, the City is neither an indispensable nor proper party to plaintiff’s action against them. We now turn to the second issue: Does a valid cause of action exist? To so hold, we must find that the discharge of an employee-at-will in retaliation for filing a claim under the Workmen’s Compensation Act is a cause for which an action in tort may lie in Kansas. Cross-appellants argue that few jurisdictions have so held, in what they characterize as a “small band of renegade opinions.” It is settled law in Kansas “that in the absence of a contract, expressed or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party.” Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 546, 545 P.2d 312 (1976). The Supreme Court of Indiana, in Frampton v. Central Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973), supplied the first judicial recognition that discharge of an employee in retaliation for filing a workmen’s compensation claim is actionable at law and may support an award of both actual and punitive damages. Commenting on the case, Vol. 2A Larson’s Workmen’s Compensation Law § 68.36, p. 68 (1980 Supp.), states: “It is odd that such a decision was so long in coming. Perhaps the explanation may lie in the fact that the conduct involved is so contemptible that a [sic] few modern employers would be willing to risk the opprobrium of being found in such a posture.” We would add that such instances may also be rare because employers have simply assumed such conduct was either illegal, actionable or both. Cross-appellants adopt the Illinois Fourth District Court of Appeal’s argument in Kelsay v. Motorola, Inc., 51 Ill. App. 3d 1016, 366 N.E.2d 1141 (1977), which denied recognition to a cause of action for retaliatory discharge. As they note, however, the Illinois Supreme Court reversed that decision (74 Ill. 2d 172, 384 N.E.2d 353 [1978]), holding that the protection afforded by workmen’s compensation laws was in furtherance of sound public policy, and an employee had a civil tort action against an employer who discharged her for filing a claim. We believe the public policy argument has merit. The Workmen’s Compensation Act provides efficient remedies and protection for employees, and is designed to promote the welfare of the people in this state. It is the exclusive remedy afforded the injured employee, regardless of the nature of the employer’s negligence. To allow an employer to coerce employees in the free exercise of their rights under the act would substantially subvert the purpose of the act. We have given careful consideration to cross-appellants’ argument that the Kansas legislature has twice considered amendments to the Workmen’s Compensation Act which specifically would have allowed the type of action here affirmed and, by failure to adopt those amendments, it has clearly expressed its intention that such an action should not be recognized in this state. Cross-appellants’ argument is two-pronged. First, it is argued that the failure to adopt the amendments (Senate Bill No. 153 in 1961 and House Bill No. 221 in 1963) is persuasive legislative history as to the legislature’s intention. We disagree. While failure to enact may in some cases be a strong indication of legislative intent, it is not the most persuasive, as the legislature may positively declare that such actions shall not lie in this state. In the case of the two proposed amendments, we have before us no evidence of the legislature’s reasoning in failing to adopt—no arguments, no committee hearing records, no statements of proponents or opponents. Both proposed amendments were lengthy compilations, going considerably farther than simply allowing the cause of action here considered. The proposals may well have failed for reasons altogether apart from the asserted cause of action. Simple evidence of legislative inaction rather than action cannot defeat the public policy considerations we find here controlling. The second prong of the legislative inaction argument by cross-appellants attacks the district court’s jurisdiction in this matter. K.S.A. 1980 Supp. 20-301 grants the district court jurisdiction over “all matters, both civil and criminal, unless otherwise provided by law . . . .” Cross-appellants argue that by its consideration of the above-mentioned amendments, and its failure to adopt the same, the legislature has “taken specific and direct action by declining to enact the statutory cause of action,” and has thus “otherwise provided by law” deprived the district court of jurisdiction. This argument, however, turns the plain meaning of the statutory language completely around. For the legislature to fail to act on a matter is clearly not the same as for it to take positive action to exclude jurisdiction. For the reasons stated herein, we find that plaintiff has alleged a valid cause of action for retaliatory discharge and his petition as to the defendants Bywater, Newman and Harrison should not have been dismissed by the district court. However, inasmuch as this is the first recognition of such a cause by a Kansas court of appellate jurisdiction, we believe the allowance of punitive damages in this case would be extremely unjust. One of the primary purposes for the imposition of punitive damages is to deter like wrongs from being committed in the future. Until the present pronouncement, it was not clearly known to defendants, or any other employer in this state, that a retaliatory discharge would give rise to an action for damages. Therefore, defendants’ conduct in the present case does not justify the imposition of punitive damages. We reverse and remand for action consistent with this opinion, with the proviso that, in the event plaintiff prevails in his claim against the individual defendants, no punitive damages be awarded. Punitive damages may, however, be awarded in any appropriate case that arises subsequent to this opinion.	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Fromme, J.: This is a review of an administrative order suspending the broker’s license of Marvin M. Pottratz for a period of six months. The Kansas Real Estate Commission originally revoked the license permanently. Review by the district court was under K.S.A. 58-3017. The court held that some of the charges were not supported by substantial evidence. The case was remanded to the Commission for reconsideration of the penalty to be imposed. The penalty was reduced to a six month suspension. This change was approved by the district court. Appeal to this court followed. SCOPE OF REVIEW We find no Kansas cases in which the scope of review in the district court of an order of the Kansas Real Estate Commission has been determined. What is the scope of review authorized by K.S.A. 58-3017 of an order revoking or suspending a real estate broker’s license? This statute reads: “Such ruling or order of the Kansas real estate commission shall be final when in favor of the respondent. If against the respondent, or in any way to the respondent’s injury or prejudice, he or she may, at any time prior to the date fixed by the commission in its notice as the date the ruling or order shall become effective, appeal from such ruling or order. Any such appeal shall be made to the district court of the county in which the respondent resides, or to the district court of Shawnee county, by serving upon the director of the Kansas real estate commission written notice of such appeal, together with reasons for such appeal, and by filing a good and sufficient bond in the office of the commission to secure the costs of the appeal, unless by reason of poverty the respondent is unable to give security for costs, which facts shall be shown by affidavit filed in the office of the commission. Thereupon the appeal shall be deemed perfected. “Within thirty days after service of said notice of appeal, the commission shall file with the clerk of the designated court a copy of the complaint, if any, and a copy of the findings of fact and rulings or order of the commission appealed from, duly certified under the seal of the commission. Notice of the filing of the said documents shall be forthwith given by the director of the commission to the respondent and to the party, or parties, if any, upon whose complaint the proceedings before the commission were instituted. The issues shall be tried in the district court de novo. In all proceedings upon such appeal the attorney general, or his or her deputy, or other attorney chosen by the commission shall appear for and represent the commission.” Emphasis supplied. It is noted that under this statute the Commission is directed to file with the clerk of the court (1) a copy of the complaint, and (2) a copy of the findings of fact and rulings or order of the commission. No provision in this law, as it appeared when these proceedings took place, required a transcript of evidence to be filed in the district court. K.S.A. 58-3016(b) relating to procedure states: “The case against the applicant or licensee shall be presented by the attorney for the commission. The applicant or licensee shall be entitled to examine either in person or by counsel any and all persons complaining against the applicant, and all other witnesses whose testimony is relied upon to substantiate the charge made. The applicant shall also be entitled to present such evidence, oral and written, as he or she may see fit and as may be pertinent to the inquiry. At such hearing all witnesses shall be duly sworn by the director of the Kansas real estate commission, or by any member of the commission.” Appellant Pottratz contends that on appeal the district court is directed by 58-3017 to try the issues in the district court de novo, the issues being the proof of charges filed against the appellant. The commission on the other hand argues the scope of review is that of any administrative agency, which is traditionally limited to whether (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its legal authority. In Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 450, 436 P.2d 828, 28 A.L.R.3d 472 (1968), the appeal was from revocation of a medical license. The governing statute on scope of review was K.S.A. 65-2848 (Corrick) which provided that a transcript of pleadings before the board should be filed with the district court. The statute further provided that trial upon appeal “shall be had upon the issues joined as presented upon the evidence and exhibits introduced before the board.” The Supreme Court held the review was limited nevertheless to the traditional scope of review for administrative orders. In Foote, the court states the business of licensing is regarded as an administrative function. 200 Kan. at 449. In Kansas State Board of Healing Arts v. Acker, 228 Kan. 145, 612 P.2d 610 (1980), the appeal to the district court was also under K.S.A. 65-2848 and the scope of review limited the hearing to the traditional scope of review for administrative orders. See also Copeland v. Kansas State Board of Examiners of Optometry, 213 Kan. 741, 518 P.2d 377 (1974), where it was held that Copeland was not entitled to a trial de novo. In Kansas State Board of Nursing v. Burkman, 216 Kan. 187, Syl. ¶ 1, 531 P.2d 122 (1975), this same scope of review was applied by the district court, and the district court’s order was upheld in a finding that the order of the board of nursing was arbitrary and unreasonable. In the latter case review of the administrative order was authorized by K.S.A. 65-1121(b). In Foote, Acker, Copeland and Burkman, suspension and revocation of licenses by regulating agencies were considered and held to be administrative functions, and judicial review of such cases is generally limited to determining whether the administrative order was unlawful, arbitrary or unreasonable. We are of the opinion that a limited scope of review applies in the present case. Therefore, under the provisions of K.S.A. 58-3017, relating to appeals to the district court from orders of the Kansas Real Estate Commission suspending or revoking a license, the district court is restricted to considering whether (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority. For the purpose of determining these three considerations the district court may hear additional witnesses and consider the evidence before the Commission. PROCEDURAL DEFECTS Appellant complains that the Board’s notice of hearing of October 11, 1977, was legally insufficient because of what is referred to as (1) general lack of factual statement to identify the specific charges, (2) failure to sufficiently advise appellant of the serious nature of the proceeding and the need for counsel, and (3) total lack of findings to support charges. As to the first two alleged procedural shortcomings we see no lack of compliance with the requirements of procedural due process. The notice of hearing specifically referred to the transaction between Pottratz as seller and the Domes as buyers. It detailed the violations charged and cited the sections of the statute covering the type of misconduct charged. K.S.A. 58-3015(a)(1), (a)(2), (a)(16), (a)(17). K.S.A. 58-3022(a), referring to trust accounts, was identified in support of the charges. The notice of hearing also set forth the transaction between the Wells, as sellers, and the Coopers, as buyers. Here a shortage of $1,300.00 in the broker’s trust account was alleged. The notice also alleged a violation of K.A.R. 86-3-18(e) which requires brokers to maintain a ledger on receipts and disbursements for each transaction. The notice was sufficient to advise Pottratz of the charges. However, the failure of the Commission to set forth findings of fact is another matter. Findings of fact and rulings are required to be made in writing by both K.S.A. 58-3016(d) and K.S.A. 58-3017. The order of the Commission, omitting the heading and the recitation of the formal appearances of the parties, reads: “THEREUPON, the matters set forth in the Notice of Hearing were duly inquired into by the Commission and the Commission heard the evidence of the witness. “THEREUPON, the Commission, being duly and fully advised in the premises and having heard and considered the evidence adduced, and having examined the papers and exhibits filed herein finds the respondent licensee, Marvin M. Pottratz, in violation of the Kansas Real Estate Brokers’ License Law, Kansas Statutes Annotated, Section 58-3015(a), (1), (2), (16), (17) and Section 58-3022(a) and 86-3-18 of the Rules & Regulations of the Commission. “IT IS THEREFORE ORDERED by the Commission that the Real Estate Broker’s License of the respondent licensee, Marvin M. Pottratz, be revoked; that upon the signing of this Order by the members of the Commission concurring in the foregoing findings, rulings, and Order, this Order shall be filed in the Office of the Commission; that the date of filing shall be noted hereon by the Director of the Kansas Real Estate Commission; that the effective date of this Order shall be thirty one days after such date of filing, which effective date shall likewise be noted hereon by the Kansas Real Estate Commission. “IT IS FURTHER ORDERED that immediately upon such filing the respondent licensee shall be notified in writing of this Order by mailing of the same to the respondent licensee by certified mail.” The foregoing is devoid of meaningful findings of fact. Specific findings of fact by an administrative agency are required and may be indispensable to a valid decision when a statute or rule requires them. Kansas State Board of Healing Arts v. Acker, 228 Kan. 145, Syl. ¶ 7. In Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 230-31, 440 P.2d 660 (1968), the order was reversed and the case was remanded to the State Corporation Commission because of failure to make basic findings of fact: “No method of insuring against arbitrary action has yet been found, but the nearest approach to it is to require that findings of fact be made.” 201 Kan. at 231-32. The Commission failed in the present case to make the-findings of fact required by the statutes. SUPPORTING EVIDENCE The district court determined that Pottratz was guilty of two infractions of K.S.A. 58-3015. The first was an alleged infraction of K.S.A. 58-3015(a)(1): “Making any material misrepresentations; . . .” The second was an alleged infraction of K.S.A. 58-3015(a)(17): “[P]erforming any act or conduct whether of the same or a different character hereinabove specified, which constitutes or demonstrates bad faith, incompetence or untrustworthiness, or dishonest, fraudulent or improper dealings; . . .” The first alleged infraction concerned a real estate contract between Marvin M. Pottratz as seller, and Fred F. Dome and Dorothy M. Dome as buyers. The property was located at 2029 South 14th Street, Kansas City, Kansas. The contract recited a $3,000.00 down payment on a total purchase price of $15,000.00. The down payment was explained in a separate sheet or addendum to the contract bearing the same date as that of the contract, June 8, 1977. In the addendum signed by Pottratz and the Domes it was agreed: “Marvin M. Pottratz is to pay the Buyers, Mr. and Mrs. Dome, $2,000.00 for making the necessary improvements and repairs. This $2,000.00 is to be applied to the Domes’ down payment.” The sale was subject to the buyers securing and qualifying for a FHA loan in the amount of $12,000.00 for a term of 30 years. The buyers were not able to obtain the FHA loan so they requested and were granted permission by Pottratz to seek a loan elsewhere. The Domes went to the Rosedale State Bank and Trust Company for a loan. They gave their copy of the contract to the bank. The addendum was not attached. Sometime before the loan was approved Sherman Rush, the inspector for the Commission, checked the Pottratz trust account. The $2,000.00 for work equity was not in the account and the account was short by that amount. Since Pottratz was selling the property he felt entitled to the down payment. Mr. Rush called the Rosedale bank and advised it of the apparent shortage in the down payment. The vice-president of the bank called Pottratz who advised him of the work equity which the Domes had earned. The bank further assured itself by personal inspection that the work had been done and they completed the loan to the Domes. The second alleged infraction concerned a real estate contract between Mr. and Mrs. Wells as sellers, and Mr. and Mrs. Cooper as buyers. The property was located at 2308 Merriam Lane, Kansas City, Kansas. The contract recited a $3,000.00 down payment on a total purchase price of $29,250.00. The down payment was explained in a separate sheet or addendum to the contract bearing the same date as that of the contract, June 2, 1977. In the addendum signed by the Coopers and Pottratz it was acknowledged that Pottratz had purchased a $1,300.00 equity of the Coopers in another house at 4736 Ottawa, Kansas City, Kansas, and the $1,300.00 to be paid by Pottratz was to be part of the $3,000.00 down payment on the contract to purchase the property at 2308 Merriam Lane. The Coopers wanted to retain their former home at 4736 Ottawa until the purchase of the house at 2308 Merriam Lane did go through. The addendum provided that it was to take effect upon approval of the loan on the new house. When Sherman Rush, the inspector for the Commission, checked the Pottratz trust account, the account was short $1,300.00 because Pottratz had held up the $1,300.00 payment pending the approval of the loan to the Coopers. In both of these transactions it is interesting to note that all parties to the real estate contracts were fully advised of the arrangements made for down payments and no complaints originated with any of those who were dealing with the property. The complaints against Pottratz were made solely by the Commission. The evidence at the hearing was uncontradicted that Mr. and Mrs. Wells, the sellers, and Mr. and Mrs. Cooper, the buyers, were completely advised of the true facts as set forth in the addendum concerning the origin and nature of the $3,000.00 down payment. The parties understood that the purchase of property was subject to loan approval by Missouri Valley Mortgage Company. The loan was not approved and the purchase was not completed. The only mortgage company to whom Pottratz submitted copies of either of these sales agreements was Missouri Valley Mortgage Company. The written addendum covering the down payment was introduced in evidence and it is uncontradicted the addendum was attached to the sale agreement when it was delivered to Missouri Valley. Under these uncontroverted facts no material misrepresentations were established by the Commission in the Wells-Cooper sale. All parties were fully advised of the source and nature of the down payment. No one is complaining, no one was misled, and the sale agreement by prearrangement was rescinded by the parties when loan approval was not obtained. K.S.A. 58-3015(a)(l) was not violated by Pottratz in the Wells-Cooper sale. The evidence surrounding the Domes sale was uncontradicted at the hearing. The secretary and office manager of Pottratz testified as to the addendum covering the work equity. The addendum was admitted in evidence. Pottratz took no part in obtaining the loan for the Domes from the Rosedale bank. Under these uncontroverted facts no material misrepresentations were established by the Commission in the Pottratz-Domes sale. All parties were fully advised of the source and nature of the down payment. No one is complaining, no one was misled as to any material fact, and the Rosedale bank completed the loan knowing full well the down payment included a $2,000.00 work equity. K.S.A. 58-3015(a)(l) was not violated by Pottratz in the sale to the Domes. We turn next to the alleged violation of K.S.A. 58-3015(a)(17). The specific acts constituting the violation were not set forth in the findings. The statute authorizes suspension or revocation of a real estate broker’s license for performing any act which constitutes or demonstrates bad faith, incompetence, untrustworthiness, dishonesty or fraudulent or improper dealings. Under the uncontroverted evidence there is nothing which demonstrates any of such actions by Pottratz with regard to these two sales. No one was misled or injured in any way. There was no evidence introduced which in any way would indicate that Mr. Pottratz was guilty of bad faith, incompetence, untrustworthiness, dishonesty or fraudulent or improper dealings in this matter. The use of an addendum to explain the source and nature of a down payment may not be the best practice in the eyes of the Kansas Real Estate Commission but it is not a practice prohibited by either the statutes or the regulations of the Commission. CONCLUSION The district court found: “(10) The Commission’s order of revocation was based upon a finding by the Commission that Mr. Pottratz had violated the Kansas Real Estate Brokers’ License Law, Kansas Statutes Annotated, Sec. 58-3015(a), (1), (2), (16), (17) and Section 58-3022(a) and 86-3-18 of the Rules and Regulations of the Commission. In fact, the Commission now concedes there was no evidence to support the violation of K.S.A. [58-] 3015(a)(2), (16), and Section 58-3022(a) and Rule 86-3-18.” Emphasis supplied. After examining the record we agree with the district court that there was no substantial evidence to support violations of K.S.A. 58-3015(a)(2), (16), and Section 58-3022(a) and Rule 86-3-18 of the Kansas Real Estate Commission relating to trust account records. We further find there was no substantial evidence to support violations of K.S.A. 58-3015(a)(1) and (17) relating to material misrepresentations, bad faith, incompetence, untrustworthiness, dishonesty or fraudulent or improper dealings in either of the transactions. Therefore, under the scope of review authorized we reverse the orders of both the district court and the real estate commission, which orders suspended the real estate broker’s license of Marvin M. Pottratz for a period of six months. The case is remanded to the district court with directions to order the Commission to reinstate the appellant’s real estate broker’s license.	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Fromme, J.: This action was brought in the district court to determine the reasonableness of the order of the Board of Zoning Appeals of the City of Prairie Village, Kansas, in approving the issuance of a building permit to The McDonald’s Corporation for the construction of a restaurant at the northeast corner of 83rd Street and Somerset Drive. This action is authorized by K.S.A. 12-715 which in pertinent part reads: “Any person, official or governmental agency dissatisfied with any order or determination of said board [city board of zoning appeals] may bring an action in the district court of the county in which such city is located to determine the reasonableness of any such order or determination.” Plaintiffs-appellants are residents in the vicinity of the proposed restaurant. They object to the issuance of the building permit because of anticipated problems with traffic and litter which they allege will result from the proposed McDonald restaurant, if it is built and operated. The location for the restaurant is zoned C-2, general business district. A restaurant is a lawful business to be operated in a C-2 zoned district. However, a drive-up or drive-in establishment is not permitted in C-2 zoning. A drive-in establishment is defined in Section 19.02.330 of the Prairie Village zoning code as: “ ‘Drive-in establishment’ means any restaurant, financial institution or product vending enterprise where the patron does not enter and remain within a building during the transaction of his business. Food vending establishments where the food is not normally consumed within a building or where facilities are provided for eating outside a building, shall be included in this definition. (Ord. 1303 § 2 (part), 1971.)” The reasonableness of the action of the Board of Zoning Appeals primarily depends on whether the restaurant proposed and now constructed by The McDonald Corporation is a “drive-in establishment” within the above definition. If it is a drive-in establishment, the use is prohibited under C-2 zoning and the order permitting such construction and use would be unreasonable. If it is not a drive-in restaurant or establishment as contemplated in the Prairie Village zoning code section 19.02.330, then the construction and use is proper as a restaurant and would be reasonable. Before considering this primary question there are several procedural matters raised by appellants to be disposed of before we can return to the question. When the action was filed in the district court, appellants asked for and obtained a temporary restraining order against construction. There was a mix-up in granting the order restraining construction of the restaurant because The McDonald Corporation had not been made a party to the original action when the application was filed. Thereafter McDonald’s sought and received permission to intervene. At this time the issue had been joined on the petition as to the reasonableness of the action of the Board of Zoning Appeals in approving the issuance of the permit. Motions to dismiss the temporary restraining order and to dismiss plaintiffs’ petition were pending. The entire matter was taken under advisement and plaintiffs were given two weeks to file whatever response or brief they desired. The plaintiffs question the action of the court in deciding the case by dismissing their petition. As shown by the partial transcript of proceedings, when the judge took the case under advisement he requested and apparently received a copy of the zoning ordinances, which contained the information on C-2 and C-3 zoning, and various other materials. Although the partial transcript does not indicate whether the memorandum decision of the Board of Zoning Appeals, the minutes of the meetings of the City Planning Commission, or the minutes of the Board of Zoning Appeals were formally introduced and admitted by the court as part of the record, these are a part of the record before this court (R. Vol. III). On reading the decision of the district court, it becomes apparent that these were considered by the court. In addition there is a letter written by the judge to the clerk of the court and made a part of the court file in which the judge states he did receive all these materials and did consider them in his deliberations. It seems clear the motion to dismiss was converted into a motion for summary judgment. K.S.A. 60-212(b) provides that when, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256. See Collier v. Operating Engineers Local Union No. 101, 228 Kan. 52, Syl. ¶ 1, 612 P.2d 150 (1980). Plaintiffs complain that they were not given adequate opportunity to present material in opposition. They do not divulge what they desired to submit. The plaintiffs were given two weeks to submit a brief and any other pertinent material. They did file a brief in opposition but they failed to object to the court’s procedure at trial level. Regardless of the procedural confusion in this case, the question to be decided was whether the Board’s decision was reasonable. See K.S.A. 12-715. That issue was submitted to the court for decision. The court requested, received, and considered matters outside the pleadings. The appellants had reasonable opportunity to submit additional evidence, authorities, arguments, and objections in the trial court. There were no material facts in dispute. The court determined that the action of the Board of Zoning Appeals was reasonable. Once the trial court made that determination, it was merely a matter of semantics whether the court should have dismissed the petition or granted judgment in favor of the city. Anyway, we now have and will decide the question on appeal. Before considering the primary question we should re-examine the scope of review in a zoning case. The rules are concisely stated in Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980): “(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning. “(2) The district court’s power is limited to determining (a) the lawfulness of the action taken, and (b) the reasonableness of such action. “(3) There is a presumption that the zoning authority acted reasonably. “(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence. “(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence. “(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate. “(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority. “(8) An appellate court must make the same review of the zoning authority’s action as did the district court.” With these rules in mind we turn to the primary question on appeal — was the building permit issued and approved in violation of restrictions imposed on C-2 zoning because it permitted construction of a drive-in establishment? If so, the action of the Board was unreasonable and the decision of the district court must be reversed. Based upon the record of proceedings before the City Planning Commission and City Council, and upon other background material adduced, the Board of Zoning Appeals made the following findings and conclusions: “1. The site of the proposed construction is presently zoned as zoning district C-2, general business district and has been so zoned since 1962; “2. A restaurant is a proper building within a C-2 district; “3. The proposed McDonald’s is a restaurant within the provisions of the Prairie Village Municipal Code, Section 19.02.720. “4. Performance standards, pursuant to Section 19.22.020 of the Code, for zoning district C-2 provides: Drive-up or drive-in service may be provided, except where ready-to-eat food, including beverages, or where cereal malt beverages in any form are served, dispensed or otherwise change hands. “5. Drive-in establishment is defined in Section 19.02.330 of the Prairie Village Code as: any restaurant, financial institution or product vending enterprise where the patron does not enter and remain within a building during the transaction of his business. Food vending establishments where the food is not normally consumed within a building or where facilities are provided for eating outside a building, shall be included in this definition. “6. The proposed building for McDonald’s as finally approved, contains no drive-up window or facilities; “7. The proposed building for McDonald’s as finally approved, contains no facilities for eating outside the building and on the premises; “8. All food at the proposed building will be prepared and served to customers within the building; “9. The proposed building for McDonald’s as finally approved, contains inside seating and tables to accommodate 122 persons; and “10. McDonald’s Corporation estimated that a minimum of 75% of the customers would consume the food within the building at the seats and tables provided.” Based upon these facts found by the Board and upon the evidence previously considered by the city authorities, we conclude the business establishment constructed by The McDonald Corporation is a restaurant and not a drive-in. A drive-in establishment is defined in the Prairie Village zoning code as a restaurant where the patron does not enter and remain within a building during the transaction of his business. The term restaurant is defined in the Prairie Village zoning code as a building wherein food is prepared and served in ready-to-eat form to the public for human consumption. Code section 19.02.720. The proposed building for which the permit was issued satisfied the requirements of the zoning code. The building is designed, arranged, and intended for use as a restaurant; that is, a building where food is prepared and served in ready-to-eat form to the public for human consumption. The structure has no outside eating facilities and has no drive-up window service. The patron must leave the car, enter and remain in the building for the transaction of business. The food is prepared and is served within the building. Therefore, the structure is not a drive-in restaurant as that term is defined in the Prairie Village zoning code. This conclusion is made quite clear by comparing other provisions of this same zoning code which are made applicable to a zoning district C-3 in which drive-in service is permitted. Under code section 19.22.010 the code permits “Drive-in restaurants, refreshment stands, ice cream shops, etc., where persons are served in automobiles” in a C-3 zoning district. Emphasis supplied. In contrast, code section 19.02.720 defines a restaurant as: “ ‘Restaurant’ means a building wherein food is prepared and served in ready-to-eat form to the public for human consumption. ‘Restaurant’ includes, but is not limited to, cafe, cafeteria, grill, pizza parlor, diner, snack shop, hamburger shop and steakhouse.” The present building of The McDonald’s Corporation is designed and intended as a restaurant where food is prepared and served inside the building. No food will be served to persons in an automobile. The restaurant provides substantial seating and tables within the building. It is estimated by officers of the corporation that over 75% of the patrons will eat within the building. The building contains substantial seating. The seating capacity is for 122 persons and we conclude the food will be consumed normally within the building. We turn now to a few cases from other states to assist in our final decision. In Burger King of St. Louis, Inc., v. Weisz, 444 S.W.2d 517 (Mo. App. 1969), Burger King applied for a permit to construct a building for use as a restaurant. Drive-in restaurants were excluded in the proposed location, restaurants were not. The Missouri Court of Appeals looked to the specific building being proposed and concluded it had no “drive-in” features. Drive-in was defined as a place laid out and equipped so as to allow its patrons to be served or accommodated while remaining in their automobiles. Burger King’s proposed building called for a seating capacity of 70 people. Off-street parking for 40 cars was proposed. There were to be no car-hops or take-out windows; no curb-side service. A limited menu of prepared food would be offered its customers. Patrons could eat inside or take their order away from the building. An attendant would be available to seat people and clean the premises. While it was not a full-service restaurant offering table service with linen, china and silver, this did not change its essential method and manner of operation so that it could be described as a drive-in. In Ederer v. Bd. of Z. App., 18 Ohio Misc. 143, 248 N.E.2d 234 (1969), the Ohio court held that a franchise eating establishment was a “restaurant” within a permitted land use under a zoning ordinance, as opposed to a drive-in, which was not permitted. The proposed establishment would provide facilities inside the building for 72 persons to sit and consume food and drink. There would be no “car-hops,” and no trays would be provided for persons to convey food and drink to their automobiles for outside consumption. It would be necessary for a patron to enter the building in order to be served. Under these facts it was held to be a restaurant, not a drive-in. See cases in Annot., Zoning Regulations—Restaurants, 82 A.L.R.2d 989, § 3. 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Spencer, J.: This is a direct appeal from conviction of attempted burglary (K.S.A. 21-3301, 21-3715). Initially it is argued the trial court erred in denying defendant’s motion for acquittal under K.S.A. 22-3419. We have reviewed the record on appeal and, although the evidence against defendant was primarily circumstantial, we find it to be such that reasonable minds might fairly conclude guilt beyond a reasonable doubt. Accordingly, it was not error to deny the motion for acquittal. See State v. White & Stewart, 225 Kan. 87, 587 P.2d 1259 (1978); State v. Colbert, 221 Kan. 203, 557 P.2d 1235 (1976). It is next argued it was error not to instruct on the offense of criminal trespass, K.S.A. 1980 Supp. 21-3721. This issue was considered and resolved contrary to defendant’s position in State v. Williams, 220 Kan. 610, 556 P.2d 184 (1976), wherein it was held: “Criminal trespass as defined in K.S.A. 21-3721 includes a notice requirement under either paragraph (a) or (b) as an additional element of the crime, which element is not a necessary element of aggravated burglary.” Syl. ¶ 3. “The crime of criminal trespass is a separate and distinct crime and is not a crime necessarily proved if the crime of burglary is proved.” Syl. ¶ 4. Finally, error is asserted in sentencing defendant for a term to “run consecutive to any parole violation and consecutive to any sentence which may be imposed upon the defendant in any pending case.” In this we must agree. The crime with which defendant was charged occurred December 4, 1979. The jury returned its verdict and defendant was adjudged guilty of attempted burglary on February 26, 1980. Sentence was imposed April 15, 1980. From the record before us it appears defendant was then on parole from a sentence imposed in 1978, and may also have been involved as defendant in at least one other case then pending. By definition, the term “consecutive sentences” means sentences “following in a train, succeeding one another in a regular order, with an uninterrupted course of succession, and having no interval or break.” 21 Am. Jur. 2d, Criminal Law § 547. A sentence should be definite and certain, and not dependent upon any contingency or condition. It should be stated with sufficient certainty to permit its proper execution. 21 Am. Tur. 2d, Criminal Law § 534. As it appears defendant in this case was convicted and sentenced for a crime committed while on parole from a sentence previously imposed, it was within the discretionary power of the trial court to direct that the two sentences then in existence run consecutively. K.S.A. 1980 Supp. 21-4608(2). However, a sentence may not follow or succeed without interval or break that which does not exist. The court in this case had no authority to direct the sentence here imposed run consecutively to a sentence which might thereafter be imposed in a case then pending. The judgment of conviction is affirmed, but the sentence is vacated and this case is remanded for imposition of new sentence.	[ -48, -30, -35, -65, 11, 96, 43, -68, 97, -43, -14, 83, -27, -58, 20, 121, 51, 127, 85, 121, -43, -73, 55, 75, -74, -13, 83, -43, -73, 79, -4, -2, 8, 112, -62, 117, 6, 10, 101, 92, -114, -121, -72, -12, -111, 0, 44, 106, 60, 14, -79, -98, -77, 42, 16, -62, -55, 40, 75, 61, -46, -71, -69, 13, 110, 22, -93, -123, -69, -123, 112, 52, -100, 49, 0, -24, 115, -122, -122, 116, 111, 27, -124, 102, 98, 33, 93, -17, -88, -127, 30, 115, -83, 39, -71, 80, 73, 45, -105, -3, 52, 54, 38, -8, -25, 20, 57, 108, -126, -49, -80, -111, -51, 52, 6, -71, -29, 37, 16, 49, -49, -26, 92, 119, 114, -101, -114, -108 ]
Fromme, J.: This is an appeal from an eminent domain proceeding initiated by the city of Westwood. M & M Oil Company, Inc., a lessee of the property, appeals from an order disallowing its expenses in the proceeding. The city of Westwood filed a petition on January 16, 1980, in the District Court of Johnson County, Kansas seeking to exercise the power of eminent domain per K.S.A. 26-201 et seq., over land commonly referred to as 47th and Rainbow Blvd. Defendants named in the petition were Juliette M. Finch, Suzanne Finch a/k/a Suzanne R. Finch, Phillips Petroleum Company, and M & M Oil Company, Inc. A motion to amend the petition was granted on February 4, 1980, and European Motors, Inc., Bob Cole, Pat Griggs, Paul Griggs, and Steve Griggs were added as defendants. Some of the above-named defendants were fee owners and some were lessees. We do not know who were owners from the record, but we do know the appellant herein, M & M Oil Company, Inc., holds a leasehold interest in the property until December 1, 1983, with an option to purchase. M & M hired a real estate appraiser and attorneys to represent its interests in the proceeding. The merits of the matter were never heard. No court appraisers were appointed. The right of the city of Westwood to condemn the real estate was never determined. By an ex parte order the action was dismissed on oral motion of the city. The city of Westwood entered into an agreement with the owners of the property and purchased the property, subject to defendant’s leasehold interest. This was accomplished at some point in time prior to the dismissal of the action. M & M Oil Company, Inc. then filed a motion for allowance of reasonable expenses pursuant to K.S.A. 26-507(b). A hearing on said motion was held and the motion was denied by the court. M & M timely filed a notice of appeal. The statute allowing expenses in eminent domain proceedings is as follows: “(a) Payment of award; vesting of rights. If the plaintiff desires to continue with the proceeding as to particular tracts it shall, within thirty (30) days from the time the appraisers’ report is filed pay to the clerk of the district court the amount of the appraisers’ award as to those particular tracts and court costs accrued to date, including appraisers’ fees. Such payment shall be without prejudice to plaintiff’s right to appeal from the appraisers’ award. Upon such payment being made the title, easement or interest appropriated in the land condemned shall thereupon immediately vest in the plaintiff, and it shall be entitled to the immediate possession of the land to the extent necessary for the purpose for which taken and consistent with the title, easement or interest condemned. The plaintiff shall be entitled to all the remedies provided by law for the securing of such possession. “(b) Abandonment. If the plaintiff does not make the payment prescribed in subsection (a) hereof for any of the tracts described in the petition, within thirty (30) days, from the time the appraisers’ report is filed, the condemnation is abandoned as to those tracts, and judgment for costs, including the appraisers’ fees together with judgment in favor of the defendant for his reasonable expenses incurred in defense of the action, shall be entered against the plaintiff. After such payment is made by the plaintiff to the clerk of the court, as provided in subsection (a) hereof, the proceedings as to those tracts for which payment has been made can only be abandoned by the mutual consent of the plaintiff and the parties interested in the award.” K.S.A. 26-507. Emphasis supplied. The appellant construes the statute liberally and asserts that the statute was enacted to prevent harassment procedures by condemning authorities. In the past, appellant states, certain instrumentalities were guilty of bringing successive actions to condemn parcels of land with no intention of prosecuting to a conclusion, and thereby harassed the property owner into submission and acceptance of whatever terms were offered. “The first rule of statutory construction is to ascertain, if possible, the intent of the legislature.” Nordstrom v. City of Topeka, 228 Kan. 336, 340, 613 P.2d 1371 (1980). If the intent of the legislature was to prevent harassment by use of successive actions then the statute only applies to cases where the city has abandoned the condemnation and may file successive actions. By providing a judgment against the city for a defendant’s costs, the effect would be to discourage the city from initiating successive court actions. This seems to be a fair reading of the statute because § b is entitled “Abandonment” and the word “abandoned” is used twice within that section. Appellants assume the city “abandoned” the condemnation within the meaning of the statute. However, in this case the city did not abandon the condemnation project. It purchased the property, and by doing so before the appraisers were appointed, it probably saved money. There seems little reason to saddle the city with lessees’ costs merely because the city settled the controversy giving rise to the condemnation. The supreme court has dealt with dismissals of leasehold interests in eminent domain proceedings. In State Highway Commission v. Bullard, 208 Kan. 558, 493 P.2d 196 (1972), the issue was whether the owner of a leasehold interest had standing to intervene in a proceeding after such tract had been dismissed from the proceeding. The question was answered in the negative. However, the issue whether the leaseholder could be awarded his costs after dismissal was not raised by the parties or addressed by the court. The following cases support the “no abandonment” theory. In Whittier Union High Sch. Dist. v. Beck, 45 Cal. App. 2d 736, 114 P.2d 731 (1941), the court stated that the fact that the school district had procured a dismissal of the condemnation proceeding after it had acquired the property by purchase did not constitute an “abandonment” within the meaning of a statute providing for an award of attorney fees and necessary expenses upon abandonment by plaintiff. The California court said: “The sole question properly presented by this appeal, therefore, is whether the dismissal of the action by the plaintiff after the purchase of the property constituted an abandonment of the proceedings within the meaning and application of section 1255a. Obviously, there was no such abandonment. The property in question had been acquired by purchase, plaintiff had achieved the purpose of the suit, the matter had been settled out of court and there was no further necessity of a judgment of condemnation. Plaintiff having acquired the property which formed the subject of the proceeding in eminent domain could hardly be said to have abandoned its efforts to acquire the. same. The question is answered by the apparent purpose for which section 1255a was enacted, namely, ‘to meet certain abuses arising out of resort to the action without seriously intending to prosecute it to a conclusion.’ (Pacific Gas etc. Co. v. Chubb, supra, at page 270.) Certainly, plaintiff’s good faith in the instant case was shown when the property was actually purchased. There can be no question that in cases other than abandonment, there being no provision therefor found under the title ‘Eminent Domain’ (Title VII) in Part III, Code of Civil Procedure, a proceeding in eminent domain may be dismissed as elsewhere provided by the said code, as under section 581, subdivision 1, in the instant case. People v. Southern Pacific R. R. Co., supra, at pp. 263, 264, provides a complete answer to the question here presented, and distinguishes the Silver Lake Power & Irrigation Co., case, supra. Also see City of Bell v. American States Water Service Co., supra, wherein dismissal of a proceeding in eminent domain under section 583, Code of Civil Procedure, was upheld. “It follows that under the circumstances the trial court erred in entertaining respondent’s motion for dismissal under section 1255a, Code of Civil Procedure, in entering judgment of dismissal pursuant thereto and in awarding respondent her attorney’s fees.” 45 Cal. App. 2d at 739-40. In U.S. v. 410.69 Acres of Land, Etc., 608 F.2d 1073 (5th Cir. 1979), the federal court construed a provision of the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4654(a). This statute provided that the owner of property be awarded sums for reimbursement of expenses if “the proceeding is abandoned by the United States.” 42 U.S.C. § 4654(a)(2). The court stated, reading the act in its entirety: “[W]e do not think the statute was intended to require reimbursement by the Government of the litigation expenses actually incurred by a landowner in a condemnation proceeding voluntarily dismissed by the Government when the landowner subsequently sells the land to the Government for his asking price, particularly when the landowner asks the district court to order reimbursement after successfully concluding the sale. It is at the very least anomalous that the fees the landowner in this case wishes to charge to the Government because of the dismissal of the condemnation proceedings were calculated as a percentage of the amount received by the landowner when it sold its property to the United States. If, when a motion to recoup litigation expenses is filed in the district court, the Government has not already purchased the land in question from the landowner, we might well reach a different result notwithstanding the Government’s intention to take the property at some future time. Here, however, before it even filed the motion to recoup its litigation expenses, Perdido Key has been paid the price it asked for the land. Under these circumstances we think an award of litigation expenses to the landowner would run contrary to the intent of Congress in enacting § 304(a).” 608 F.2d at 1076. The same result was reached in Illinois in Dept. of Public Wks. & Bldgs. v. Bartz, 6 Ill. App. 3d 160, 285 N.E.2d 261 (1972). The court said: “Without an abandonment of the proceedings there can be no allowance of costs, expenses and attorney fees. “Here there was no abandonment of the enterprise, or of the location and route of the improvement, it was in fact constructed and completed. To imply a consent to abandonment of the proceedings on the part of the State would contemplate an abandonment of the improvement planned, or a change of location or route or an abandonment of the design of taking the particular property involved for public use, in short, a good faith, complete surrender of the project as far as the land involved is concerned. “Any rights which the parties may have in a condemnation suit are governed by the provisions of the Statute.” 6 Ill. App. 3d at 163. Appellant has cited no cases to the contrary and our research has discovered none. Appellant wants to be made whole for its expenses incurred by it in defending against the action instituted by the city of West-wood. By assuming there was an abandonment, appellant would have this court construe the statute liberally and award it its costs. Even if this case had gone to trial, appellant would not have been able to put on evidence of the specific value of the leasehold interest. The Supreme Court of Kansas in City of Manhattan v. Kent, 228 Kan. 513, 618 P.2d 1180 (1980), adhered to the undivided fee rule and allowed evidence of the leasehold interest only as a factor in arriving at the market value of the entire tract at the time of taking. 228 Kan. at 518-19. Appellant does not allege there was a taking of his leasehold interest. The courts have no right to enlarge the scope of a statute nor to amend it by judicial interpretation. Schroder v. Kansas State Highway Commission, 199 Kan. 175, 428 P.2d 814 (1967). This court, faced with the problem of construction of a statute, has as its function to interpret the statute and not to rewrite legislation. Dougan v. McGrew, 187 Kan. 410, 357 P.2d 319 (1960), 86 A.L.R.2d 1174 (1962). Judgment affirmed.	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Harman, C.J. Retired: This is a mortgage foreclosure proceeding against two individual owners of two separate tracts of real estate. Kimberling Properties, Inc., a corporation which had not been a party to the proceeding, purchased one of the two tracts from the owners during the pendency of the suit. In the foreclosure judgment it was given redemption rights as to that tract. Later it moved to set aside the order of confirmation of sheriff’s sale as to the one tract. The corporation also sought other equitable relief. Appeal is from denial of that motion. On July 14, 1978, Earl Wayne Braden and Beverly Sue Braden borrowed $92,500 from appellee Overland Park Savings and Loan Association. As security they executed a mortgage on the new home they were buying (the Stillwell property, Tract A) and their former home (the Shawnee property; Tract B); the latter was then on the market for sale, and upon such sale Overland Park Savings and Loan agreed to release the Shawnee property from the lien of its mortgage upon receipt of a $42,500 principal payment on the mortgage note. This litigation commenced March 14, 1979, when the Bradens filed an action against Overland Park Savings and Loan Association, Santa Fe Financial Corporation and Harold B. Osborne, alleged owner of the two corporations. This petition was filed by Thomas Brooks of Thomas Brooks, Chartered, as attorney for the Bradens. The petition alleged numerous deceptive acts and practices in connection with a real estate contract and the mortgage transaction in July, 1978. Later on the same day, Overland Park Savings and Loan Association filed its mortgage foreclosure action against the Bradens, alleging default in payments on the note. Following numerous pleadings and depositions the two cases were consolidated and heard by the trial court. Appellant Kimberling Properties, Inc., was not a party to either of these actions. During the pendency of the two actions the Bradens entered into a contract with Kimberling to sell it the Shawnee property, with a quitclaim deed in escrow. The contract was never recorded. The transaction was in part to satisfy accrued attorney fees due Thomas Brooks. Brooks and his wife, also an attorney, were principal officers and stockholders of Kimberling Properties, Inc. In off-the-record comments during the taking of a deposition, Mr. Braden told Overland Park Savings and Loan Association’s attorney that Thomas Brooks had some sort of interest in the Shawnee property. Soon thereafter the disciplinary administrator’s office sent Brooks a letter regarding his continued representation of the Bradens after acquiring an interest in the property which was the subject of the litigation. Brooks withdrew as the Bradens’ attorney. Later, upon the hearing of the two actions, the Bradens, pro se, dismissed their damage claims in the action commenced by them, which claims had been disclosed as being for $2,425,000. The trial court entered foreclosure judgment against the prop erty March 11, 1980. The Bradens were still unaware as to the exact identity of the grantee to whom they had conveyed the Shawnee property, but they disclaimed any redemption right to it. Counsel for Overland Park Savings and Loan Association learned in telephone conversation with Mr. Brooks that the redemption right should be granted to Kimberling North, Inc., a Missouri corporation, and its successor in interest, Kimberling Properties, Inc., a Kansas corporation, and accordingly, the latter was given that right in the journal entry, a copy of which was furnished Brooks. Pursuant to published notice the two properties were sold at sheriff’s sale on April 17, 1980, at 10:00 a.m. Overland Park Savings and Loan Association was the successful bidder, allocating 85 percent of its total judgment to the Stillwell property and the remaining 15 percent to the Shawnee property. Thomas Brooks was present at the sale. On the same day of the sale, and just eleven minutes prior to it, the Bradens-to-Kimberling deed to the Shawnee property was recorded in the office of the register of deeds of Johnson County. On April 22, 1980, the trial court confirmed the sheriff’s sale. In its order the court found that appellant Kimberling through its attorney and corporate officer, Thomas Brooks, had received by mail on or about March 23, 1980, an exact copy of the journal entry of foreclosure judgment, which judgment specifically ordered a separate sale of the two tracts covered by Overland Park Savings and Loan Association’s mortgage (Tract A was to be sold first with its proceeds to be applied first to the satisfaction of the judgment — the proceeds of the sale of Tract B were subject to a prior lien of Capitol Federal Savings & Loan); the court also referred to the published notice of sale which stated that the sale would be in accordance with the judgment in the case and that these sources adequately advised Kimberling of the method of sale. Kimberling did not appear at this confirmation hearing although, as a courtesy, Overland Park Savings and Loan Association had notified it of the hearing. On May 5, 1980, appellant Kimberling filed its motion to set aside the order confirming the sale and it sought other equitable relief concerning the sale. The trial court denied the motion and this appeal ensued. Appellant’s motion can only be treated as one for relief from a judgment or order under K.S.A. 60-260(b)(6), the catch-all of these mutually exclusive subsections. Under subsection 6, providing relief from a judgment or order for “any other reason justifying relief from the operations of the judgment,” a trial court is vested with broad discretion in doing equity appropriate to the particular circumstances. The court has power to correct manifest injustice, the extent and limits of which we need not delineate here. Appellant asserts several reasons why the sheriff’s sale should be voided. It urges it was a contingently necessary party to the proceedings, citing Lenexa State Bank & Trust Co. v. Dixon, 221 Kan. 238, 559 P.2d 776 (1977) for its proposition that, rather than voluntarily intervening, it should have been joined as a necessary party in the foreclosure action. However, in Lenexa the adverse mechanic’s lien holders had interests of record prior to the foreclosure judgment but the foreclosing bank chose to ignore them. That is not the situation here and Lenexa is inapplicable. Appellant Kimberling concealed its connection with the Shawnee property until it filed its deed eleven minutes prior to the sheriff’s sale. Overland Park Savings and Loan Association’s counsel first learned of Thomas Brooks’ connection in off-the-record comments by Mr. Braden. Braden did not know to whom the conveyance was actually made. The discussion was in the presence of Mrs. Brooks. For reasons not shown, she chose not to throw any light on the subject. At the time judgment was taken Overland Park Savings and Loan Association’s counsel still did not know who the grantee was and learned only after post-hearing inquiry of Mr. Brooks. Mr. Brooks was aware of the sequence in which the two properties would be sold and was present at the sheriff’s sale and presumably observed the proceedings. Although informally notified of the hearing on appellee’s motion to confirm the sale, he or his appellant company did not appear to voice any objection to the proceedings. Objection was first made only after the Stillwell property was redeemed per the procedure prescribed and approved by the court. No good reason for the delay has been suggested. The trial court in its memorandum denying relief noted all the above, that the Brooks are attorneys, and that their knowledge of hoth the law and the proceedings herein is to be imputed to the corporation “inasmuch as Mr. and Mrs. Brooks are the corporation.” The court also adopted, by reference to Overland Park Savings and Loan Association’s trial brief, the position that appellant cannot conceal its identity and then complain that it should have been joined as a defendant; further, the Bradens, as well as Overland Park Savings and Loan Association, would be prejudiced in the light of the redemptions already made by them and a subsequent sale to bona fide purchasers; and finally, that at the time the matter was briefed, the six-month redemption period had nearly expired. It is a basic tenet of equity that he who will not speak when he should, will not be allowed to speak when he would. Gray v. Crockett, 35 Kan. 66, 74, 10 Pac. 452 (1886). Similarly, it has been stated: “Where a party stands by and sees another who, in good faith, deals with property inconsistent with the first person’s interest and that person makes no objection, he is estopped to deny the validity of the action on the part of the second person.” Thaxton v. Beard, 157 W. Va. 381, 387, 201 S.E.2d 298 (1973). In Chowning, Inc. v. Dupree, 6 Kan. App. 2d 140, 143, 626 P.2d 1240 (1981), this was said: “ ‘The broad language of K.S.A. 60-260(b)(6) authorizing relief for “any other reason justifying relief from the operation of the judgment” gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice. This power is not provided in order to relieve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests.’ ” See also Neagle v. Brooks, 203 Kan. 323, Syl. ¶ 5, 454 P.2d 544 (1969). Let us examine appellant’s further complaints. It says that if it had been joined it could have objected to Overland Park Savings and Loan Association’s alleged agreement with the Bradens to allocate 85 percent of its total judgment as its bid on Tract A and 15 percent on Tract B (OPS&L bid $92,040.75 on Tract A and $16,242 on Tract B). Appellant wanted Tract A to bear more of the judgment so it could redeem Tract B for less money. If the confirmation were set aside, appellant would have Tract A bear $105,000 of the judgment, on the basis of its fair market value as evidenced by its subsequent sale by the Bradens after their redemption. Appellant implies the existence of a conspiracy between Overland Park Savings and Loan Association and the Bradens, but nothing so sinister appears. Rather, the mechanics of the sale and the bids were the product of a unilateral business decision by Overland Park Savings and Loan Association based on its interest in the two tracts, on one of which (Tract B) it had a second mortgage. The indebtedness on the two properties was prorated, based on the estimated value of each. Overland Park Savings and Loan Association did advise the Bradens of this decision so they could proceed accordingly with their own plans. Legally, the trial court was not obligated to establish an upset price (Liberty Savings & Loan Ass’n v. Jones, 143 Kan. 422, 54 P.2d 937 [1936]). Similarly, confirmation of a bid less than, the full judgment is not improper. Equitable Life Assur. Soc. v. Shearer, 142 Kan. 310, 46 P.2d 869 (1935). Also, the court may apportion costs between lots. Aetna Building & Loan Ass’n v. Reverend, 144 Kan. 307, 58 P.2d 1138 (1936). No reason for change appears here. Appellant further asserts it would have contested the inclusion in appellee’s judgment the sum of $824.25 in unpaid closing costs. Contrary to appellant’s assertion of lack of authority for this, the note included a proviso for payment of the entire indebtedness “including . . . future advances” and the mortgage secured payment of the principal sum “together with such charges and advances” as may be payable under the note. This cost does not appear to be improper under the circumstances. Appellant further urges it should not have been burdened with the costs of three depositions taken in the Bradens’ damage action but never used at trial, which costs were made a part of the judgment in the consolidated case. We agree. The rule on this was stated in Wood v. Gautier, 201 Kan. 74, Syl. ¶ 3, 439 P.2d 73 (1968): “Charges for discovery depositions, not used as evidence, are ordinarily not taxable as costs. The burden of proving any exception to this rule rests upon the party claiming the costs.” The depositions were taken in a case in which appellant was never a party. We do not believe the situation is so exceptional as to warrant the taxation of these charges as costs in the foreclosure judgment and it is ordered that appellant be reimbursed for the amount of the charge. The judgment denying relief, as modified with respect to the deposition charge, is affirmed. Judgment affirmed as modified.	[ -14, 105, -79, 108, -56, -32, 56, 10, 72, -71, 55, 83, -49, -60, 17, 45, -58, 41, 69, 121, -15, -77, 111, -64, -64, -13, 81, -51, -72, 95, -12, -105, 76, 48, -56, 85, 2, -126, -57, 28, 46, 7, -101, 69, -47, 0, 52, -21, 21, 0, 17, 13, -13, 41, 52, 67, 12, 46, -17, 57, -48, -8, -69, -122, 127, 23, -127, 5, -112, 3, -24, -86, -112, 117, 0, -88, 114, 38, -106, 116, 0, 11, 9, 42, 98, 50, 36, -21, -76, -88, 14, 85, -115, -89, -79, 88, 18, 40, -66, -100, 112, 3, 67, -4, -25, -123, 29, 104, -121, -54, -42, -45, 15, 116, -100, 11, -1, 23, 37, 112, -53, -94, 93, -41, 58, -69, -115, -79 ]
Abbott, J.: This is an appeal in a personal injury case by the defendant, Viola Emaline Stone, from a jury verdict for $55,700 in favor of the plaintiff, Bradley Meyer. Defendant contends the trial court erred in not sustaining her motion for a directed verdict; she further contends the trial court erred in allowing testimony relating to a possible basketball scholarship and its value, and in giving an instruction that a driver, once having stopped at an open intersection, has a duty to yield to other vehicles. The accident occurred at the open intersection of Edgerton and Grandview streets in Manhattan, Kansas, on May 24, 1974. It was a clear day. The pavement was dry. Edgerton is 26 feet 9 inches wide between its curb lines. Mrs. Stone was traveling south on Edgerton. She was driving a 1971 Cadillac and was going to her home, which is one-half block south of the intersection where the accident occurred. A large evergreen shrub grows at the northeast corner of the intersection. From the photographs in the record, it appears the shrub is within a few feet of Grandview and is several feet higher than street level. As Mrs. Stone looked east (to her left), her view of westbound traffic was partially obstructed by the large shrub. Her view to the west was unobstructed, but Grand-view slopes sharply downhill west of the intersection. Mrs. Stone testified that cars proceeding east on Grandview suddenly appear at the crest of the hill, and she was paying particular attention to that possibility. Plaintiff, a 15-year-old, 6-foot 8-inch youth, was riding a motorcycle west on Grandview. Grandview is a street 26 feet 11 inches wide. The motorcycle was traveling between 25 and 40 mph as plaintiff approached the intersection. Plaintiff testified he was going approximately 25 mph. Mrs. Stone testified that she knew the intersection was dangerous, presumably because the large shrub interfered with her view to the east and by the fact that eastbound cars would suddenly appear at the crest of the hill to her west. Although there was no yield or stop sign controlling traffic, she did stop at the intersection. She looked left and did not see plaintiff; she then looked right, the direction she considered the most dangerous, and started across the intersection. She did not observe the motorcycle prior to the collision. Plaintiff saw Mrs. Stone stop at the intersection. He could see the front and rear part of her car, but the middle part was obscured by the shrub. Plaintiff estimated he was approximately 40 feet from the point of impact at that time. He realized when he was about 30 feet from the point of impact that she was proceeding into the intersection. His cycle struck the left front fender and bumper of the automobile. Plaintiff’s leg was broken in three places, and he also received other injuries in the accident. In its instructions to the jury, the trial court included instruction No. 11, as follows: “The laws of Kansas provide that the driver of a vehicle, after having stopped at an intersection, shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard.” This instruction is an adaptation of PIK Civ. 2d 8.29 and 8.30 (1977), both of which are based on the duties of drivers as they approach intersections controlled by stop signs or yield signs (K.S.A. 8-1528). Defendant argues that because the intersection involved was an open, uncontrolled one, instruction No. 11 was not applicable. Instructions should be drawn with careful attention given to supporting authorities and should be accurate statements of the law. Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 601, 545 P.2d 334 (1976). An incorrect instruction is presumed to be prejudicial unless the contrary is clearly shown, and an erroneous instruction on a material issue requires reversal. Van Mol v. Urban Renewal Agency, 194 Kan. 773, 776, 402 P.2d 320 (1965). The thrust of defendant’s argument on appeal is that instruction No. 11 led the jury to believe that she had a duty to remain stopped at the intersection and yield to the oncoming vehicle as if the intersection were controlled by a stop sign or yield sign when, in fact, it was an open intersection. As we view the instruction, it was tantamount to having directed a verdict for plaintiff. It effectively instructed the jury that plaintiff had the right-of-way at the open intersection; that plaintiff had a right to rely on his assumption that the defendant would not enter the intersection; and that defendant had a duty to remain .stopped. The instruction, given over the strenuous objection of defendant’s counsel, would have been more proper as an argument to the jury. Considering the respective speeds of the two vehicles, it was a question of fact for the jury as to who had the right-of-way and as to whether under the facts of this case plaintiff was contributorily negligent, and the trial court should not have unduly emphasized to the jury one factual situation over the exclusion of others. Byas v. Dodge City Rendering Co., 177 Kan. 337, 343, 279 P.2d 252 (1955). Based on the traffic laws in effect when the accident occurred, it was the duty of any driver approaching or crossing an uncontrolled intersection to drive at an appropriate reduced speed. Daugharthy v. Bennett, 207 Kan. 728, 732, 486 P.2d 845 (1971). Under the facts of this case, both drivers had the same duty of care. The instruction given had the practical effect of instructing the jury that if one of the drivers was abundantly cautious and came to a complete stop, the other driver had no duty to reduce his speed if he was close enough to constitute an immediate hazard. The questions of defendant’s negligence and plaintiff’s contribu tory negligence are ones on which reasonable minds could reach different conclusions; thus, they are questions of fact to be determined by the jury. If the trial judge had directed a verdict for the plaintiff on the question of liability, we would be unable to affirm, and we see little distinction between directing a verdict and giving the instruction that was given. Instruction No. 11 is erroneous and prejudicial to the defendant, and the judgment is reversed and remanded for retrial. The trial court allowed highly speculative evidence to be admitted on the question of damages. Plaintiff testified that he had hoped to obtain a scholarship to play basketball at Kansas State University, and he valued such a scholarship as being worth somewhere around $20,000. Other than the fact that plaintiff was 6 feet 8 inches tall, the record contains no admissible evidence that if he had not been injured he might have received a scholarship to KSU. Plaintiff did play high school basketball, but so do many other players who are never offered scholarships at a major basketball power such as KSU. We are of the opinion the evidence offered was highly speculative and should not have been admitted. Tischhauser v. Little, 179 Kan. 551, 552, 296 P.2d 1118 (1956). For the purposes of remand, the trial court is cautioned that evidence of a potential basketball scholarship is not per se inadmissible. See Dickens v. United States, 545 F.2d 886 (5th Cir. 1977); Whittle v. Schemm, 402 F. Supp. 1294 (E.D. Pa. 1975); Borak v. Bridge, 524 S.W.2d 773 (Tex. Civ. App. 1975); Annot., 15 A.L.R.2d 418 §§ 2, 3. If sufficient evidence on the subject is introduced at retrial, the trial court has broad discretion in admitting or rejecting it. If, however, plaintiff fails to produce additional evidence on the loss of a scholarship and its reasonable value, the evidence should be excluded. Defendant also contends the trial court erred in not directing a verdict in her favor based on the alleged contributory negligence of plaintiff. The standard for reviewing directed verdict questions was recently restated by the Kansas Supreme Court in White v. New Hampshire Ins. Co., 227 Kan. 293, 607 P.2d 43 (1980), at page 297: “The rule governing both trial and appellate courts, in ruling upon motions for directed verdict, is set forth in Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 5, 564 P.2d 508 (1977): “ ‘In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for a directed verdict.’ ” Here, plaintiff’s version of the evidence shows he believed that defendant intended to let him pass through the intersection. Furthermore, he testified that once defendant pulled into the intersection, it was too late for him to avoid contact. Under our applicable scope of review, the trial court did not err in finding that reasonable men could differ as to whether plaintiff was contributorily negligent in this accident. The fact that plaintiff may have made some admissions which defendant claims establish contributory negligence does not alone constitute contributory negligence by the plaintiff. See Frevele v. McAloon, 222 Kan. 295, 301, 564 P.2d 508 (1977); Brooks v. Dietz, 218 Kan. 698, Syl. ¶ 7, 545 P.2d 1104 (1976). The trial court did not err in refusing to direct a verdict for plaintiff. We also note the trial court, without objection, gave instruction No. 14, which states: “The laws of Kansas provide that when two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.” This instruction is taken from PIK Civ. 2d 8.27 (1977) and is based on authority found in K.S.A. 8-1526(a). This statute, however, was not yet in effect at the time of the accident here. The accident here occurred on May 24, 1974, and at that time the statute in force was K.S.A. 1973 Supp. 8-550, which stated: “(a) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway. “(b) When two (2) vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.” On retrial, the trial court should instruct by using the former PIK Civ. 8.27, which stated: “The laws of Kansas provide that the driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. When two vehicles enter an intersection from different highways at the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.” Reversed and remanded with directions.	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Herd, J.: Plaintiff-appellee Reece Construction Company sued defendants-appellants The State Highway Commission, Department of Transportation and Gove County, to recover damages incurred in the rebuilding of a bridge across the Smoky Hill River in Gove County. The trial court entered judgment for Reece in the amount of $151,132.05 plus costs. The defendants appeal. In July, 1973, the then Highway Commission, acting as agent for Gove County, entered into a contract with Reece Construction Company, Inc. for the construction of a bridge across the Smoky Hill River in Gove County. The bridge was to be built pursuant to the Standard Specifications for State Road and Bridge Construction. On April 1, 1974, after the bridge was almost completed, a fire was discovered in a tarp covering the second span on the west side of the bridge. Several employees attempted to extinguish the fire with two small C02 fire extinguishers, but to no avail. The wind was so strong the fire extinguishers failed to put the fire out. It spread rapidly over the top of the bridge and was out of control within a few minutes. The fire was so hot the employees could not get close enough to put it out with water from a small water pump nearby. The bridge was almost totally destroyed. Afterward, Reece made an investigation to determine the cause of the fire. Although the evidence is inconclusive, it is believed the blaze was started by a carelessly thrown cigarette butt. Due to the amount of destruction, the Highway Commission required Reece to demolish the remaining structure and completely rebuild the bridge. On December 31, 1974, Reece Construction Company notified the Highway Commission it would comply with that requirement but placed appellants on notice the company was making a claim for the costs of labor and material for this work as a claim for adjustment and dispute under § 105.15 of the Standard Specifications for State Road and Bridge Construction. After reconstruction, the bridge was accepted by appellants and the contract price was paid to Reece Construction Company. Reece brought suit for the cost of demolishing the burned bridge and rebuilding it. The trial court found for Reece and this appeal followed. The issues on appeal are: Is the rebuilding of the burned bridge covered by the contract? If not, who has the burden of proving it falls within the exception? The common law provides where there is damage to a structure during the performance of an indivisible construction contract, without fault of either party, the contractor has the duty to repair the structure. 13 Am. Jur. 2d, Building and Construction Contracts § 64, p. 67-68. An indivisible contract is one in which the contractor agrees absolutely and unqualifiedly to build a structure for a stipulated price, as opposed to a severable contract where several people perform different functions in completing the contract. There is no dispute the Gove County bridge contract is an indivisible contract and, under common law, Reece had the duty to rebuild the bridge at its expense. The contract between the parties also makes the contractor responsible for the rebuilding of and restoration of damaged property. Kansas Highway Commission, Standard Specifications for State Road and Bridge Construction, § 107.16 (1973), provides: “Until final written acceptance of the project by the Engineer, the Contractor shall have the charge and care thereof and shall take every precaution against injury or damage to any part thereof by the action of the elements, or from any other cause, whether arising from the execution or from the nonexecution of the work. The Contractor shall rebuild, repair, restore, and make good all injuries or damages to any portion of the work occasioned by any of the above causes before final acceptance and shall bear the expense thereof except damage to the work due to unforeseeable causes beyond the control of and without the fault or negligence of the Contractor, including but not restricted to acts of God, of the public enemy or governmental authorities.” p. 53. The contract expressly imposes a duty upon Reece of having charge and care of the project and exercising every precaution against injury or damage to the construction from action of the elements or any other cause whether it arises from the execution or nonexecution of the work. Reece is expressly responsible for every foreseeable consequence to the construction regardless of fault. Section 107.16 provides for an exception in cases of damage caused by unforeseeable causes beyond the control of and without the fault or negligence of the contractor which includes acts of God, public enemies or governmental authorities. Appellee argues its duty ends if the cause of damage is unforeseeable or beyond its control or without its fault or negligence. Appellee also argues appellants had the burden of proving appellee’s negligence to avoid paying the rebuilding expenses. Appellants argue the exception provided in § 107.16 is stated in the conjunctive and, to fall within its purview, appellee must bear the burden of proof that the cause of damage to the structure was not only unforeseeable and beyond control of the contractor but was without its fault or negligence. A contract clause identical to § 107.16 was construed in Kansas Turnpike Authority v. Abramson, 275 F.2d 711, 713 (10th Cir. 1960), an action by a contractor to recover for redoing work completed according to specifications but redone because of unusual rainfall on the project. The court stated: “ ‘[W]here one agrees to do for a fixed sum a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered.’ [Citations omitted.] . . .‘When the principal object of the contract is to obtain a result . . . the risk of accomplishing such purpose or result is on the builder.’ Glass v. Weisner, 172 Kan. 133, 238 P.2d 712, 716.” Normally, the party asserting there was negligence must shoulder the burden of proving its existence. In re Estate of Morse, 192 Kan. 691, 695, 391 P.2d 117 (1964). Appellee, how ever, as the party bringing the action, must also prove he can recover under the provisions of the contract. The contract includes Standard Specification § 107.16, stating that the contractor has control over the construction project and he is responsible for assuming the costs of rebuilding, restoring or repairing the work unless he falls within the exception to that rule. A party who seeks to take advantage of an exception to a contract is charged with the burden of proving the facts necessary to bring him within the exception. See Davies Flying Service v. United States, 216 F.2d 104 (6th Cir. 1954); 29 Am. Jur. 2d, Evidence § 144, p. 178. We hold Reece Construction Company has the burden of proving it came within the exception to the contract, and therefore appellee must prove the fire on the bridge was unforeseeable and beyond its control and not caused by its fault or negligence. Foreseeability is an element of proximate cause. Note the following from Schwarzschild v. Weeks, 72 Kan. 190, Syl. ¶ 3, 83 Pac. 406 (1905): “Negligence is the proximate cause of an injury when it appears that ‘the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.’ ” In Stevenson v. City of Kansas City, 187 Kan. 705, 707, 360 P.2d 1 (1961), the court set forth general rules on negligence and proximate cause, quoting Shideler v. Habiger, 172 Kan. 718, Syl. ¶¶ 3, 4, 243 P.2d 211 (1952): “Natural and probable consequences are those which human foresight can anticipate because they happen so frequently they may be expected to recur.” “While it is not a necessary element of negligence that one charged with negligence should have been able to anticipate the precise injury sustained, a person is not charged with all possible consequences of his negligent acts. He is not responsible for a consequence which is merely possible according to occasional experience, but only for those consequences which are probable according to ordinary and usual experience.” Finally, we note the following discussion of foreseeability from Steele v. Rapp, 183 Kan. 371, 327 P.2d 1053 (1958), quoting Stone v. Boston & Albany Railroad, 171 Mass. 536, 541, 51 N.E. 1 (1897): “The question is not whether it was a possible consequence, but whether it was probable, that is, likely to occur, according to the usual experience of mankind .... One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable. A high degree of caution might, and perhaps would, guard against injurious consequences which are merely possible; but it is not negligence, in a legal sense, to omit to do so.” 183 Kan. 378. Opinion filed June 26, 1981, modifying opinion filed May 1, 1981, and denying rehearing. The evidence revealed the weather was dry and windy in Gove County in 1973. Appellee used tinder-dry creosoted poles and old canvas tarps which had lost their fire-resistant capabilities. The employees and inspectors were permitted to smoke on the job site and no extra precautions were taken although appellee was aware of the increased risk of fire caused by the foregoing conditions. On a construction site under appellee’s control, with flammable material, gasoline and diesel engines, and permissible smoking, a fire is a foreseeable event and failure to provide adequate fire fighting equipment to control a fire is a breach of duty. We find appellee failed to sustain its burden of proving it came within the exception to the contract. There was no evidence the fire was an unforeseeable event. The cost of rebuilding the bridge must be assumed by Reece Construction Company. The judgment of the trial court is reversed and judgment entered for the appellants at the cost of the appellee.	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Herd, J.: This is an action for declaratory judgment, injunction and mandamus to compel the Kansas State Park and Resources Authority to provide additional access roads from Woodson Bend Subdivision to the park road in Lake Crawford State Park. The appellees are residents of Woodson Bend Subdivision in Crawford County. This subdivision shares a common boundary with Lake Crawford State Park. The Kansas Park and Resources Authority has jurisdiction over the park through which runs a park road. Woodson Bend Subdivision contains a sixty foot easement for a road and an eight foot utility easement with a ninety-four foot setback for buildings on each lot. Appellees’ property comes within thirty-five feet to seventy-six feet of touching the park road. The Park Authority fenced the park boundary and limited the appellees’ ingress to the park road to three accesses. Appellees demand thirteen. The trial court found the park road to be a public road and the appellees as abutting property owners entitled to reasonable access. This appeal followed. Appellees base their claim to access to the park road on the common law right of access. The Supreme Court outlined this right in Smith v. State Highway Commission, 185 Kan. 445, 451, 346 P.2d 259 (1959): “It has consistently been held in this jurisdiction the right of access to and from an existing public street or highway is one of the incidents of ownership of land abutting thereon, sometimes called a common law right of access, which may not be taken from the owner by the public without just compensation.” More recently, the Supreme Court stated: “[I]t is recognized in the law of this state that the right of access to and from an existing public street or highway is one of the incidents of ownership of the land abutting thereon.” Teachers Insurance & Annuity Ass’n. of America v. City of Wichita, 221 Kan. 325, 330, 559 P.2d 347 (1977). It is apparent this right of access has two components: 1) The persons claiming the right must own land abutting that street or highway; 2) There must be a public street or highway. Let us examine the first component. Does the property in Woodson Bend Subdivision abut the perimeter road of Lake Crawford State Park? Black’s Law Dictionary defines abut as “to reach” or “to touch.” (4th ed. 1951 at p. 25) Thus, according to the technical definition, appellees would not be abutting property owners and thereby not entitled to access because their property does not actually border the road. However, the courts have not been so strict in construing the term. In Riddle v. State Highway Commission, 184 Kan. 603, 610, 339 P.2d 301 (1959), the court stated: “The right is justified upon the grounds of necessity [citation omitted] and is such as is reasonably necessary for the enjoyment of the land [citation omitted]. It is a property right known in law as an ‘easement appurtenant’ or an ‘easement access’ to the abutting land [citations omitted]. It includes not only the right of the abutting owner to enter and leave his property by way of the highway, but also the right to have the premises accessible to patrons, clients and customers [citation omitted]. However, such right is subject to reasonable regulations of the commission with respect to entrances [citation omitted].” The trial court held, in effect, it was “reasonable” to assume that close proximity of land to an existing public highway was enough to allow the owner of the land the right of access. Before the trial court, appellees argued the situation here was similar to cases in which the property abuts a highway right-of-way instead of the highway itself. Appellees contended the thirty-five to seventy-six foot strip between their property and the park road was similar to a right-of-way. There are, however, distinctions which should be made. The strip between appellees’ land and the park road is owned in fee by the State. A right-of-way, on the other hand, is only a servitude imposed on the land. The fee remains in the owner of the property. See Black’s Law Dictionary 1489 (4th ed. 1951). Although the Kansas court has never ruled on this issue, other courts have recognized the difference and refused to extend an abutter’s right of access to one whose land does not adjoin at any point the road surface. See City of Wichita Falls v. Thomas, 523 S.W.2d 312 (Tex. Civ. App. 1975), where the owner’s property was separated from a street by a triangular strip of land owned by the city; Farnsworth v. Soter’s Inc., 24 Utah 2d 199, 468 P.2d 372 (1970), where the ten to fourteen foot strip separating the owner’s land from a county road was formerly owned by the county; and State v. Fuller, 407 S.W.2d 215 (Tex. 1966), where the owner’s land was separated from the road by railroad tracks. Since the strip of land between the park road and appellees’ property is owned by the State and is not merely a right-of-way, we hold appellees are not abutting property owners and are therefore not entitled to the common law right of access. We need not discuss the public highway issue since the case is disposed of on the first issue. The judgment of the trial court is reversed.	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Spencer, J.: Plaintiff has appealed from a judgment denying a permanent injunction and damages against defendant, its former employee. Defendant has cross-appealed from the judgment which denied his counterclaim for one month’s compensation of $3,000. Much testimony was adduced at trial, establishing in detail the background of the parties’ business relationship. It is not necessary, however, to conduct a lengthy review of the testimony in order to reach the issues presented. At the time of entering Evco’s employ, Brandau entered into a written contract of employment dated May 3, 1976, which contained a non-competition clause, in substance as follows: “3. For a period of one year following termination of employment of the Employee (but in no event beyond December 1, 1976) the Employee agrees that he shall not, directly or indirectly, engage in any business of the same or similar character to the business heretofore conducted by Evco within the territory served by Evco . . . .” “In consideration of such covenant not to compete, Evco hereby agrees to pay to the Employee the aggregate sum of $40,500.00, payable as follows: May 1, 1976 $12,500.00 May 1, 1977 $14,500.00 May 1, 1978 $13,500.00 Total $40,500.00” Pursuant to this portion of the agreement, Brandau received the first scheduled installment. The contract also provided: “So long as the Employee continues as an Employee of Evco he shall devote his entire time and attention to the business and affairs of Evco.” Several days prior to May 1, 1977, the date the second installment was due, Evco accused Brandau of having breached his agreement by attempting to develop, construct and market a fiberglass dry fertilizer spreader box, potentially competitive with products marketed by Evco. Due to this asserted breach, Evco refused to pay the second installment of $14,500. The dispute between the parties was apparently resolved when on August 25, 1977, the parties entered into two new agreements, referred to as exhibits “C” and “D.” Under these agreements, Brandau was not to compete with Evco for a period of two years following termination of his employment, but such was in no event to extend beyond August 31, 1979; Evco agreed to pay the remaining two installments provided for in the May 3rd contract, and did pay to Brandau the second installment with interest. On the next day Brandau submitted his resignation to Evco, which was formally accepted on August 27, 1977. Several weeks later, Brandau entered into the employ of Lor-Al Corporation, a competitor of Evco in the agricultural equipment market. Evco consequently initiated suit against Brandau, seeking temporary and permanent restraint of defendant Brandau and damages, all pursuant to non-competition provisions contained in agreements “C” and “D,” which purportedly extended the covenant not to compete as set forth in the May 3rd contract for a period of two years following termination of employment, but in no event beyond August 31, 1979. Pursuant to plaintiff’s petition, the trial court conducted evidentiary hearings relative to the issuance of a temporary injunction against Brandau, with such relief being granted in favor of Evco pending further order of the court. Following trial on the merits, the court entered findings of fact and conclusions of law. Relevant portions are in substance: (1) Consideration existed for the employment contract of May 3, 1976, which provided for payment to Brandau of $40,500 if he did not terminate his employment and compete with Evco prior to December 1, 1976. (2) No new consideration was provided by Evco to support agreements “C” and “D” as Evco was already bound to pay the two remaining installments of the $40,500 promised Brandau in the contract of May 3rd, and Brandau was then unconditionally entitled to that sum in that he did not leave Evco’s employment and compete prior to December 1, 1976. (3) No new consideration was provided by Evco by reason of its claim of settlement in good faith of a bona fide dispute between the parties, i.e., by agreeing to pay the non-competition sums promised by the May 3, 1976, contract despite Brandau’s unfaithfulness during the term of his employment. (4) No new consideration was provided by Evco’s agreement to advise Brandau as to whether his subsequent participation in business would be deemed a violation of his covenant not to compete as set forth in agreements “C” and “D.” The trial court also concluded Evco’s purpose in obtaining Brandau’s execution of contracts “C” and “D” was to eliminate competition; and that Evco had no intention of continuing to employ Brandau since the relationship of the parties was unsatisfactory to both, and Evco knew Brandau would resign immediately. Based on these conclusions, the trial court held Brandau was entitled to the final non-competition installment of $13,500, pursuant to the May 3, 1976, contract, but that Brandau was not entitled to back compensation of $3,000 as he had violated the contract provision calling for him to devote his entire time and attention to Evco’s business while in its employ. Evco first contends the trial court’s order of February 17, 1978, granting Evco a temporary injunction against Brandau pursuant to the terms of the non-competition provisions contained in agreements “C” and “D,” rendered the issue of Evco’s consideration for such agreements res judicata. Specifically, Evco relies upon the trial court’s finding at that time that agreements “C” and “D” were freely and voluntarily entered into by the parties, that consideration for said agreements was presumed, and there was no evidence to rebut such presumption. Evco’s reliance on such finding is misplaced. In Comanche County Hospital v. Blue Cross of Kansas, Inc., 228 Kan. 364, 613 P.2d 950 (1980), we find: “The purpose of a temporary injunction is not to determine any controverted right, but merely to prevent a threatened act which might perpetrate an injury, lessen the value of a claimed right or cause total loss of a claimed right pending final determination of the controversy between the parties. The grant of a temporary injunction would not be proper if it would appear to accomplish the whole object of the suit without bringing the cause or claim to trial. A temporary injunction merely preserves the status quo until a final determination of a controversy can be made. In re Sharp, 87 Kan. 504, 124 Pac. 532 (1912); 61 A.L.R. 925; 42 Am. Jur. 2d, Injunctions § 13, pp. 740, 741.” 228 Kan. at 366. In Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 61, 379 P.2d 342 (1963), it is stated: “The doctrine of res judicata is plain and intelligible, and amounts simply to this — that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal cannot afterwards be litigated by a new proceeding, either before the same or any other tribunal.” Emphasis added. Clearly, a determination made pursuant to an order granting a temporary injunction is not a determination on the merits and the principle of res judicata did not bar a determination of the issue of consideration at trial on the merits. Evco next argues the primary issue involved in this appeal: Whether the trial court erred in concluding no new consideration was provided by Evco to support agreements “C” and “D” based upon Evco’s alleged relinquishment of its claim that Brandau had violated the non-competition clause of the May 3, 1976, agreement. Evco asserts this alleged relinquishment constituted consideration in the form of forbearance from asserting a claim. As presented to the trial court and as is reflected in the pretrial order, the basis of Evco’s contention was: “Evco and Brandau signed an Employment Agreement May 3,1976 (Exhibit ‘A’ of Plaintiff’s Petition) containing a noncompete clause extending to December 1, 1976, and providing that Evco would pay Brandau $40,500.00 in installments .... During the summer and fall of 1976, Brandau became involved in a project to develop and market a fiberglass dry spreader box. Evco confronted Brandau with these facts and claimed that such activity by Brandau violated the noncompete clause of the Employment Agreement and therefore Evco did not owe Brandau the remaining installments . . . The principle that forbearance may constitute consideration to support a contract is established in Kansas. In Schiffelbein v. Sisters of Charity of Leavenworth, 190 Kan. 278, 280, 374 P.2d 42 (1962), it was stated: “Forbearance to sue can be good consideration for a promise, regardless of the actual validity of the claim, if the one who forbears has a reasonable and sincere belief in its validity. ‘The view is taken that a reasonable and sincere belief in the validity of the claim is necessary and sufficient. It is sometimes stated that if an intending litigant bona fide forbears a right to litigate, he gives up something of value. The reality of the claim which is given up must be measured, not by the state of the law as it is ultimately discovered to be, but by the state of the knowledge of the person who at the time has to judge and make the concession.’ (12 Am. Jur. p. 581, sec. 87.)” Two conditions were necessary to trigger violation of the “covenant not to compete” contained in the May 3, 1976, employment agreement: (a) Brandau’s termination of employment prior to December 1, 1976; and (b) Brandau’s engagement in competition with Evco in the agricultural equipment market. As the trial court correctly reasoned, the undisputed fact Brandau was not terminated from Evco’s employ until August, 1977, necessarily negates any claim that the covenant not to compete was violated by Brandau. This in turn negates any reasonable claim of forbearance on Evco’s part. Nor do the provisions of agreements “C” and “D” in any way refer to Evco’s alleged forbearance as constituting consideration for Brandau’s extended covenant not to compete. In fact, nothing within these agree ments purports to require Evco to relinquish or forbear litigating any claim it might then have had against Brandau. Furthermore, although thirty days’ prior written notice was required to terminate Brandau’s employment under the contract of May 3, 1976, his employment under agreements “C” and “D” was subject to being terminated “[a]t the will of either party hereto upon the giving of either verbal or written notice that this Agreement shall be terminated immediately or at some subsequent date specified in such notice.” The court found Evco’s only purpose in obtaining Brandau’s execution of contracts “C” and “D” was to eliminate competition and that Evco had no intention of continuing to employ Brandau. As we are here considering a covenant not to compete as contained within an employment contract, under which there was to be in fact no employment, there was an obvious failure of consideration. An anti-competition covenant, which is ancillary to a contract of employment freely entered into with full knowledge, is valid and enforceable if the restraint contained therein is reasonable under the facts and circumstances. However, only a legitimate interest may be protected by a covenant not to compete and a restrictive covenant is unreasonable if the real object is merely to avoid ordinary competition. Eastern Distributing Co., Inc. v. Flynn, 222 Kan. 666, 567 P.2d 1371 (1977). The only other issue raised by Evco we deem necessary to address is the question of whether paragraph 5 of agreement “D” provided consideration for the agreements in question. That paragraph provided: “In the event Jack Brandau desires to enter into any business operating in the trade territory of Evco Distributing, Inc., he shall have the right to provide Evco Distributing, Inc. with written notification of such desire and Evco Distributing, Inc. agrees that within 30 days of receipt of such written notification, it will advise Jack Brandau in writing as to whether or not Evco Distributing, Inc. will consider the participation by Jack Brandau in such business to be a violation of the provisions of the covenant not to compete set forth in Paragraph 6 of that certain Agreement by and between Evco Distributing, Inc. and Jack Brandau dated August 25, 1977.” Contrary to the conclusions of the trial court, Evco contends this paragraph imposed a duty on Evco which it did not previously have, and that such duty constituted a detriment to Evco sufficient to provide consideration for the promises of Brandau. This paragraph merely set forth a procedure by which Brandau might determine whether his prospective employment would be viewed as a violation of the new non-competition covenant contained in agreements “C” and “D.” No actual benefit was provided Brandau, as he was not in any degree excused from the operation of the non-competition provisos; likewise, no real detriment was borne by Evco as the latter was not required to excuse Brandau. The paragraph was but a by-product of Brandau’s new covenant not to compete, without which the provision would have been nonexistent. In upholding the judgment of the trial court, we are not unmindful of the principle of law which creates the factual presumption of consideration in all contracts. Ferraro v. Fink, 191 Kan. 53, 379 P.2d 266 (1963). This same principle, however, declares that the presence of a benefit or detriment to a promisor, sufficient to constitute consideration, is a question of fact, as is the question of what constitutes consideration when that issue is controverted. Ferraro, 191 Kan. at 56-57. We have reviewed the record on appeal and find that the trial court’s holding is supported by both the evidence and the applicable law. This conclusion applies with equal force to the portion of the trial court’s judgment denying Brandau’s counterclaim for compensation in the sum of $3,000. Brandau attempts to minimize the legal effect of his involvement in the fiberglass spreader box affair, contending he did not breach his covenant to devote his entire time and attention to the business affairs of Evco when his activities respecting the project were conducted on his own time and the project did not reach the mass-manufacturing stage. As a general rule, an unfaithful servant forfeits compensation he would otherwise have earned but for his unfaithfulness. Henderson v. Hassur, 225 Kan. 678, Syl. ¶ 7, 594 P.2d 650 (1979); 3 Am. Jur. 2d, Agency § 219; Annot., 88 A.L.R.2d 1437, § 3. Despite Brandau’s argument in mitigation of his acts, his violation of the basic tenet of loyalty to his employer is made especially clear when it is considered that the policy of the law requiring an agent’s loyalty is to remove from the agent all possible temptation to neglect his principal’s interest in favor of his own. See Kimble v. Gas Co., 108 Kan. 697, 196 Pac. 1063 (1921). The policy is best expressed at 3 Am. Jur, 2d, Agency § 220, p. 594: “For reasons of public policy the law does not permit an agent to assume any relationship antagonistic to his duty to his principal, and the underlying basis of the rule is to shut the door against temptation and keep the agent’s eye single to the rights and welfare of his principal. An agent is duty bound not to act adversely to the interest of his employer by serving or acquiring any private interest of his own in antagonism or opposition thereto, and this is a rule not only of law but of common sense and honesty as well.” Accord, 3 C.J.S., Agency § 273, p. 40. Affirmed.	[ -48, -4, 80, -20, -120, 96, 59, -102, 125, 66, 37, 83, -17, -41, 16, 121, -27, 127, -32, 122, 87, -77, 23, 97, -42, -109, -7, -43, -71, 79, -32, 92, -52, -80, -118, -43, -30, 18, -35, 84, 70, 1, -87, -20, -71, 68, 112, 51, 112, 75, 97, -100, -13, 46, 28, -50, 13, 40, 127, 45, -32, 112, -78, 13, 93, 18, -77, 4, -103, 111, -38, 62, -112, -71, 1, -23, 114, -66, -122, 116, 3, -103, 0, 34, 99, 0, 0, -25, -20, -104, -82, -5, 15, -92, -11, 56, 10, 71, -73, -97, 82, 18, -124, 126, -4, -99, 23, -28, 2, -53, -10, -15, 63, 100, -108, 10, -17, -126, -75, 97, -49, -66, 93, 87, 122, -109, 95, -106 ]
Swinehart, J.: This is an appeal from a decision of the District Court of Lyon County sustaining the plaintiff’s motion for summary judgment and entering judgment in favor of plaintiff for $50,000, for attorney fees under K.S.A. 40-256, and for costs. Two issues are raised on appeal: (1) whether the trial court erroneously granted summary judgment in favor of the plaintiff, and (2) whether the trial court abused its discretion by awarding the plaintiff attorney fees pursuant to K.S.A. 40-256. Plaintiff, Verla Faye Anderson, and decedent, William V. Anderson, were legally married at the time of the decedent’s death on February 23, 1977. On August 1, 1976, defendant Nationwide Life Insurance Company issued to plaintiff a group accident insurance policy made available to the plaintiff as an employee of MBPXL Corporation in Wichita (policy No. HLG-8894, certificate No. 312). Defendant totally prepared the insurance contract. When plaintiff applied for the policy, she was not required to submit any financial information concerning herself or her spouse. The policy insured plaintiff’s husband in the amount of $50,000. All premiums due under the policy were timely paid in full. Three conditions had to be fulfilled to validate the policy upon the death of plaintiff’s spouse: (1) plaintiff had to be an “insured eligible person” as defined in the policy; (2) decedent had to be an “eligible dependent” as defined in the policy; and (3) decedent’s death had to be a “covered accident” as defined in the policy. The parties agree that the first and third conditions were met. In the policy, “ 'Eligible Dependent’ as used herein means the Insured Eligible Person’s Spouse who is not the principal wage earner in the family unit (consisting of the Insured Eligible Person, such spouse, and their dependent children) and who is not legally separated from the Insured Eligible Person.” No definition was provided for the term “principal wage earner.” Sometime before April 6, 1977, defendant received written notice of plaintiff’s claim and demand for payment. However, defendant refused to pay under the terms of the policy on the ground that the decedent was not an eligible dependent spouse. On or about April 6, 1977, defendant retained Equifax Claims Investigators to investigate whether the decedent was in fact an eligible dependent within the terms of the policy. Throughout the investigation, the defendant attempted to contact plaintiff but defendant’s representative received no response from her until June 19, 1977. On July 11, 1977, plaintiff supplied defendant with IRS tax forms she and the decedent had filed. Plaintiff’s gross income for the year 1976 was $11,803.86, and for 1977, $3,900. In 1976 decedent had a gross income of $12,209.72, and in 1977, $3,097.51. In a letter dated July 22, 1977, plaintiff’s attorney was informed that defendant was denying the plaintiff’s claim because, based upon information it had received, decedent was ineligible for the dependent coverage. In response to a letter from plaintiff’s counsel, defendant later informed plaintiff that her claim was being denied because her husband did not meet the definition of eligible dependent when plaintiff applied for dependent coverage on July 9, 1976. Defendant’s decision was based upon decedent’s earnings as disclosed in his 1976 federal tax return. Defendant invited plaintiff to provide any additional information if defendant’s was incorrect. No further communication ensued between the parties until this action was filed on June 27, 1978. The trial court granted plaintiff’s motion for summary judgment. It found that the definition of principal wage earner contained in the definition of eligible dependent was ambiguous, and concluded that the decedent was not the principal wage earner in plaintiff’s family. Since the defendant insurance company employed ambiguous language in the policy and never requested financial information from plaintiff until after decedent’s death, the court determined that attorney fees were warranted. Defendant first argues that the trial court erroneously granted summary judgment in favor of plaintiff. Specifically, defendant contends that the trial court erred in concluding that the insurance policy was ambiguous. Even if, for the sake of argument, the contract was ambiguous, defendant asserts that the trial court applied erroneous rules of construction in determining whether or not the decedent was the principal wage earner in plaintiff’s family. Finally, it alleges that material questions of fact exist as to the amount of earnings of the parties during the effective period of the policy. Plaintiff concurs with the trial court’s conclusion that the contract was ambiguous and that the policy should be construed in favor of the plaintiff, thereby entitling her to the judgment of $50,000. The parties’ disagreement revolves around whether or not the decedent was an eligible dependent spouse under the terms of the policy. As noted earlier, the decedent clearly met two of the three elements of the definition. Whether the third condition was fulfilled, that is, whether the decedent was the principal wage earner in the family unit, is controverted. The insurance policy does not contain a definition of principal wage earner, nor was the term defined for the plaintiff when she applied for the insurance policy or when the defendant informed her it was denying her claim. “[T]he construction and effect of a contract of insurance is a matter of law to be determined by the court.” Scott v. Keener, 212 Kan. 719, 721, 512 P.2d 346 (1973). Therefore, the district court was required to examine the document and determine the appropriate construction thereunder. The general rule that insurance policies are to be construed in favor of the insured and against the insurance company arises only if there exists a rational basis for construing the policy itself. “That is, the contract must contain provisions or language of doubtful, ambiguous or conflicting meaning, as gathered from a natural interpretation of its language. [Citations omitted.]” Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, 498-499, 470 P.2d 821 (1970). Ambiguity may be found when, after the application of the relevant rules of interpretation to the face of the insurance contract, the words intended to express the meaning and intent of the parties may be construed to reach more than one possible meaning. Western Casualty & Surety Co. v. Budig, 213 Kan. 517, 519, 516 P.2d 939 (1973). “If the language when given its everyday commonly accepted meaning is clear and specific in presenting the subject matter at hand, the objective to be accomplished, the burdens assumed, and the benefits to be enjoyed or received, then the terms of the insurance policy cannot be said to be doubtful of meaning or conflicting in terms. Under these circumstances, courts are not at liberty to indulge in a construction that would give an unnatural meaning to the language in order to accomplish results that could not be shown to have been in the minds of the parties. [Citations omitted.]” Casey v. Aetna Casualty & Surety Co., 205 Kan. at 499. In undertaking this analysis, the test is “not what the insurer intends the words of the policy to mean, but what a reasonable person in the position of the insured would have understood them to mean.” 205 Kan. at 499. Defendant contends that the meaning of principal wage earner is clear and does not give rise to an ambiguity, triggering invocation of the general rule that provisions of the contract must be construed in favor of the insured. The defendant proposes several possible definitions of eligible dependent and principal wage earner which .are based upon statutory and secondary source definitions. It then concludes that primary breadwinner is a reasonable definition. Plaintiff argues that this definition still does not resolve the interpretation of principal wage earner. For example, she suggests that she is not certain whether gross or net income is to be considered; whether full-time or part-time work is relevant; whether wage includes unemployment compensation, workmen’s compensation, governmental assistance, etc. She also argues that if the amount of income is the determinative factor, it still is not clear on the face of the policy over what time period such computation is to be made, i.e., the effective dates of the policy, the taxable year in which the policy was obtained as urged by the defendant, or some other time span. She also points out the difficulties in determining the principal wage earner that could result when the policy had been renewed for several years. As will be discussed below, the trial court did not attribute much significance to defendant’s failure to include information about the time period that should apply. Defendant’s resort to statutes and secondary sources for assistance in defining what the terms principal wage earner and eligible dependent mean is some indication of the problems it encountered in settling upon a definition. It would be difficult to find that the trial court could have applied the natural meaning to these terms in order to avert a finding of ambiguity. We find that the definition of principal wage earner is not clear. Accordingly, the trial court’s conclusion that the insurance policy was ambiguous is sustained. As an ambiguity exists in this policy, the interpretation most favorable to the insured must prevail. Fancher v. Carson-Campbell, Inc., 216 Kan. 141, 146, 530 P.2d 1225 (1975); Goforth v. Franklin Life Ins. Co., 202 Kan. 413, 449 P.2d 477 (1969). “Since the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage provided in the policy, it must use clear and unambiguous language in doing so; otherwise, the policy will be liberally construed in favor of the insured.” Goforth v. Franklin Life Ins. Co., 202 Kan. at 417. The trial court extensively discussed the bases for its interpretation of the policy. In deciding that the plaintiff’s claim should be honored by the defendant insurance company, the trial court chastised the defendant for not providing plaintiff with information at the time she applied for the policy to guide her in assessing whether or not the decedent was an eligible dependent spouse. If eligibility was dependent upon who earned the most money, the court found that it would have been incumbent upon the insurer to require the necessary financial information at the time of application for the policy, and to also provide for obtaining needed information if the financial status of the parties changed during the effective period of the policy. Thus, after the claim was made, the insurer unfairly concluded that decedent was the principal wage earner on the basis of the couple’s 1976 tax returns when defendant had not earlier informed plaintiff that it would use this method to establish eligibility. The trial court further found that the decedent was not the principal wage earner and specifically refused to ground its decision on the precise dollar amounts earned by the parties either during the 1976 taxable year or during the life of the policy. The court noted that there were a number of tests that could be employed to determine principal wage earner, but the defendant failed to apprise plaintiff of the one it intended to utilize. The court seemed to be acknowledging the realities of modern family life when it stated: “And-1 find that in many family units today there is not a principal wage earner, as such, and that one applying for insurance under this policy under that definition [eligible dependent] could very well feel that the other spouse was not the principal wage earner in the family unit and this can go on and on. If one’s spouse was engaged in a high income kind of employment for a few months a year and was out of work the balance of the year, there are all kinds of possible, hypothetical situations one can imagine in which the question based upon dollars alone would not enlighten one as to who is the principal wage earner in the family. So, I do find that those provisions are ambiguous and the definition is open to question and I find, further, that in this particular contract that the definition on its face would seem to certainly include the decedent . . . the insured applying for insurance could very well honestly feel that her husband was not the principal wage earner in the family unit because they both earned approximately the same amount of money.” While the amount of gross income earned by each of the parties may be one relevant factor in determining whether decedent was an eligible dependent, we do not find that it is controlling as defendant urges. Therefore, although there is some dispute as to the amounts earned by plaintiff and decedent during the effective date of the policy, this question is not material as there was other sufficient evidence to support the finding of the trial court, and accordingly, summary judgment in favor of plaintiff was properly entered. The decision of the trial court finding that an ambiguity existed in the insurance policy and interpreting that policy in favor of the plaintiff should be affirmed. Defendant next contends that the trial court erroneously awarded plaintiff attorney fees pursuant to K.S.A. 40-256 principally on the basis that there was a bona fide dispute between the parties as to whether or not the decedent was an eligible dependent within the meaning of the contract. Plaintiff asserts, however, that she did everything required under the policy, i.e., she properly applied for the insurance policy, made all premium payments, and timely submitted written proof of loss. The defendant did not attempt to define principal wage earner until plaintiff made a claim for her husband’s death. The trial court awarded attorney fees to plaintiff on the grounds that it was the defendant which drafted the insurance policy and failed to define the crucial terminology, which failed to obtain necessary financial information at the time the plaintiff applied for the policy, and which received premiums from the plaintiff. Only after the claim was filed did defendant determine that the meaning of eligible dependent spouse was contingent upon which spouse earned the most money during the 1976 taxable year. K.S.A. 40-256 authorizes the trial court in an action against an insurance company to award plaintiff a reasonable sum for attorney fees “if it appears from the evidence that such company . . . has refused without just cause or excuse to pay the full amount of such loss.” The insured bears the burden of proving by a preponderance of the evidence that the insurance company refused to pay “without just cause or excuse.” Thompson Transport Co. v. Middlestates Construction Co., 195 Kan. 172, 403 P.2d 999 (1965); Salt City Business College, Inc. v. Ohio Cas. Ins. Co., 4 Kan. App. 2d 77, 602 P.2d 953 (1979). Brown v. Combined Ins. Co. of America, 226 Kan. 223, 597 P.2d 1080 (1979), summarizes the general rules applicable before attorney fees may be assessed under K.S.A. 40-256. It first cites Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 470 P.2d 756 (1970), as follows: “ ‘Generally speaking, it is a question for the district court as the trier of the facts to determine whether an insurance company has refused to pay the full amount of an insured’s loss “without just cause or excuse” thereby subjecting itself to payment of an attorney’s fee under K.S.A. 1968 Supp. 40-256. . . . “ ‘It has been held that whether an attorney’s fees are to be allowed depends upon the facts and circumstances of each particular case. (Parker v. Continental Casualty Co., 191 Kan. 674, 383 P.2d 937; Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P.2d 34.) Where the only issue between the parties is a factual dispute with respect to coverage under an insurance policy, and the insurer has refused to pay the full amount of the insured’s loss for such reason, we are of the opinion the phrase “without just cause or excuse” as used in K.S.A. 1968 Supp. 40-256, means a frivolous and unfounded denial of liability. However, if there is a bona fide and reasonable factual ground for contesting the insured’s claim, there is no failure to pay “without just cause or excuse.” And whether there was any reasonable ground for contesting the claim depends upon circumstances existing when payment is withheld or liability is declined. It is not necessarily determined by the outcome of the ensuing litigation. (Wolf v. Mutual Benefit Health & Accident Association, supra [188 Kan. 694].) The statutory penalty is not to be imposed merely for the reason that it turned out at the trial in the district court, there was, in reality, no reason for denial of liability. The question is, how did the matter appear before the trial as judged by a reasonable and prudent man seeking to determine the facts of the controversy which it was his duty in good faith to investigate.’ pp. 564-565. “See also Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 512 P.2d 403 (1973). Prior to such ‘refusal’, the insurance company has a duty to make a good faith investigation of the facts. Lord v. State Automobile and Casualty Underwriters, 208 Kan. at 234; Koch, Administratrix v. Prudential Ins. Co., 205 Kan. at 565.” Brown v. Combined Ins. Co. of America, 226 Kan. at 226-27. If the claim involves a good faith legal controversy, especially one that is a matter of first impression in this jurisdiction, there may be just cause or excuse for insurer’s refusal to pay a claim. Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 599, 528 P.2d 134 (1974); Sloan v. Employers Casualty Ins. Co., 214 Kan. 443, 521 P.2d 249 (1974). The parties obviously disagree with respect to the meaning of the term eligible dependent. The insurer may have been at fault in not requiring financial information at the time plaintiff applied for the contract, in not defining principal wage earner in the contract, and/or in not totally explaining why it refused to cover the loss. Despite the delay, inconvenience and possible mental anguish the defendant’s actions may have caused the plaintiff, we conclude that this is not the kind of situation that warrants assessing attorney fees against the defendant insurer and that the court erroneously awarded plaintiff attorney fees. Judgment as to attorney fees is reversed. Affirmed in part and reversed in part.	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Foth, C.J.: The primary issue in this case is whether our comparative negligence statute is applicable in an action for consequential damages for breach of contract. We hold it is not. The controversy arose out of the construction of eighteen concrete grain storage cylinders at a grain elevator at Howell, Kansas. In the fall of 1976 the elevator owner, Dodge City Cooperative Exchange, contracted with Farmland Industries of Kansas City, Missouri, to build the new facility. Farmland, as general contractor, hired the defendant, Mel Jarvis Construction Co., Inc., as construction contractor to do the actual building. Jarvis, in turn, contracted to acquire its concrete from plaintiff Broce-O’Dell Concrete Products, Inc. Construction was by the “slip-form” method where concrete was poured into a form and, as the concrete hardened, the form was slipped up and fresh concrete poured into the form on top of the hardening concrete underneath. All eighteen cylinders were poured at once. Pouring began in the morning of January 24, 1977, and continued throughout the day, with temperatures just above freezing. At the end of the day the pouring had reached six feet, with thirty inches showing underneath the form. Inspection by Jarvis personnel that evening revealed sloughing of the visible concrete. Inspection of the Broce facility where the concrete was being prepared revealed what appeared to the Jarvis inspector to be two blatant defects: frozen aggregate in the mix, some in chunks as large as footballs; and inadequately heated water. (Jarvis also claimed later that insufficient cement was used, so that the concrete lacked strength.) Jarvis personnel worked with Broce personnel to remedy the perceived defects in the mixing process. The next day Jarvis did no pouring while it made temporary repairs on the sloughing. It then decided to continue pouring to the 30-foot level, make a more detailed inspection, and then determine the feasibility of permanent repairs to the first six feet. However, after about 32 feet of the projected height of 130 feet had been reached the owner, Dodge City Co-op, indicated its dissatisfaction with the construction and the concept of repairing the first six feet. Farmland and Jarvis then agreed that to satisfy their customer the entire 32 feet should be torn down and rebuilt. Farmland agreed to pay Jarvis $60,000 toward the estimated cost of $150,000, to be recouped by way of 40% of any net recovery Jarvis might effect from Broce, up to $150,000. When Broce instituted this action for its unpaid concrete bill of $19,664.55, Jarvis counterclaimed for the actual cost of tearing down and rebuilding to the 30 foot level, in the amount of $157,279.93. By agreement of the parties the case was tried to a jury on the counterclaim alone. The jury returned a verdict for Jarvis in the amount of $52,426.64. Broce appeals. The first and primary claim of error is the trial court’s refusal to instruct the jury on comparative negligence under PIK Civ. 2d 20.01 and 20.02. Under Broce’s theory, if 50% or more of Jarvis’s damages were attributable to Jarvis, there could be no recovery. The court rejected this theory and instead the jury was instructed: “If you find that Jarvis is entitled to recover damages for breach of implied warranty or express warranty, then in fixing the amount of damages you should not include any loss that he could have prevented by reasonable care and diligence or was caused by Farmland Industries.” The jury apparently took such instruction to heart because during deliberations it asked the court who had made the decision to proceed from six feet to 30 feet, and received a read-back of the testimony recounting how Jarvis reached that decision. The verdict reached shortly thereafter was exactly one-third the uncontested cost to Jarvis. The ready inference is that the jury found Broce not responsible for the decision to go from six to thirty feet, and that the costs resulting from that decision should be borne by Jarvis. There is no claim that the amount of damages or the allocation of “fault” is not supported by the evidence. We think the trial court was correct in rejecting comparative negligence. The case was tried as a breach of contract case, and the jury was instructed without objection that the claim was for breach of express warranty and implied warranty of fitness for a particular purpose. Damages were sought only for pure economic loss occasioned by the breach. Our comparative negligence statute, K.S.A. 60-258a reads: “(a) The contributory negligence of any party in a civil action shall not bar such party or said party’s legal representative from recovering damages for negligence resulting in death, personal injury or property damage, if such party’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made . . . .” Emphasis added. The decisions construing our comparative negligence statute have a common thread running through them — all involved death, personal injury or property damage. No case applies the statute to purely economic loss resulting from a breach of contract. Although Kansas interjects comparative negligence principles into areas which “previously were considered beyond the ordinary tort negligence situation” (Kennedy v. City of Sawyer, 228 Kan. 439, 452, 618 P.2d 788 [1980]), the court in Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), had qualified the application of the statute by stating: “If contributory negligence or an analogous defense would not have been a defense to a claim, the comparative negligence statute does not apply; if contributory negligence would have been a defense, the statute is applicable.” 227 Kan. at 845. Emphasis in original. And see Sandifer Motors, Inc. v. City of Roeland Park, 6 Kan. App. 2d 308, 628 P.2d 239 (1981), rev. denied July 15, 1981. (Comparative negligence applies in nuisance case to the extent the nuisance is based on negligence, based on the availability of contributory negligence as a common law defense.) It is well settled that contributory negligence is no defense to a breach of contract. Carter v. Hawaii Transportation Co., 201 F. Supp. 301 (D. Hawaii 1961); Trinity Universal Insurance Co. v. Fuller, 524 S.W.2d 335 (Tex. Civ. App. 1975); Rotman v. Hirsch, 199 N.W.2d 53 (Iowa 1972); 17A C.J.S., Contracts § 525(1), p. 1018. Express warranties are contractual in nature, Young & Cooper, Inc. v. Vestring, 214 Kan. 311, 521 P.2d 281 (1974); Brunner v. Jensen, 215 Kan. 416, 524 P.2d 1175 (1974). The manufacturer’s negligence plays no role, Cantrell v. R. D. Werner Co., 226 Kan. 681, 685, 602 P.2d 1326 (1979). All the plaintiff must show is a failure of performance as warranted—a specific defect need not be proved. Scheuler v. Aamco Transmissions, Inc., 1 Kan. App. 2d 525, Syl. ¶ 2, 571 P.2d 48 (1977). The court in Huebert v. Federal Pacific Electric Co., Inc., 208 Kan. 720, 494 P.2d 1210 (1972) concluded in Syl. ¶ 2: “Contributory negligence or assumption of risk as normally used are not defenses to an action based on breach of an express warranty; however, an unreasonable use of a product after discovery of a defect and becoming aware of a danger is a defense.” Emphasis added. As to implied warranty, Kennedy v. City of Sawyer, 228 Kan. at 439, expressly held “the doctrine of comparative fault or comparative causation should be and is applicable to both strict liability claims and to those claims based on implied warranty in products liability cases.” Concededly the fact a products liability case is based on implied warranty does not prevent the application of comparative fault principles. This, however, is not a products liability case: There is no claim of injury to person or property from a dangerous product, but only of economic loss through the furnishing of a defective product. Unless a breach of warranty, either express or implied, causes death, personal injury or physical damage to property, the comparative negligence statute does not apply. If the result is simple economic loss, liability and damages are governed by breach of contract principles. Of course “fault” does play some part in contract actions in that it may bear on the broader question of damages. One who breaches a contract is liable for damages caused by the breach; he is not liable for damages flowing from other causes whether or not those other causes have the connotations of culpability associated with the term “fault.” In this case it may be said that it was Jarvis’s “fault” that 26 feet of good concrete were poured on top of six feet of bad concrete, even though the decision to pour may have been entirely reasonable. However, the fact that more than half Jarvis’s loss may have been attributable to its own decision should not and does not mean it may not recover that portion of its loss caused by Broce’s breach of contract. The instructions given and verdict reached attained that result and cannot be disturbed. Broce’s second claim of error is that the trial court, when asked by the jury during deliberations about the cost of the concrete furnished, should have furnished the $19,664.55 figure agreed upon. Instead the court told the jurors it was not to enter into their considerations. Error cannot be predicated on this occurrence for at least two reasons: First, there was no objection to the court’s response or any contrary suggestion offered — thus, the contemporaneous objection rule is applicable. Second, the parties had stipulated that the jury trial was to be on the counterclaim alone — Jarvis was cast in the role of plaintiff, Broce in that of defendant. The parties had stipulated the cost of concrete but that stipulation had not been submitted to the jury, presumable because neither party deemed it relevant to the issues of breach, damages and causation which the jury was to decide. We, also, cannot see how it was relevant to those issues. In addition, the court’s treatment of the concrete cost question was fully in accord with the agreement of the parties. On post-trial motion the court concluded that Broce had been found in breach of its warranty and therefore could not recover for its nonconforming goods which were ultimately of no use to the buyer. No claim of error is made regarding this ruling. Finally, Broce claims it should be allowed a pro tanto credit for a portion of the $60,000 paid to Jarvis by Farmland under their agreement to tear down the 32 feet and rebuild. The argument is that Jarvis has already recovered a large share of its damages from Farmland and should not be entitled to recover again from Broce. This overlooks the fact the decision to tear down and rebuild cost Jarvis over $157,000. Even if it were not obligated to share the recovery against Broce with Farmland, but could keep the entire $52,000 plus Farmland’s $60,000, Jarvis would still be out-of-pocket $45,000. As it is, after deducting litigation expenses 40% of this judgment must be paid to Farmland. We fail to see how Jarvis is recovering its damages twice. Additionally, there is nothing to show Farmland paid the $60,000 to fulfill any legal or moral obligation, or that its purpose was to compensate Jarvis for damages caused by Broce. Farmland’s motive, according to the only evidence presented, was simply to induce Jarvis to tear down and rebuild rather than repair, so as to satisfy the Dodge City Co-op. There was certainly no intent that Broce should benefit by the payment. We conclude there was no error in disallowing Broce’s claim for a credit. Affirmed.	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Cook, J.: Plaintiff appeals from a judgment entered by the district court following a trial on the merits. The action was a sequel of sorts to the Carpenter murder cases which have been before the Supreme Court on three separate occasions. (State v. Carpenter, 215 Kan. 573, 527 P.2d 1333 [1974]; Carpenter v. State, 223 Kan. 523, 575 P.2d 26 [1978]; State v. Carpenter, 228 Kan. 115, 612 P.2d 163 [1980].) Leah Chute, Administratrix of the Estate of Willis Upshaw, deceased, brought this action to recover from the defendant, Old American Insurance Company, the proceeds of two policies of life insurance issued by defendant upon the life of Upshaw. Tawnya R. Upshaw, Toni R. Upshaw and Troy W. Upshaw are the natural children of Leah Chute, born to her during and as a result of her marriage to Willis Upshaw, the natural father of said minor children. It is undisputed that the minor children are all of the heirs at law of Willis Upshaw under the law of intestate succession of the State of Kansas. Willis Upshaw was employed by separate partnerships comprised of Jan Carpenter and Eben W. “Bill” Carpenter, as equal partners, d/b/a C & C Security Company and C & C Ambulance. He worked intermittently as a patrol guard and ambulance attendant for the two companies. On May 16, 1972, the Carpenters initiated the purchase of life insurance policies upon the life of Willis Upshaw. On that date Upshaw signed applications with Old American for two insurance policies of $50,000 each, naming C & C Security Company and C & C Ambulance Company, respectively, as beneficiaries under the policies. The defendant declined to issue policies in that amount but did issue two policies in the amount of $25,000 each, and these policies were delivered to the Carpenters on June 15 or June 16, 1972. A premium check in the amount of $239.10 dated June 15, 1972, was delivered to defendant’s agent upon delivery of the policies. The evidence at trial revealed that the Carpenters had also made application on or about June 8, 1972, to American Home Life Insurance Company for life insurance on the life of Upshaw, with the Carpenters as beneficiaries, in the amount of $70,000 with double indemnity provisions. Although there was testimony that defendant would not have issued its two policies if knowledge of the additional insurance had been acquired, there were no provisions in defendant’s application forms which required this information. The only information requested of the applicant was whether there was “any other application for life, accident, sickness or hospital insurance now pending in this or any other company.” (Emphasis added.) Willis Upshaw was murdered on July 2, 1972. Subsequently, Donald Brenner, the “trigger-man,” and Jan Carpenter pled guilty to, and Eben W. Carpenter was tried and found guilty of second-degree murder and were sentenced. Following the death of Upshaw, the Carpenters attempted to collect the proceeds of the two policies but were precluded from recovery since they were guilty of-the murder of Upshaw. This lawsuit was then brought by Leah Chute, administratrix of the Upshaw estate. Following a trial on the merits, the court entered judgment for the defendant, holding that the Carpenters intended to murder Upshaw at the time the policies were obtained and thus the policies were void ab initio because of such fraud. Plaintiff contends the trial court erred in the following respects: (1) by failing to find the plaintiff proved a prima facie case indicating that she should recover against the defendant; (2) in concluding that the policies of insurance were void ab initio; (3) in determining that the defendant’s failure to return or tender the premiums paid did not preclude their presentation of defenses which involved misrepresentation; (4) in allowing hearsay testimony; and (5) in failing to sustain the plaintiff’s motion for summary judgment. We will consider each of the contentions in the order designated. Plaintiff first asserts she has proven that policies of insurance were issued on the life of Willis Upshaw; that the premiums thereon were paid and at no time prior to the death of Upshaw was any notice of cancellation given to anyone; that Upshaw was murdered by the beneficiaries of the policies who by reason of their felonious deeds are disqualified to receive the benefits of the policies; that an insurance company is not relieved of liability under a life insurance policy merely because the beneficiary’s right to recover is forfeited by reason of the felonious killing of the insured by the beneficiary but, rather, is liable to pay the proceeds of the policy to the insured’s estate; and that she, as the duly appointed administratrix of Upshaw’s estate, is the proper party to bring this action to recover the proceeds of the policies. Therefore, plaintiff reasons she has “met her burden and proved that the Defendant is obligated to pay the Plaintiff all sums due under the policies in question . . . Plaintiff’s reasoning and conclusion would be correct except for the fact she ignores the finding of the trial court that the Carpenters had formed an intent to kill Upshaw at the time the policies were issued. K.S.A. 59-513 provides that: “No person who shall be convicted of feloniously killing, or procuring the killing of, another person shall inherit or take by will, by intestate succession, as a surviving joint tenant, as a beneficiary under a trust or otherwise from such other person any portion of the estate or property in which the decedent had an interest . . . .” (Emphasis added.) In Noller v. Aetna Life Ins. Co., 142 Kan. 35, 41, 46 P.2d 22 (1935), the court, interpreting the prior statute containing similar language, held that the words “or otherwise” would apply to a case where the person who did the killing was the beneficiary in an insurance policy. Plaintiff is correct in proclaiming that an insurer is not relieved of liability under its policy simply because the beneficiary killed the insured. 46 C.J.S., Insurance § 1171 states, in part, as follows: “Liability of company to estate. Ordinarily where the assignee or beneficiary is defeated by his felonious act in causing the death of insured, the liability of the company, sometimes by virtue of statutory provisions, is not canceled or extinguished; and in such case the amount of the policy becomes payable, as part of insured’s estate, to the heirs or personal representatives who in the absence of the assignment or designation of a beneficiary would have been entitled to the proceeds of the insurance, even though it is not expressly so provided by statute.” (pp. 58-59.) See Protective Life Ins. Co. v. Linson, 245 Ala. 493, 17 So. 2d 761 (1944); Knights of Honor v. Menkhausen, 209 Ill. 277, 70 N.E. 567 (1904); Kascoutas v. Federal Life Ins. Co., 193 Iowa 343, 185 N.W. 125 (1921); National Life Ins. Co., etc. v. Hood’s Adm’r, 264 Ky. 516, 94 S.W.2d 1022 (1936); Slocum v. Metropolitan Life Ins. Co., 245 Mass. 565, 139 N.E. 816 (1923); Sharpless v. Ancient Order of United Workmen, 135 Minn. 35, 159 N.W. 1086 (1916); Equitable Life Assur. Soc. of the U.S. v. Weightman, 61 Okla. 106, 160 Pac. 629 (1916); Smith v. Todd, 155 S.C. 323, 152 S.E. 506 (1930). There is, however, an exception to the above rule which plaintiff has overlooked in her conclusion that she was entitled to recovery on her claim against defendant. That exception is set forth at 4 Couch on Insurance 2d § 27:159 (1960): “An exception to the rule that the liability of the insurer is not affected by the beneficiary’s unlawfully killing the insured may arise when the beneficiary is also guilty of fraud with respect to the insurer. For example, if it is established that the beneficiary conceived the idea of murdering the insured prior to the time the insurance was procured and with that thought in mind the beneficiary himself procured the policy, either in person or acting through the insured as an innocent instrumentality so that the insurance policy was, in actual effect, at its inception a contract between the beneficiary and the insurance company, as distinguished from a contract between the innocent insured and the company, the insurance company may defeat liability on the ground of fraud. Under this principle recovery is barred even by the estate of the insured.” In a discussion of the same subject matter, at 46 C.J.S., Insurance § 1171, it is stated that if a life insurance policy “was procured by the beneficiary with the predetermined intent to murder [the] insured, it is wholly void at its inception for fraud . . . .” p. 59. See also 1A Appleman, Insurance Law and Practice § 382 (1965). This “predetermination to kill” rule was considered in Colyer’s Adm’r v. New York Life Ins. Co., 300 Ky. 189, 188 S.W.2d 313 (1945). In that case the beneficiary murdered the insured within a short time after purchasing insurance. The jury found that at the time the life insurance was obtained, Duncan, the beneficiary, had already determined to kill Colyer, the insured. Upon this finding the trial court entered judgment for the insurance company, holding that the insured’s estate could not recover under the policy. On appeal the Kentucky Supreme Court stated: “In the case at bar it is clearly established that there was a predetermination on the part of Duncan, before the policy was issued, to kill Colyer. Under such a circumstance there can be no recovery, either on the part of the beneficiary or the estate of the insured, because the contract of insurance was void from the inception.” p. 192. See also New England Mut. Life Ins. Co. v. Null, 554 F.2d 896 (8th Cir. 1977); New England Mut. Life Ins. Co. v. Calvert, 410 F. Supp. 937 (E.D. Mo. 1976); Aetna Life Ins. Co. v. Strauch, 179 Okla. 617, 67 P.2d 452 (1937). From the foregoing, it appears to be a well-established rule of law that an insurer is relieved of all liability under a life insurance policy if it can be proved that the policy was procured by the beneficiary who intended at the time the insurance was secured to murder the insured. We see no reason why this rule should not be adopted in this state. In the instant case, plaintiff asserts that even if the “predetermination to kill rule” is recognized in Kansas, the trial court erred in finding defendant had proved by clear and convincing evidence that Carpenters intended to kill Upshaw for the proceeds of the life insurance policy at the time the policies were procured. We do not agree. In order to meet her burden for recovery in this case, plaintiff was only required to prove that the policies were issued and premiums paid, they were not cancelled, and that the insured was killed by the beneficiary who became disqualified to receive the policy proceeds. Even though that burden was borne by plaintiff, it does not follow that the trial court erred in failing to grant her judgment. Defendant in its answer alleged fraud in the procurement of the policy and had the right to go forward with evidence to prove that defense. In so doing it was necessary for defendant to prove the alleged fraud by clear and convincing evidence. As was stated in Hoch v. Hoch, 187 Kan. 730, 732, 359 P.2d 839 (1961): “It is hardly necessary to list the citations of authority on the long-standing rule in this state that one who asserts fraud must prove it by a preponderance of the evidence; that such evidence should be clear, convincing and satisfactory, and that it does not devolve upon the party charged with committing the fraud to prove the transaction was honest and bona fide. Fraud is never presumed; it must be proved. Mere suspicion is not sufficient. [Citations omitted.]” The trial court found that this burden was sustained by defendant by proving “that at the time of the application of the insurance on the life of Upshaw, it was the clear intent of the two partners to kill Mr. Upshaw and recover the benefits and to receive the benefits of the policy.” Did the evidence support this finding? Where the trial court makes findings of fact and conclusions of law, as was done in this case, “the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law.” City of Council Grove v. Ossmann, 219 Kan. 120, Syl. ¶ 1, 546 P.2d 1399 (1976). At trial, defendant called Donald Brenner as a witness. Brenner was an employee of the Carpenters during the time in question. It was he who admittedly killed Upshaw and subsequently entered his plea of guilty to a charge of murder in the second degree. He had also been called as a State’s witness in the prosecution of Eben W. Carpenter. The pertinent portions of Brenner’s testimony in the instant case were as follows: “Q. (By Mr. Marshall) Where did you first have a discussion with the Carpenter’s concerning their plan, which was stated to you, regarding Mr. Upshaw and his disposition? “A. The parking lot area of their offices. “Q. (By Mr. Marshall) How long in time was that prior to July 2nd, 1972? “A. As best I can recall, it was a month. Maybe six weeks, somewhere in that time span. I can’t give you more definite than that. “Q. Who was present at the time of the conversation? “A. Jan Carpenter, Bill Carpenter and myself. “Q. Now which of them, if either, was doing the talking or making the conversation? “A. As my memory serves me, I believe it was Bill. “Q. I want you to tell the Judge what Bill Carpenter said about their plans with regard to Upshaw at that time. “A. Like I said, he had just come from his attorney’s office, at that time Erny Rice. And he came up there and said Erny says, ‘We have got to kill that damn Upshaw off.’ That was almost the exact quote he made. And this was a month or six weeks, somewhere along in there. “Q. And what further conversation was there at that time concerning their plan or intention to carry that out? “A. I couldn’t really say at that time what plan they discussed. I know there were later discussions where they were trying to figure out some way to do it. “Q. (By Mr. Marshall) Let’s go to the next occasion when there was first a discussion about carrying this plan out. Where did that discussion take place? “A. The next one I can think of was in the back bay. It was a converted garage and it was in the back bay area of the office area. In other words, where the office building was, and Jan and Bill were talking about in my presence. “Q. (By Mr. Marshall) Can you tell us approximately how long after this first discussion or how long before July 2nd? “A. I would say within a week after the first discussion. “Q. And tell the Judge what was said at that time. “A. It was in the afternoon because I had just gotten off work at 4:00 o’clock. They were talking about setting him up some way to make it look like he had, for instance, been changing a tire on his car at Stubbs Road. And getting a jalopy someplace and running over him that way to make it look like an accident. That is the first discussed plan I heard them talking about. “Q. Did discussions later continue regarding other plans? “A. Yes. I can’t remember the dates or the place. Other than I can remember some conversations, but I couldn’t give you a date or a place. Like I say, it has been eight years. “Q. In any event, it was between the date of this discussion about using an auto accident and the date of the murder, wasn’t it, or the killing? “A. Yes. “Q. Can you pinpoint the date any better than that? “A. No; I am afraid not. I couldn’t. “Q. [By Mr. Hecht] The conversation which you testified to, sir, that occurred at a time and shortly after or on the same day that one of the Carpenters had come from Mr. Rice’s office - “A. Yes. The initial conversation, yes. “Q. Could it have been less than a month before the actual killing? “A. I don’t think so. I think it was probably closer to six weeks. But I will give you a time frame of a month to six weeks. That is really as close as I could give you, really.” The trial court found that the application for insurance was made on May 16, 1972, and that the policies were issued on June 16, 1972. The court further found that “the insurance policies were obtained with the intention on the part of the owners and beneficiaries of the policies to murder Upshaw.” There was no attempt made by the plaintiff to rebut the testimony of Brenner that the Carpenters had formed the intent to murder Upshaw at least four weeks, and perhaps six weeks, prior to his murder on July 2, 1972. Therefore, the evidence clearly established that the beneficiaries of the policies in question first formed an intent to murder the insured between May 20, 1972, and June 2, 1972, well before the issuance and delivery of the policies. We now come to the real crux of this appeal. Plaintiff points out, and correctly so, that there was absolutely no evidence presented in the trial that the Carpenters had ever formed an intent to murder Upshaw prior to, or at the time of, the application for insurance. Therefore, plaintiff argues, defendant failed in its burden to prove an intent to defraud at the time the policies were procured. Plaintiff further argues that an intent to murder the insured after the application was filed and while waiting for approval would not constitute fraud. In support of her argument, plaintiff cites Meyer v. Johnson, 115 Cal. App. 646, 2 P.2d 456 (1931), and Aetna Life Ins. Co. v. Strauch, 179 Okla. 617. Those cases, however, do not support plaintiff’s contentions. In Meyer the insurer did not assert or attempt to prove that the beneficiary either procured the policy or possessed an intent to murder at the time of issuance. The court in Strauch recognized the principle that when a beneficiary, either in person or acting through the insured as an innocent instrumentality, procures a policy of life insurance, intending at the time to murder the insured, the insurance company may defeat liability on the ground of fraud. The court noted that such defense would not be available simply because the beneficiary or some other party entertains a secret intent to murder one who is procuring insurance so long as “the expected murderer does not participate in procuring the insurance in such a manner to become, in effect, the party who contracts with the insurance company.” 179 Okla. at 618. It may be conceded that most, if not all, of the textbook authorities, along with most reported cases, refer to the time of the “procurement” of the policy when determining the intent of the beneficiary. (46 C.J.S., Insurance § 1171; 4 Couch on Insurance 2d § 27:159; 1A Appleman, Insurance Law and Practice § 382; N.Y. Mut. Life Ins. Co. v. Armstrong, 117 U.S. 591, 29 L.Ed. 997, 6 S.Ct. 877 [1886]; Aetna Life Ins. Co. v. Strauch, 179 Okla. 617.) Plaintiff would limit our interpretation of that term to mean at the time of “application” of the policy. We believe such a limited construction .would serve to defeat the obvious intent of the “premeditation to kill” rule. Insurance companies are entitled to the same protection against fraudulent contracts as any other contracting party under similar circumstances. The law will not enforce the provisions of a contract when one party has fraudulently induced the other party to assume a liability that he would not have accepted except for the fraudulent representation. An application for insurance is not a contract of insurance; it is only an offer to purchase insurance. The contract does not come into existence until the offer is accepted and the policy is issued and delivered, or premiums are accepted. If fraud is perpetrated by one of the parties to the contract prior to the effective date of the policy, liability may be avoided by reason of the fraud. To avoid liability under such circumstances, it is sufficient to show that the fraud was committed prior to the effective date of the policy. We can find no rationale to limit the fraud to the time of application rather than to the effective date of the policy. In Colyer’s Adm’r v. New York Life Ins. Co., 300 Ky. at 191, the trial court instructed the jury as follows: “The Court further instructs the jury that if it shall believe from the evidence that the said Finley Duncan procured Edward Colyer to make application for such policy, or to pay the premium thereon, or to designate the said Finley Duncan as beneficiary thereof, and that at the time said policy was applied for or was issued, or was delivered or the premium thereon was paid, the said Finley Duncan had already determined to slay, kill and murder the said Edward Colyer, then the jury will return a verdict for the defendant, New York Life Insurance Company.” (Emphasis added.) On appeal the foregoing instruction was approved and the court held that under such circumstances “there can be no recovery, either on the part of the beneficiary or the estate of the insured, because the contract of insurance was void from its inception.” p. 192. The uncontradicted evidence in the instant case revealed that the Carpenters enticed Upshaw to apply for two policies of life insurance and to name them as beneficiaries thereon; that prior to the issuance and delivery of the policies and the payment of premiums thereon, the beneficiaries determined to murder the insured. We therefore hold the trial court did not err in finding the policies void ab initio. We need to touch upon one further matter before leaving this issue. Plaintiff contends the evidence failed to show that the Carpenters intended to murder Upshaw for the insurance proceeds and, therefore, defendant failed to prove the policies were procured by the partners with the intention of killing the insured. The record reveals that neither party inquired of Donald Brenner as to why the Carpenters wanted Upshaw murdered. However, his testimony did reveal the following: “Q. (By Mr. Marshall) Mr. Brenner, at any time during this period of time, did you overhear any discussion, or were you told by the Carpenter’s concerning what plans they had for the insurance money upon the death of Upshaw? “A. Yes. “Q. (By Mr. Marshall) I am not asking you the date. I just want you to tell the Judge the best you can when you had these discussions with reference to either July 2nd or— “A. (Interrupting) I think the discussion in this reference, I believe, was after the incident. But I could not swear to that for sure. “Q. You mean after the death? “A. After the death, yes. Could have been close one way or the other. I really don’t remember.” Was it necessary, as plaintiff claims, for defendant to prove by direct evidence that the motive for murdering Upshaw was to collect the insurance proceeds or may the same be inferred from the other competent evidence in the case? Fraud is normally a secretive act and must be concealed for success. This is especially true where the fraud, as here, amounts to a criminal act which, if exposed, will result in criminal prosecution. Therefore, considerable latitude should be granted in the introduction of evidence to prove the fraud. Brakefield v. Shelton, 76 Kan. 451, 453, 92 Pac. 709 (1907). Seldom can fraud be expressly shown, and evidence of the circumstances of the transaction itself must often be relied upon to establish the fraudulent act. Breidenthal v. Breidenthal, 182 Kan. 23, 30, 318 P.2d 981 (1957). Kansas has long recognized the general rule that fraud may be shown by circumstantial as well as by direct and positive proof. Kansas Wheat Growers Ass'n v. Windhorst, 129 Kan. 528, 283 Pac. 638, modified at 131 Kan. 423, 292 Pac. 777 (1930); Hampson v. Spong, 103 Kan. 400, 173 Pac. 909 (1918); and Kurt v. Cox, 101 Kan. 54, 165 Pac. 827 (1917). Even though it must be proved by a preponderance of the evidence which must be clear and convincing, fraud, like any other fact, may be proved by showing circumstances from which the inference of fraud is natural and irresistible; and if such circumstances are established and they are of such a character as to produce in the mind of the trier of fact a conviction of the fact of fraud, then it must be considered that fraud is proven. Reeser v. Hammond, 122 Kan. 695, 697-98, 253 Pac. 233 (1927). The record before us clearly establishes by the direct, uncontradicted testimony of Brenner the intent and scheme of the Carpenters to murder Upshaw prior to the issuance of the insurance policies in question. Further, on June 8, 1972, an additional application for life insurance upon the life of Upshaw was made with another company. It is only logical to infer, in the absence of direct evidence of motive, that the insurance money was at least a contributory, if not the sole, reason for the murder. Presumptions “must have substantial probative force as distinguished from surmise.” Farmers Ins. Co. v. Smith, 219 Kan. 680, 689, 549 P.2d 1026 (1976). We believe the evidence here established the natural and irresistible presumption that the insurance proceeds at least were a motivating factor in the death of Upshaw. The opposing presumption would be that the Carpenters were in no way motivated by the insurance policies when discussing and planning the murder of Upshaw. The policies in question totaled $50,000, a sum difficult to ignore. Such a presumption is totally contrary to common knowledge and experience. We next consider plaintiff’s contention that defendant was estopped from presenting its defense of fraud because it failed to return the premiums received. K.S.A. 40-419 states: “In suits brought upon life policies heretofore or hereafter issued, no defense based upon misrepresentation in obtaining or securing the same shall be valid unless the defendant, at or before the trial, shall deposit in court for the benefit of the plaintiff the premiums received on such policies.” The clear purpose of the statute is to prevent insurance companies from retaining the benefits of premiums paid while at the same time denying coverage. The record reveals that the Carpenters, not the deceased insured, purchased the policies and paid the premiums. Therefore, the plaintiff, as administratrix of Upshaw’s estate, had no legal claim to the premiums paid to defendant. The trial court noted that this issue was not raised until final arguments and would not at that late date estop defendant from proving the contract void ab initio. Under these circumstances the trial court did not err. Although not received into evidence because the issue was only raised after the parties had completed presentation of their evidence, the court observed that defendant had available and could have introduced a copy of a letter from defendant to the Carpenters’ attorney tendering back the premiums received. We next consider the question of hearsay evidence. Plaintiff’s counsel made timely objection to the testimony of Donald Brenner regarding statements made to him, or overheard by him, by the Carpenters. The trial court allowed the testimony as an exception to the hearsay rule under K.S.A. 60-460 (h), (i) or (j). If the court erred, then plaintiff was clearly prejudiced because the basis of the court’s findings of fact was the testimony of Brenner. Without the testimony of Brenner there was no competent direct evidence to support the trial court’s finding that the Carpenters intended to murder Upshaw prior to the issuance of the policies. “Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible” unless otherwise admissible under one of the exceptions enumerated under K.S.A. 60-460. Subsections (g), (h) and (i) of the statute deal with admissions and are indicative of those who may make admissions. To be binding upon a party, the admission must be made by the party in his individual or representative capacity or by his authorized agent. Miller v. Sirloin Stockade, 224 Kan. 32, 34, 578 P.2d 247 (1978). We do not believe that the exceptions set forth in K.S.A. 60-460 (h) or (i) are applicable to the present case as found by the trial court. The Carpenters were not parties to this action nor were they acting in a representative capacity for either party when their statements were made to or in the presence of Brenner. K.S.A. 60-460 (j) provides an exception for declarations against interest and permits the admission of statements which were at the time of their assertion so far contrary to the declarant’s pecuniary, proprietary, penal or social interests that a reasonable man would believe the statements would not have been made unless the defendant believed them to be true. This subsection broadens the former Kansas case law by eliminating the requirements of unavailability of the declarant, and by expanding the interests to include declarations against penal or social interests along with pecuniary or proprietary interests. The former rule was that a declaration of a person who has since died was admissible in evidence if the declaration was against the pecuniary or proprietary interests of the declarant “although not a part of the res gestae, and although the declarant was not a party nor in privity with a party to the action.” Mentzer v. Burlingame, 85 Kan. 641, 643, 118 Pac. 698 (1911). Now the requirement of unavailability is not necessary. As stated in Thompson v. Norman, 198 Kan. 436, 442-443, 424 P.2d 593 (1967): “This [K.S.A. 60-460 (j)] broadens our former law in the realm of declarations against interest by those not parties to the action nor in privity with a party to the action, as exceptions to the hearsay rule. Formerly there was a requirement of unavailability of the declarant as a prerequisite for reception of this character of testimony, and declarations were limited to those against the pecuniary or proprietary interest of the declarant (Hurley v. Painter, 182 Kan. 731, 324 P.2d 142). Now, the statute dispenses with the requirement of unavailability and expands the interests to include penal or social. “The statute does, however, require, as a preliminary measure of trustworthiness, that the trial judge, prior to admission of such a declaration, make a finding that the character of the declaration was of such nature a reasonable man would not make it unless he believed it to be true. Probability of veracity is the safeguard sought; the reasonable man test is the criterion to be used. . . . And it should be kept in mind he is concerned with admissibility, not weight, of evidence.” See also State v. Prince, 227 Kan. 137, 147, 605 P.2d 563 (1980), wherein the court held that the test of admissibility under K.S.A. 60-460 (j) was correctly stated in Thompson v. Norman. It should be observed that some confusion may have been caused in State v. Quick, 226 Kan. 308, 317, 597 P.2d 1108 (1979), wherein the court held: “K.S.A. 60-460 (j) contemplates that the judge, using judicial discretion, find the statement ‘was at the time of the assertion so far contrary’ to the declarant’s penal interest ‘that a reasonable man in the declarant’s position would not have made the statement unless he or she believed it to be true.’ In addition, if the declarant is not present at trial it must appear a diligent effort was made to locate the declarant and that he is unavailable. Originally in order for such evidence to be admissible it had to be shown the declarant was dead. Now in those jurisdictions recognizing the rule it is generally sufficient to show the declarant is unavailable. 5 Wigmore on Evidence § 1476, p. 350 (Chadbourn rev. 1974).” The necessity to determine the unavailability of the declarant in a criminal proceeding is required, however, not because of the provisions of K.S.A. 60-460 (j), but rather because “[u]nder both the federal and state constitutions a defendant charged with a crime is entitled to be confronted with the witnesses against him—that is, to meet them face to face.” State v. Terry, 202 Kan. 599, Syl. ¶ 1, 451 P.2d 211 (1969). See also State v. Kirk, 211 Kan. 165, 505 P.2d 619 (1973); State v. Washington, 206 Kan. 336, 479 P.2d 833 (1971). This constitutional requirement of confrontation is not necessary in civil actions, nor is it required under the provisions of K.S.A. 60-460 (j). See State v. Myers, 229 Kan. 168, 171-172, 625 P.2d 1111 (1981). The trial court did not explicitly find prior to the admission of Brenner’s testimony “that the character of the declaration was of such nature a reasonable man would not make it unless he believed it to be true.” Thompson v. Norman, 198 Kan. at 443. Nevertheless, the court read K.S.A. 60-460 (j) into the record at the time the objection was raised and inherent in its ruling was the finding required by Thompson v. Norman. Therefore, we believe the trial court correctly received the testimony of Brenner as an exception to the hearsay rule under K.S.A. 60-460 (j). The statements made by the Carpenters were clearly against their pecuniary, penal and social interests. Plaintiff also argues the trial court erred in allowing double hearsay, i.e., that Carpenter said Ernie Rice said “We have got to kill that damn Upshaw off.” The record reveals, however, that this testimony was only introduced to show that the statement was made to Brenner by Carpenter prior to the issuance of the policies, thus proving that the Carpenters were at least considering the possibility of killing Upshaw at that early date. The statement was not introduced or received for the purpose of proving the truth of what Ernie Rice purportedly said. Under such circumstances, the court did not err in receiving this evidence. As stated in Malone v. New York Life Ins. Co., 148 Kan. 555, 558-559, 83 P.2d 639 (1938): “It has been said that the theory of the rule against hearsay is that when the utterance is offered as truth of the fact asserted, the credit of the assertor becomes the basis of inference and therefore can be received only when the assertor is on the stand and subject to cross-examination, but that if the utterance if offered, not as an assertion to evidence the matter asserted, but without reference to its truth, the rule does not apply.” Plaintiff finally contends the trial court erred in failing to grant her motion for summary judgment. In her motion the plaintiff relied upon “the discovery record and the uncontroverted statement of facts, and the memorandum of law, filed in support of the motion for summary judgment filed by plaintiff” in Leah Chute, next friend, mother, natural guardian and conservator of Tawnya R. Upshaw, Toni R. Upshaw and Troy W. Upshaw, minors v. Old American Insurance Company, case No. 122,560 in the District Court of Shawnee County, Kansas. The court overruled the motion for summary judgment finding that there were genuine issues of material facts remaining to be tried. Supreme Court Rule No. 141, 225 Kan. lxviii, requires that motions for summary judgment shall contain, among other things, separately numbered paragraphs of uncontroverted contentions of fact relied upon by the movant. The record before us does not contain the uncontroverted statement of facts filed by plaintiff in case No. 122,560 and we, therefore, do not know the nature of the record before the district court at the time plaintiff’s motion was overruled. The burden is upon the appellant to designate a record sufficient to present her points to this court, and to establish the claimed error. Farmers Ins. Exchange v. Schropp, 222 Kan. 612, 625-626, 567 P.2d 1359 (1977). In the absence of an adequate record, the claimed error need not be considered by this court. Lewis v. Lewis, 4 Kan. App. 2d 165, 168, 603 P.2d 650 (1979). Affirmed.	[ -112, 108, -12, -84, 9, -30, 58, 48, 83, -48, 103, 83, -17, -25, 21, 107, -47, 13, 69, 97, -109, -77, 31, -119, -14, -77, -15, -59, -78, 75, -12, -34, 76, 112, 10, -43, -126, -118, -123, 16, -114, 12, -87, -23, -103, 66, 48, -5, 116, 7, 117, -98, -37, 56, 26, -29, 12, 44, 123, -83, -46, -79, -126, 7, 127, 23, -95, 4, -98, 9, 90, 22, -104, 49, 0, -24, 114, -90, 66, 116, 69, -101, -124, 102, 103, 33, 17, -17, 56, -102, 47, 86, -97, -89, -70, 120, 27, 8, -74, -97, 124, 52, -121, -8, -18, 20, 28, 108, -127, -53, -46, -111, -55, 112, 28, 39, -17, 20, 34, 97, -117, 98, 93, 71, 113, -101, -114, -70 ]
Swinehart, J.: This is an appeal by the respondent, City of Stockton, from a judgment of the district court of Rooks County granting the habeas corpus motion of petitioner, James L. Prockish. On December 23, 1980, petitioner was arrested for speeding, disorderly conduct, and driving while intoxicated, by Officer Rod Moyer. Moyer was alone at the time of the arrest. Officer Bob Weltmer was present at the courthouse when the sobriety and blood alcohol tests were given to Prockish. Before the trial on the DWI charge started, petitioner’s attorney was informed by the city prosecutor that Moyer, the arresting officer, would not be testifying. Moyer had not been ordered to be there nor had he been subpoenaed. The trial began, and the first witness for the City was Officer Weltmer. At the end of Weltmer’s testimony, petitioner’s attorney again inquired as to whether Moyer would appear in court. Again, the city prosecutor stated that Moyer was not going to be present. Thereupon, petitioner’s attorney moved the court for an order acquitting petitioner and dismissing the case due to lack of confrontation by an essential witness in violation of the Constitution. The motion was denied and the City was allowed to proceed with its case. The City called two other witnesses and then called Officer Moyer. Apparently the chief of police had personally summoned Moyer to the court. Moyer testified and was cross-examined. The City then rested its case. Prockish was found guilty by the court of driving while intoxicated, fined $150, given a 90-day restricted driver’s license, and sentenced to a weekend in the county jail. The jail time was suspended. Subsequent to the trial, petitioner’s attorney made an oral motion to the municipal court to set aside the judgment. This motion was denied. Prockish then brought this habeas corpus action in district court. The district court ruled in favor of Prockish and held that a municipal police judge is required to dismiss misdemeanor criminal charges against a defendant immediately upon being advised that the sole arresting officer would not be testifying at the trial. Respondent City of Stockton contends that the district court incorrectly stated the law as it exists in Kansas. Respondent maintains that the municipal court did not err in refusing to dismiss the case against Prockish after the City had presented its first witness, even though the arresting officer was supposedly not going to testify. Respondent contends the city prosecutor was of the opinion that the City could prove its case without the testimony of the arresting officer. It was after the court’s denial of petitioner’s motion to dismiss when the city prosecutor realized that Moyer’s testimony would be necessary. Moyer eventually testified and was cross-examined. Respondent contends that Prockish cannot claim that his right to confront witnesses against him has been violated since Moyer eventually testified. We concur; “[t]he right of confrontation is a trial right consisting essentially of the right of cross-examination of adverse witnesses and of having them appear and be judged upon their demeanor . . . .” State v. Greer, 202 Kan. 212, 214, 447 P.2d 837 (1968). The real issue in this case is whether the trial court is required to dismiss the case against Prockish at the moment it is established that an apparently indispensable witness is not going to testify. K.S.A. 22-3419 is the relevant statute. It states in part: “(1) The court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more crimes charged in the complaint, indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such crime or crimes. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without having reserved the right.” A motion for judgment of acquittal is not proper until the close of the prosecution’s evidence unless the basic facts of the case lead to the conclusion that the prosecution must fail regardless of the evidence to be introduced. State v. Whorton, 225 Kan. 251, 589 P.2d 610 (1979). The general rule regarding whether a court should grant a motion for acquittal was initially stated in State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973): “A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” Syl. ¶ 3 Under the facts of this case, we find that the district court erred in granting the habeas corpus based upon the failure of the municipal court to sustain a motion for acquittal prior to the conclusion of the City’s case. The municipal court did not abuse its discretion by denying petitioner’s motion and allowing the City to proceed with its case. Reversed.	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Spencer, J.: Plaintiffs have appealed from an order dismissing their action wherein they sought by mandamus to compel the defendant-board to re-establish the true course of a county road, alleged to have been originally opened to run along the north-south center line (quarter section line) of the south half of the south half of Section 1, Township 3, Range 22, Doniphan County. Plaintiffs own the land situated immediately west of the road in question, and defendants-Manville own that situated immediately east of the road. All agree the road has existed since as early as 1905 and that it is a “county road,” maintained as such by Doniphan County as a part of its county road system. Because this action was dismissed, the trial court did not make findings with respect to the true course of the road. However, evidence adduced at trial, which consisted in part of engineers’ surveys made in 1939, 1961, and 1971, provided a strong indication that the center line of the road initially followed the quarter section line. The evidence also indicated that since 1974, the Manvilles have been involved in a continual process of moving the road to the west off of their land onto that of plaintiffs. A survey of the road conducted in May of 1976 reflected a drastic narrowing of the road, as well as the east-west shift of the road from the Manville property. The evidence also indicated that in May of 1977, defendants-Manville placed four posts on the quarter section line commencing at the northwest corner of their property and extending to the east-west line between the Moskau and Gronniger properties. Although plaintiffs have repeatedly requested the defendant-board to take action to cause the road to be returned to its original course, the board has refused to take any action with regard to this matter. Relevant portions of the order of the trial court are: “The court finds that defendants Manville motion to dismiss as to all counts should be sustained. “The court is of the opinion that the provisions of KSA 68-108 specifically ‘the County Commissioners shall constitute a board of review’ refers to the County Commissioners being a board of review rather than language requiring them to do some specific act. “The duty of the Board of Commissioners under KSA 68-108 is not such as would impose on them a duty which is clearly set forth and accordingly the plaintiffs are not entitled to an Order of Mandamus against said Board of Commissioners. “Plaintiffs petition against the Board of County Commissioners of Doniphan County, Kansas, should be dismissed with costs to the plaintiffs.” K.S.A. 68-108 provides: “When the place of beginning or true course of any road shall be uncertain by reason of the removal of any monument or marked tree by which the road was originally designated, or from any other cause, the county commissioners shall constitute a board of review, or the county commissioners may appoint three disinterested householders of the county as a board of review, and the commissioners or such other review board may re-view, re-mark and straighten said road, if they deem it necessary; and after establishing the place of beginning or true course of the road, the board of commissioners shall notify the county surveyor, who shall view and re-survey the same, and shall have the same correctly marked, as in the case of a new road, and shall make a correct return of said survey and a plat of said road . . . .” As provided by K.S.A. 60-801, “[mjandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” See Stephens v. Van Arsdale, 227 Kan. 676, 682, 608 P.2d 972 (1980); Adams v. Marshall, 212 Kan. 595, 603, 512 P.2d 365 (1973); Mobil Oil Corporation v. McHenry, 200 Kan. 211, Syl. ¶ 14, 436 P.2d 982 (1968). “While mandamus will not ordinarily lie at the instance of a private citizen to compel the performance of a public duty, where the private citizen shows an injury or interest specific and peculiar to himself and not one that he shares with the community in general, the remedy of mandamus and the other extraordinary remedies are available.” Stephens v. Van Arsdale, 227 Kan. 676, Syl. ¶ 2. Inasmuch as defendants-Manville are not alleged to have occupied a public office or trust, we concur in the dismissal of the action with respect to those defendants. However, we are of the opinion that the provisions of K.S.A. 68-108 impose a duty on the board of county commissioners to act whenever it is shown that the true course of any road within its jurisdiction is uncertain for any cause. We believe the provisions of 68-108, when considered in their entirety and with other provisions relating to roads and bridges, mandate that when such a showing has been made, the county commissioners shall constitute either themselves or three disinterested householders of the county as a board of review to consider the matter as presented, and take such corrective action through the office of the county surveyor as is found to be necessary. Clearly, if it is determined in this case that the true course of the road in question was along the quarter section line, the defendant-board has no right to maintain that road in another location and is required by 68-108 to take corrective action. Any interpretation of the statute which would permit the defendant-board to completely ignore the variance of the road from its true course and the resulting injury to the plaintiffs would deprive that statute of any logical meaning. K.S.A. 19-212 provides that the board of county commissioners of each county shall have the power “[t]o lay out, alter or discontinue any road running through one or more townships in such county, and also to perform such other duties respecting roads as may be provided by law.” Emphasis added. K.S.A. 68-115 makes it the duty of each and every county engineer (agent of the board of county commissioners) to open or cause to be opened all state and county roads which have been laid out or established through any part of the county, to keep the same in repair, and to remove or cause to be removed all obstacles that may be found therein. See National Sign Co. v. Douglas County Comm’rs, 126 Kan. 81, 266 Pac. 927 (1928). We hold it to be the duty of the board of county commissioners of each county to maintain its county roads only along the true course of any such road, as originally laid out or subsequently officially altered, and, when necessary, to cause the county surveyor to take such corrective action as may be necessary to maintain the true course of the road, keep the same in repair, and remove or cause to be removed all obstacles that may be found therein. To this end, mandamus is proper. Judgment of dismissal as against defendants-Manville is affirmed. Judgment of dismissal as against defendant-Board of County Commissioners of Doniphan County is vacated, and this cause is remanded for further proceedings consistent with this opinion.	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Miller, J.: This is an action by the plaintiff, as an insured, to recover for a theft loss under a homeowner’s policy issued by the defendant. The premises insured were located at 7423 Tanglewood Court, Wichita, Kansas, owned by the plaintiff, and in which his widowed mother and his son resided. Plaintiff resided in apartment 828 located at 505 North Rock Road, in Wichita. On September 17, 1977, during the policy period, plaintiff’s apartment was burglarized while he was out for breakfast, and a television set, turntable and stereo equipment of a value of $977.85 was stolen. Plaintiff’s claim for recovery under the policy was denied by defendant on the grounds that plaintiff’s apartment was not a “temporary residence” and that coverage for the theft was excluded under the policy. The trial court granted summary judgment in favor of plaintiff and defendant has appealed. At the outset, defendant contends the case was not ripe for summary judgment for the reason that a material question of fact was presented as to whether plaintiff was temporarily residing in the apartment. Both plaintiff and defendant filed cross-motions for summary judgment and filed statements of uncontroverted facts in support of their motions. A review of the record shows that there was no genuine dispute of the essential material facts and that the matter was ripe for summary judgment. Farmers Ins. Co. v. Schiller, 226 Kan. 155, Syl. ¶ 1, 597 P.2d 238 (1979). The policy in question is a standard homeowner’s policy which provides coverage on unscheduled personal property in the amount of $18,000. Under the heading of Description of Property and Interests Covered, it provides: “Coverage C — Unscheduled Personal Property. This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling and owned or used by the Insured while on the described premises. . . . This coverage also includes unscheduled personal property while elsewhere than on the described premises, anywhere in the world.” The exclusion relied on by the defendant in denying coverage is as follows: “C. Theft exclusions applicable to property away from the described premises: “This policy does not apply to loss away from the described premises of: “(1) property at any location owned, rented or occupied by an insured, except while an insured is temporarily residing thereat. . . .” The record shows that plaintiff owned the house at 7423 Tanglewood Court. His son, who was attending Kansas University, lived there when he was not in school, as did plaintiff’s widowed mother, who lived there rent free. Plaintiff, who was divorced and single, desired a place with some privacy where he could entertain social friends. He therefore rented the apartment in January or February of 1975 on a year’s lease, which he had renewed each year. Plaintiff testified that he is self-employed in the oil and gas production business, and that he maintained a bedroom and an office at the Tanglewood address. He listed the Tanglewood address on his passport, income tax returns, voter registration, a number of charge accounts, and in the Wichita Country Club directory. All of his permanent records are kept there. In his deposition, however, plaintiff admitted that in 1975, 1976, 1977 and 1978, he had never stayed overnight at the Tanglewood address except when both his mother and his son were away from Wichita. According to plaintiff, he had stayed at his apartment at least 48 weeks out of the year. During these years, he also listed his residence in the telephone directory at the Rock Road address. The only person listed in the telephone directory as a resident at the Tanglewood address was his mother. Plaintiff further testified that he considered the Tanglewood residence as his permanent residence, but that he had no intention of returning to live there as long as his mother continued to reside there. The controlling issue then is whether plaintiff was “temporarily residing” at his Rock Road apartment within the meaning of that term as used in the policy. Plaintiff’s position is that whether a residence is temporary is a matter of intent, that the facts support his intent to maintain the Tanglewood residence as his permanent residence and the apartment as his temporary residence, and that under the plain meaning of the policy the theft was covered. Defendant contends that, as used in the policy, the term “temporarily residing” does not include another residence maintained by plaintiff over a protracted period of time as his principal and full-time residence. Neither party contends that the language of the exclusion is ambiguous. Similar terms have been held to be clear and unambiguous. Bryan v. Granite State Ins. Co., 185 So. 2d 310 (La. App. 1966); Heuer v. N.J. Manufacturers Ins. Co., 127 N.J. Super. 80, 316 A.2d 74 (1974). The words are to be construed then, according to their “natural and ordinary meaning.” Kansas Farm Bureau Ins. Co. v. Cool, 205 Kan. 567, 471 P.2d 352 (1970). The word temporary has been defined as meaning the opposite of permanent. Neither term is an absolute, however. Each is relative to the other. McManus v. Home Ins. Co., 201 Wis. 164, 229 N.W. 537 (1930). It thus becomes an exercise in semantics to argue that a residence has to be temporary if it is not permanent. The term has a more comprehensive meaning. Webster’s New Collegiate Dictionary (1977 ed.) defines temporary as “during a limited time,” and as “lasting for a limited time.” Black’s Law Dictionary 1634 (4th ed. rev. 1968) defines the word as “[t]hat which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration,” and defines the word “temporarily” as “not of long duration.” “Permanent” is also defined in Webster’s New World Dictionary (Second College Edition, 1970) as “lasting a relatively long time.” In McManus v. Home Ins. Co., 201 Wis. 164, the court, in ruling on whether insured property was “temporarily off the premises,” stated: “The word ‘temporary’ has no fixed meaning in the sense that it designates any fixed period of time. It is a word used in contradistinction to ‘permanent.’ In many connections whether an absence is temporary or permanent depends upon whether there is an intention to return, or in case of property there is an intention on the part of the owner that it shall be returned to the place from which it was taken. While this is not always controlling, as the word ‘temporary’ may he used under circumstances excluding protracted periods of time, it is of potent significance here.” p. 167. (Emphasis added.) Considerable reliance has been placed on Littell v. Millemon, 154 Kan. 670, 121 P.2d 233 (1942), an election contest case. The rules for determining residence for voting purposes are conceptually different from property insurance cases. They are governed by constitutional requirements (Art. 5, § 3, Kansas Constitution), K.S.A. 77-201 (23), and various election statutes, and not by contract. A person may maintain a “permanent residence” for voting purposes indefinitely at someone else’s home, such as his parent’s home (Campbell v. Ramsey, 150 Kan. 368, 92 P.2d 819 [1939]), without residing there or keeping property there, a concept that is entirely foreign to the concept of a homeowner’s policy, which is designed to afford liability and property insurance coverage to a described premises and its contents. Several courts have had occasion to rule on similar terminology. These cases, while helpful, are not dispositive here. In Heuer v. N.J. Manufacturers Ins. Co., 127 N.J. Super. 80, the theft was from a cottage used as a summer home which the insured occasionally occupied on winter weekends. During a three-weeks’ absence, his fishing equipment was stolen, and he sought recovery under a homeowner’s policy. The court held that the insured was not “residing” in the premises at the time of the theft and denied recovery. In Bryan v. Granite State Ins. Co., 185 So. 2d 310, the insured owned a home in Lacombe, Louisiana, but maintained his office in New Orleans. In addition, he maintained an apartment in New Orleans which he used to maintain contact with his friends and in which he and his wife occasionally stayed overnight. A theft occurred from the apartment at a time when the insured was living at home in Lacombe and the apartment was vacant. The court denied recovery under a homeowner’s policy for the reason that the insured was not residing therein at the time of the theft. In Sanders v. Insurance Co., 20 N.C. App. 691, 202 S.E.2d 477 (1974), the insured maintained a home in Winston-Salem where his family lived. He went to work for the Pennsylvania Ballet Company and rented a room in Philadelphia where he lived during the ballet season. While on a five-day trip to Pittsburgh in connection with his work, some property was stolen from his apartment in Philadelphia. The court granted recovery under a homeowner’s policy holding that he was temporarily residing in the apartment at the time of the theft. A similar result was reached in Chalmers v. Oregon Auto Ins. Co., 262 Or. 504, 500 P.2d 258 (1972), where the insured was living temporarily at a house which he was building in Odessa. His family lived at their home in Klamath Falls, on which he carried a homeowner’s policy. During a short visit home to pick up his unemployment check and to shop for groceries, a theft occurred at the Odessa house. The court held that the Odessa house was “in actual use” as plaintiff’s temporary residence at the time of the theft and allowed recovery. The question of whether the residence was temporary or not was never in issue in any of these cases, since the residences were clearly seasonal or used occasionally for a short-term, definitive period of time. The issue was whether the insured was residing in the premises or actually using it as his residence at the time of the theft. None of them involved a theft from the insured’s primary residence. In construing the policy in the instant case, the court must consider the instrument as a whole and endeavor to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter, and the purpose to be accomplished (Bramlett v. State Farm Mutual Ins. Co., 205 Kan. 128, 468 P.2d 157 [1970]), and the term “temporarily residing” is to be interpreted in the context in which it was used in the policy. Teter v. Corley, 2 Kan. App. 2d 540, 584 P.2d 651 (1978). We think the plain and ordinary meaning of the term as used in the policy for theft coverage has reference to a place of abode away from the insured premises used by the insured occasionally or seasonally on a limited short-term basis. It does not include another residence maintained by an insured as his principal place of residence on a full-time basis over a protracted and indefinite period of time. The facts here establish that at the time of the theft, plaintiff had resided at his apartment more than two and one-half years, that he slept in the Tanglewood Court residence not more than four weeks of each year, and then only on occasions when neither his son nor his mother were there. As far as the record before us shows, he continued to live in the apartment in 1978 with the expressed intention of not returning to live at his Tanglewood home as long as his mother continued to reside there, a situation that could conceivably continue to exist for a considerable time to come. Under these circumstances, he was not temporarily residing in the apartment within the meaning of the policy at the time of the theft. In view of our conclusion here, it is unnecessary to discuss the other issues raised on appeal. Reversed.	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Holmes, J.: This appeal involves a determination of whether monies due an independent contractor for construction services constitute earnings within the meaning of K.S.A. 1980 Supp. 60-2310(a)(1) and are thus partially exempt from garnishment. Jesse Coward obtained a judgment against appellant, Paul LeRoy Smith, in the amount of $12,500.00. Smith is in the roofing and general contracting business and contracted with Hardee’s Family Restaurant to reroof two of its buildings. Appellee, Jesse Coward, issued a garnishment to Hardee’s and it filed an answer revealing that Hardee’s was indebted to Smith in the amount of $9,140.00. The trial court held that money due under a contract with an independent contractor is not earnings under the statute. We agree. The learned trial court filed a comprehensive memorandum decision as follows: “MEMORANDUM DECISION “The above entitled matter comes on for decision upon the motion of the defendant for an order directing the Clerk of the District Court to pay out money. The hearing, wherein evidence was introduced, was held by this Court on August 21, 1980, at which time the matter was taken under advisement pending written briefs. “The Court has considered all of the evidence and the pleadings in the file and makes the following decision. “FINDINGS OF FACT “1. The defendant/judgment debtor (hereinafter defendant) is in the roofing and general contracting business. Defendant’s Reply and Answer para. 1. “2. The $9140.00 owed to the defendant by the garnishee Hardee’s Family Restaurant is for the reroofing of two buildings. Answer of Garnishee dated July 2, 1980. “3. The reroofing was performed in approximately two weeks with labor performed by six or seven other persons employed by the defendant and the defendant himself. Testimony of Paul LeRoy Smith. “CONCLUSIONS OF LAW “1. This case is a matter of first impression. The issue is whether money owed to an independent contractor is earnings within the meaning of K.S.A. [1979 Supp.] 60-2310(a)(1) and thus partially exempt from garnishment. “2. It is necessary to set forth the relevant provisions of the Kansas Statute on wage garnishments: “K.S.A. 1979 Supp. 60-2310(a)(1): ‘Earnings’ means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise; (2) ‘Disposable earnings’ means that part of the earnings of any individual remaining after the deduction from such earnings of any amounts required by law to be withheld; “60-2311 [1979 Supp.]. Discharge of employee due to wage garnishment prohibited. No employer may discharge any employee by reason of the fact that the employee’s earnings have been subjected to wage garnishment. “3. ‘The fundamental rule of statutory construction, to which all other rules are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes.’ Johnson v. McArthur, 226 Kan. 128, 135, 596 P.2d 148 (1979). “4. The defendant was not to be paid by week, month or any other set period. He was to be paid upon the satisfactory completion of the work under the contract. The examples of wages, salary, commission and even bonus all connote a regular pay period. K.S.A. 1979 Supp. 60-2310(a)(1). In computing the amount of the exemption, the statute refers to ‘workweek, or multiple thereof’. K.S.A. 1979 Supp. 60-2310(b). Reference to a ‘pay period’ is also made in K.S.A. 1979 Supp. 60-717(c) which sets forth applicable garnishment procedures. “5. The defendant, however, may be within the ‘or otherwise’ language of K.S.A. 1979 Supp. 60-2310(a)(1). This possibility arises under Harpster v. Reynolds, 215 Kan. 327, 524 P.2d 212 (1974). There the judgment debtor was a truck driver working for the garnishee truck company. The debtor was paid for mileage driven less expenses advanced by the garnishee. The debtor was not paid by week, month or any regular pay period. Instead, his compensation was computed upon completion of each trip. The court found this irregular payment to be a ‘complicating factor’ but it did not deprive the debtor of protection under the garnishment laws. Harpster, supra, at page 332. Thus there is no requirement that the debtor be paid for a regular pay period in order to be covered by K.S.A. 1979 Supp. 60-2310. “6. The question then becomes whether the legislature intended to bring independent contractors under the wing of K.S.A. [1979 Supp.] 60-2310. This is important because ‘[t]he general rule is that exemption laws are to be liberally construed in favor of those intended to be benefited and favorable to the objects and purposes of the enactment . . . .” Miller v. Keeling, 185 Kan. 623, 627, 347 P.2d 424 (1959). “7. In Miller, supra, the court was faced with a constitutional challenge to the provision which precluded use of the garnishment procedure if a creditor had assigned a claim to a collection agency. The court, at page 628, set forth the purpose of the wage exemption statute as follows: ‘[I]t has been said that the purpose of such exemption is to protect a class of persons who are largely dependent on their wages for support, as well as their families and dependents who look to them for a living . . . .’ “8. It must be recognized that Miller was construing the statute prior to 1970 when a major revision replaced the narrower exemption category of salary with earnings. L. 1970 Ch. 238 § 1. The 1970 amendments brought Kansas law into compliance with Title III of the Federal Consumer Credit Protection Act, 15 U.S.C.A. § 1671 et seq. This is clear from a comparison of the language in the applicable sections. See also Bennett 1970 Kansas Legislature in Review, 39 J.K.B.A. 107, 178 (1970). “9. Relevant principles for analyzing legislative intent were set forth in Brown v. Keill, 224 Kan. 195, [200,] 580 P.2d 867 (1978): ‘In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested. [Cite omitted.] In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia.’ Due to the absence of legislative history surrounding the adoption of K.S.A. 60-2310 and 60-2311, an analysis of congressional intent relative to the enactment of the Consumer Credit Protection Act and a review of that Act and the Kansas statute as a whole will be helpful. “10. In 15 U.S.C.A. § 1671 Congress sets forth its findings which show that it was concerned that unrestricted garnishment of compensation encouraged ‘predatory extensions of credit’ and resulted in the loss of employment. 15 U.S.C.A. § 1671(a)(1), (2). The chief concern was the prevention of personal bankruptcies. Kokoszka v. Belford, 417 U.S. 642, 650 [41 L.Ed.2d 374, 94 S.Ct. 2431] (1974). Thus the restrictions on garnishment were seen as a means to ‘relieve countless honest debtors driven by economic desperation from plunging into bankruptcy in order to preserve their employment and insure a continued means of support for themselves and their families.’ H.R.Rep. No. 1040, 2 U.S. Cong, and Admin. News 1962, 1979 (1968). “11. That the protection offered by Congress was primarily for the wage earner in an employer-employee relationship is seen from the expressions of congressional intent above and the statutory provisions when read in para materia. Thus earnings is compensation for personal services. 15 U.S.C.A. § 1671(a); K.S.A. [1979 Supp.] 60-2310(a)(1). Compensation to an employee is by its very nature for personal services rendered for the employer’s benefit. On the other hand an independent contractor generally employs others to perform the labor and his compensation includes more than compensation for his personal services. It includes personal services performed by the contractor’s employees, reimbursement for equipment used, and a return on capital. See Miller Co. v. Givan, [7 Utah 2d 380, 382,] 325 P.2d 908, 910 (1958). “12. Concern for the employer-employee relationship is also demonstrated by the enactment of 15 U.S.C.A. § 1674 which prohibits the discharge of an employee by an employer when the employee’s wages have been garnished once. K.S.A. 1979 Supp. 60-2311 is even more protective of the employer-employee relationship for it prevents discharge for any number of garnishments. “13. K.S.A. [1979 Supp.] 60-2310(b) and 15 U.S.C.A. § 1672(b) provide for the determination of disposable earnings computed after deduction of amounts to be withheld by law. Deductions withheld by law are social security and withholding taxes. Marshall v. Dist Ct. for Forty-First-b Jud. Dist., 444 F. Supp. 1110, 1115 (E.D. Mich. 1978). It is the employer who is required to withhold the federal tax on income (26 U.S.C.A. § 3402[a] [1979]), state tax on income (K.S.A. 79-3296[a]), and social security tax (26 U.S.C.A. § 3102[a] [1979]) not a party owing money to an independent contractor under a contract. “14. From a consideration of legislative history and a review of the applicable statute in pari materia, this Court concludes that the purpose of the wage garnishment exemption statute is to protect an employee and not an independent contractor. Thus the amount due under a contract of an independent contractor is not earnings within the meaning of K.S.A. 1979 Supp. 60-2310(a)(1) and is not exempted from garnishment. “15. The conclusion reached is supported by the few cases on point. In Gerry Elson Agency, Inc. v. Muck, 509 S.W.2d 750, 755 (Mo. App. 1974) the court found that the debtor’s relationship to the garnishee had elements of an independent contractor relationship and the debtor was not within the protection afforded by the federal Consumer Credit Protection Act. In Houston-Starr Co. v. Davenport, [227 Pa. Super. Ct. 186,] 324 A.2d 495 (1974), the issue before the jury was whether the judgment debtor was a general contractor or an employee of the garnishee working only as a construction supervisor. Under the applicable Pennsylvania statute as interpreted by the court, if the debtor was a general contractor the funds owed him were subject to garnishment. Houston-Starr Co., supra, at page 496. See also John O. Melby & Co. Bank v. Anderson, [88 Wis. 2d 252,] 276 N.W.2d 274 (1979); Brasher v. Carnation Co., 92 S.W.2d 573 (Tex. [Civ.] App. 1936). “16. This Court does not find Miller Co. v. Givan, supra, and Stranger v. Harris, [77 Colo. 340,] 236 P. 1001 (1925) persuasive. Stranger has never been cited by the Colorado courts since it was decided. Further the defendant has not shown that the money owed is for his personal services nor any other reason why he, as an independent contractor, should receive the protection of the Kansas statute. See Miller Co. v. Givan, supra. “17. The Clerk of the District Court is hereby ordered to pay the $9140.00 now being held in this matter to the plaintiff, Jesse Coward, in partial satisfaction of the judgment for $12,500.00 entered July 24, 1974. . . . IT IS SO ORDERED.” We concur with the trial court and adopt its memorandum decision as the opinion of the court. The judgment is affirmed.	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Woleslagel, J.: This case was filed after defendant landowners refused to let the plaintiff remove ballast that had been used on a railroad right-of-way. The plaintiff claimed ownership of the ballast as the final assignee of removal and entitlement rights by purchase from the railroad company. The defendants claimed ownership under the law of abandoned railroad property, as they became reversionary owners of the land upon abandonment of the right-of-way. After court trial, the trial judge decided ownership to be in the plaintiff and he granted the parties the privilege of agreeing on a proper time for the plaintiff to remove the ballast, but, should they not agree, he retained jurisdiction to himself establish removal time. Defendants appeal; we affirm. In June of 1975, the Atchison, Topeka and Santa Fe Railway Company contracted with the L. B. Foster Company of Houston, Texas, to “[r]emove tracks and structures and miscellaneous materials,” from its right-of-way between Emporia and Moline, Kansas. The contract provided that Foster was to complete removal by March 31, 1976, unless, on written application, the time was extended by Santa Fe’s engineering department. Foster made an assignment to another company and it, with Foster, in November, 1975, sold and assigned rights to the ballast to the plaintiff. Verbal time extensions were given plaintiff by the first assignee but plaintiff made no written requests for time extensions. It is not clear from the record before us just when the tracks and ties were removed so that plaintiff could effectively get to the ballast, but it was not until late summer or fall of 1977 that he first removed some of it. At that time, one of the defendants insisted he leave and he was later denied permission to enter again on the land. Plaintiff filed this suit December 30, 1977. Santa Fe filed valuations and paid ad valorem taxes on the right-of-way to January 1, 1978. On January 24, 1978, it filed a Declaration of Abandonment of the right-of-way with the Register of Deeds of Greenwood County. On these factual findings, which were not disputed, the trial judge found abandonment of the right-of-way did not take place until January 24, 1978. The appeal of the defendants states one issue: Did the plaintiff have the right to the ballast on the right-of-way or had there been an abandonment resulting in both ballast and land reverting to the defendants? The defendants claim that abandonment of the right-of-way took place when Santa Fe contracted with the Foster Company, but in no event later than March 31, 1976, the work completion date in that contract. The latter date is of some significance as it may be interpreted to be what experienced parties believed would be a reasonable time in which all property should be removed from the right-of-way. As stated in 74 C.J.S., Railroads § 117d, p. 544: “Ordinarily, tracks, railroad structures, and other railroad equipment do not become part of the realty and such items belong to, and may be removed by, the railroad company, or its assignee, on abandonment of the right of way or within a reasonable time thereafter . . . The cardinal principle to follow in determining when a railroad right-of-way is abandoned is that there must be satisfaction of what has been termed the “unitary rule.” Simply stated, both intent to abandon and action to carry out that intent must combine. In Pratt v. Griese, 196 Kan. 182, 409 P.2d 777 (1966), the rule was stated by adopting a quotation from 74 C J.S., Railroads § 117b, pp. 541-42: “Whether a right of way has been abandoned by a railroad company is largely a question of intent, and it is generally held that in order to constitute an abandonment there must be an intent to relinquish, together with external acts by which the intent is carried into effect.” American Jurisprudence treats the principle a bit differently. It states that the acts “must be of a character so decisive and conclusive as to indicate a clear intent to abandon” and that intent “may be proved by an infinite variety of acts.” 25 Am. Jur. 2d, Easements and Licenses § 103, pp. 507-08. Further, it states the intent must be “neither to use nor to retake the property” and the act must be “clear and unmistakable” and it must show a “purpose to repudiate . . . ownership.” It claims that “relinquishment of the possession” is not an abandonment as the act must indicate a lack of any interest in the property. 1 Am. Jur. 2d, Abandoned, . . . Property § 16, pp. 16-17. These principles refute defendants’ contention that abandonment of the right-of-way took place as early as March 31,1976. By putting a time extension clause in the contract with Foster, the railroad company expressed an interest in retaining at least the right of ingress and egress until such time as all property was actually removed. Until the filing of the formal declaration of abandonment, there was no “clear and unmistakable . . . act indicating a purpose to repudiate . . . ownership.” Even if the record before us showed when the tracks were removed, that would not be conclusive; many cases hold that track removal alone is not sufficient to support a finding of abandonment. See Annot., Railroad Right of Way—Abandonment, 95 A.L.R.2d 468, § 5, pp. 485-88. As stated in Pratt, 196 Kan. at 185, “mere nonuse, for a limited time,” is not proof of abandonment. In one case, nonuse for nine years was held to not support abandonment. People v. Southern Pacific Co., 172 Cal. 692, 158 Pac. 177 (1916). In that case, considerable reliance was placed on the implication of continuing interest in the property arising from the fact that the supposed abandoner kept paying taxes on the property. As noted before, Santa Fe’s actions indicated a use of the right-of-way until all materials were removed and it filed valuations and paid taxes until after plaintiff was denied entrance by the defendants. In short, there was no evidence of a specific and identifiable date of abandonment prior to the filing of the formal declaration which would require a finding contrary to that of the trial court. The trial court’s findings of fact are supported by competent, substantial evidence sufficient to support the conclusion of law. That is the limit of our inquiry. City of Council Grove v. Ossmann, 219 Kan. 120, Syl. ¶ 1, 546 P.2d 1399 (1976). Affirmed.	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Bullock, J.: Gary M. Ratley owned an oil and gas lease north of Iola, Kansas, known as the “Latta” lease. In connection with the development of this lease, Ratley employed Jerry L. Phillips, Inc., to drill and equip two new wells, to obtain “core samples” in connection with the drilling of these wells, and to “wash down” two additional wells. Regrettably, the two new wells turned out to be “dry holes” and when Phillips billed Ratley for the work, payment, like the oil, was not forthcoming. The agreement under which Phillips furnished the services and materials described was entirely oral and provided for charges to be made on a unit basis; for example, drilling was to cost $3 per foot and core samples were to be obtained at a cost of $150 each. Phillips sent Ratley periodic invoices for services and materials throughout the course of the work, none of which were paid. On September 20, 1978, Phillips and Ratley conferred and agreed that the total amount owing from Ratley to Phillips was $9,850.94. At this same conference, Phillips offered to discount this sum $2,000 if Ratley paid the balance in full during the month of October 1978. When Ratley still did not pay, Phillips filed suit for the total amount due, together with “service charges” of lVz% per month (18% per annum). Ratley answered, denying he owed the sum claimed and alleging (1) that the materials and services furnished were defective and (2) that certain implied warranties had been breached by Phillips. Following a bench trial, the trial court entered its memorandum decision (1) granting judgment to plaintiff for the principal sum of $9,850.94, (2) finding that Phillips was entitled to interest at the rate of lx/i% per month and (3) requesting counsel to submit a journal entry containing calculations reflecting the amount of interest due at that rate. Thereafter, counsel agreed on a form of journal entry whereby Phillips was granted judgment, including both principal and accrued interest (apparently at the rate of lVz% per month), in the total amount of $11,467.39. The journal entry also provided that this total judgment sum was to accrue interest at the rate of 8% per annum until paid. From this judgment Ratley has appealed, raising three principal issues for our consideration. Ratley’s first contention here is that the trial court failed to make adequate findings of fact and conclusions of law. No objection was made by Ratley to the trial court’s memorandum and journal entry of judgment prior to this appeal. As we held in Burch v. Dodge, 4 Kan. App. 2d 503, Syl. ¶ 2, 608 P.2d 1032 (1980): “A litigant must object to inadequate findings of fact and conclusions of law at the trial level so as to give the trial court an opportunity to correct them, or an appellate court may presume the trial court found all the facts necessary to support the judgment.” Furthermore, we have examined the trial court’s memorandum and journal entry in this case and believe them sufficient under the controlling statute and rule. See K.S.A. 60-252(a) and Rule No. 165 (225 Kan. lxxii). Ratley next contends that the trial court erred in not finding in his favor on claims for breach of warranty and defective materials. Although not clearly stated, this claim of error is apparently a challenge to the sufficiency of the evidence to support the following conclusion of the trial court: “I find that such goods and services were as represented, that no defective materials were furnished, that no used materials were represented to be new, that the services were performed in a good and workmanlike manner, and that there was no unnecessary delay in performing such services.” Ratley’s principal complaint with Phillips’ services concerned the inadequacy of some of the core samples obtained by Phillips from the new wells which were drilled. Core samples, according to the evidence in this record, can be useful if the well drilled ultimately develops into a producing well. If not, the record discloses, the samples are of virtually no value. Both wells drilled by Phillips resulted in dry holes. Further, Ratley’s complaints about the core samples were among those issues resolved by the agreement of the parties on September 20, 1978, when they arrived at an account stated. Although the trial court found, as a matter of law, that this agreement between Ratley and Phillips was unenforceable (inasmuch as Ratley did not actually pay in full during the month of October and obtain the offered discount), we conclude to the contrary. In Quincy Lumber Co. v. Saia, 192 Kan. 776, Syl. ¶ 1, 391 P.2d 144 (1964), our Supreme Court defined “account stated” as follows: “An account stated is an agreement between parties who have had previous transactions, determining the balance due from one party to the other, and a promise, express or implied, by the debtor to pay the balance.” Quoting from Harrison v. Henderson, 67 Kan. 202, 72 Pac. 878 (1903), the Quincy court held that: “ ‘An . . . account stated becomes a new agreement and takes the place of the obligations resting upon either party by reason of the prior account/ ” 192 Kan. at 778. When Ratley and Phillips met on September 20, 1978, and unconditionally agreed upon the sum owing from Ratley to Phillips, an account stated was created. The fact that Ratley did not avail himself of the offered discount by paying promptly — the only conditional part of the agreement — did not affect the validity of the agreement between them settling the account. Additionally, we have examined the trial record and find there substantial competent evidence supporting the trial court’s findings that the services and materials provided by Phillips were not, in fact, defective and did not, in fact, breach any implied warranties. On appeal, a trial court’s findings of fact are never disturbed if supported by substantial competent evidence. City of Council Grove v. Ossmann, 219 Kan. 120, Syl. ¶¶ 1, 2, 546 P.2d 1399 (1976). For all of these reasons, we find Ratley’s second claim of error to be without merit. Ratley finally contends that the trial court erred in imposing interest at the rate of U/2% per month upon the principal sum due to Phillips. In this contention, we concur. The only basis for the trial court’s judgment pertaining to interest is a legend appearing on the reverse side of the various invoices Phillips sent to Ratley. This legend indicated that interest at the rate of U/2% per month would be imposed unless payment was made within thirty days. At the trial, however, it was never proved, nor even alleged, that this legend was ever brought to Ratley’s attention or that he ever agreed to it. In fact, Phillips testified that Ratley had not agreed to the payment of interest as specified in the legend. Consistent with this testimony, Phillips neither posted nor billed Ratley for any interest until after Ratley failed to honor the account stated agreement of September 1978—despite the fact that billings were sent monthly commencing in June of that year. Notwithstanding these uncontroverted facts in the record, the trial court concluded as a matter of law that the legend alone created an “implied agreement,” citing Henrickson v. Drotts, 219 Kan. 435, 548 P.2d 465 (1976). In our view, Henrickson does not compel the result reached by the trial court. In Henrickson, our Supreme Court was presented with a consumer transaction under the Uniform Consumer Credit Code, which relates, inter alia, to purchases “primarily for a personal, family, household, or agricultural purpose.” K.S.A. 1980 Supp. 16a-1-301(11)(a)(iii). The Uniform Consumer Credit Code is a comprehensive act requiring sellers to give consumers several conspicuous disclosures pertaining to finance charges in advance of the imposition of those charges. With this statutory scheme in mind, the court in Henrickson remanded that action for trial to determine whether, after the required disclosures had been made, the consumer had agreed, by acquiescence or course of dealings, to the payment of the finance charges imposed by the seller. Unlike the transactions at issue in Henrickson, the transactions at issue here do not relate to the subject matters covered by the UCCC (K.S.A. 1980 Supp. 16a-1-301[11][a][iii]), and no written agreement signed by the parties subjecting them to that act (K.S.A. 16a-1-109) appears in the record before us. Predictably, therefore, the conspicuous disclosures pertaining to finance charges, required by the UCCC, were not given by Phillips to Ratley. The rule stated in Henrickson is that knowledge of the seller’s payment terms (arising perhaps from UCCC disclosures), coupled with acquiescence by the buyer can constitute an agreement to pay the charges imposed. In the case before us, however, there is no evidence that Ratley was ever made aware of Phillips’ proposed “service charges” or that he ever acquiesced in or agreed to pay them. Thus, Henrickson is clearly distinguishable from the case considered today. Although in a proper case, as Henrickson held, an agreement to pay interest can be implied from (1) a seller’s notice to a buyer that interest will be charged on an unpaid account and (2) the buyer’s acquiescence therein (through payment, a course of dealings or otherwise), we conclude that in the absence of proof of either knowledge by the buyer of the seller’s interest terms or of acquiescence therein on the part of the buyer, no obligation arises to pay interest in accordance with the seller’s terms. Compare Johnson Tire Service, Inc. v. Thorn, Inc., 613 P.2d 521 (Utah 1980) (where interest was allowed based upon the buyer’s knowledge of the seller’s payment terms coupled with a course of conduct indicating acquiescence) with Teledyne Movible Offshore, Inc. v. C & K Offshore Company, 376 So. 2d 357 (La. App. 1979) (where interest at the rate stated in seller’s invoice was not allowed where no acquiescence or course of dealings was established). In the absence of an agreement pertaining to interest, sellers furnishing goods and services on open account are entitled to interest as a matter of statute, from “the day of liquidating the account and ascertaining the balance.” K.S.A. 1980 Supp. 16-201. The date upon which interest accrues (the statutory “day of liquidating”) has been held to be the date on which the account can be definitely ascertained by mathematical computation. First National Bank v. Bankers Dispatch Corporation, 221 Kan. 528, Syl. ¶ 5, 562 P.2d 32 (1977). Applying this test to the facts before us, we conclude that the date upon which interest commenced to accrue was the date the parties reached their account stated, September 20, 1978. Further, we conclude that any interest arguably owing prior to that date was encompassed within the issues resolved by the parties in arriving at the account stated. Accordingly, we hold that the judgment of the trial court should be modified by allowing Phillips interest from September 20, 1978, on the principal sum due at the rate of 6% per annum (the rate then allowed by K.S.A. 16-201) until August 17, 1979, the date of judgment. Pursuant to K.S.A. 1980 Supp. 16-204(b), the combined principal and interest owing on the date of judgment accrues interest thereafter at the rate of 8% per annum through June 30, 1980, and at the rate of 12% simple interest per annum thereafter until paid. The portion of the trial court’s judgment herein pertaining to interest is reversed and this cause is remanded for the entry of judgment in accordance with this portion. In all other respects, the judgment of the trial court is affirmed. Affirmed in part and reversed in part and remanded.	[ 80, 104, 113, -3, -104, 96, 58, 19, 89, 105, 116, 87, -83, -49, 0, 121, -61, 57, 116, 104, 38, -77, 7, 114, -58, -77, -15, -55, -71, 95, -28, -44, 76, 48, -62, -107, -62, -126, -27, 88, 14, 4, -103, 101, -37, 0, 48, 105, 20, 75, 49, -124, 115, 40, 28, 107, 76, 46, -17, 47, -47, -32, -85, -107, 127, 84, -128, 5, -104, 79, -40, 30, -112, -68, 8, -88, 122, -90, 70, 101, 41, -67, -116, 34, 102, 33, 53, 45, -22, 60, 54, -34, 13, -90, -47, 88, 115, 79, -66, 29, 116, 20, 69, -2, -12, 5, 27, -20, 23, -54, -42, -95, 15, -28, -106, 11, -17, -125, 52, 85, -51, -94, 92, 71, 120, 23, 15, -111 ]
Brummett, J.: Involved in this appeal is the question of custody of minor children of divorced parents. There is no substantial controversy with regard to the facts. Appellant and appellee were divorced on November 14, 1979. Under a written stipulation, custody of the minor children was awarded to appellant. Certain visitation rights were granted to appellee. The agreement was approved and adopted by the district court. On March 15, 1980, appellant remarried and thereafter moved to Florida, without securing a court order. Shortly thereafter, appellee was notified of the change of appellant’s address. Ap pellee filed a motion for change of custody, alleging appellant was in contempt of court inasmuch as she removed the minor children from the jurisdiction of the court without securing a court order, and appellee was thereby prevented from exercising visitation rights. Appellee further alleged appellant’s present husband had three children in his custody. On July 8, 1980, the district court issued its order changing custody from the appellant to the appellee. The only reason set out by the court in its order for the change of custody was “[t]hat there has been a substantial change in the conditions and circumstances and that it would be in the best interest of the children to change the care, custody and control from the plaintiff to the defendant.” The court made no findings as to what constituted change of circumstances. However, the record is replete with the court’s comments about church attendance by the minors, such as: "[T]he Court feels like it’s better for the children that we would have a change of custody based upon the fact that they are not — they have always been raised in the church. They went to the church. Been down there now since March, April, May, June, and they just hadn’t got time to get into the church . . . .” “I’ll tell you, I want them both to be in church, the children and the man.” “ . . . I think that they should be in church.” “All I’m saying is they will be — go to church. I’d like to have them go to church or Sunday school when they’re — when they haven’t at their mother’s . . . .” Although church attendance was not specified in the court order changing custody, it was an integral part of the decision. Appellant bases her grounds for appeal upon four alleged trial errors: (1) Defendant failed to meet the burden of proving a change in custody was warranted in the best interests of the minor children; (2) there was no evidence of any substantial change in circumstances to justify the change of custody; (3) the court abused its discretion in changing custody of the minor children; and (4) the court considered the question of religion and church attendance in determining custody of the minor children; that such consideration is in violation of religious freedom and guarantees under the State and Federal Constitutions, and is not a relevant reason to modify custody in Kansas. The four grounds as offered overlap. Reduced to simplest terms, they assert insufficient evidence to justify a finding of changed circumstances, and that the trial court erroneously al lowed the matter of religion to be an integral part of its decision to change custody. The trial judge found only that there had been a substantial change in the conditions and circumstances, without specific findings as to the nature of those changes. Although the record reveals there must necessarily have been a change of circumstances occasioned by plaintiff’s remarriage and her move to Florida, there is no indication that the trial judge considered anything beyond the matter of religious training for the children. Removal of children from the state was considered in Carney v. Carney, 1 Kan. App. 2d 544, 544-45, 571 P.2d 56, rev. denied 222 Kan. 749 (1977), wherein it was stated: “The same considerations which determine the custody of children are applied to the question of removal of children from the state. Of primary concern are the best interests and welfare of the children; all other issues are subordinate. (Parish v. Parish, 220 Kan. 131, 551 P.2d 792; Schreiner v. Schreiner, 217 Kan. 337, 342-343, 537 P.2d 165; Lewis v. Lewis, 217 Kan. 366, 369, 537 P.2d 204.)” Religion and church attendance, although factors to be considered, are not alone sufficient to determine the best interests of minor children. In Jackson v. Jackson, 181 Kan. 1, 309 P.2d 705 (1957), it was stated: “[T]he question of religion cannot be regarded by the court in determining the care, custody and control of minor children. The courts have no authority over that part of a child’s training which consists in religious discipline, and in a dispute relating to custody, religious views afford no ground for depriving a parent of custody who is otherwise qualified.” Syl. ¶ 5. “Religious freedom, as guaranteed by our Constitution, should be faithfully upheld, and religious teachings to the children by a parent or parents, regardless of how obnoxious the same might be to the Court, the other parent or the general public should not and must not be considered as basis of making child custody orders.” Syl. ¶ 6. See also Beebe v. Chavez, 226 Kan. 591, 602 P.2d 1279 (1979). In this case the court appears to have substantially based its custody determination on church attendance. After hearing four out of six witnesses testify as to church attendance (among other things), the court stated: “Hit’s better for the children that we would have a change of custody based upon the fact that they are not — they have always been raised in the church.” We note the trial court viewed its role as being limited to whether sufficient change of circumstances existed to warrant change of custody. Custody of the children was awarded to appellant-mother at the time of the divorce decree on the basis of the written stipulation of the parties. Custody then was not a true judicial determination and was more akin to the award of custody in a default proceeding. In Rosenberg v. Rosenberg, 6 Kan. App. 2d 882, 636 P.2d 200 (1981), it was held: “Where a custody decree is entered in a default proceeding, and the facts are not substantially developed and presented to the court, the trial court may later, in its discretion, admit and consider evidence as to facts existing at the time of the earlier order, and upon the full presentation of the facts the court may enter any order which could have been made at the initial hearing whether a change of circumstances has since occurred or not.” Syl. ¶ 3. We see no reason the rule enunciated in Rosenberg (following Hill v. Hill, 228 Kan. 680, 620 P.2d 1114 [1980]) should not apply with equal force to custody decrees entered upon written stipulation of the parties. After review of this record, we are not prepared to say the trial judge erred in concluding the interests of the minor children would best be served by a change of custody. However, we are forced to conclude that such an order based primarily on the matter of religion is not proper, and that this cause should be remanded for that reason. The custody order entered herein is set aside and this cause is remanded to the district court for further hearing and determination of custody based on the present best interests of the minor children, all in accord with this opinion.	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Swinehart, J.: This is an appeal by two defendants from a jury verdict rendered in favor of plaintiffs in three personal injury actions, consolidated and tried in the District Court of Cowley County. The appellees in this action are plaintiffs Paul Cornejo; Margaret A. Johnson, administratrix of the estate of Gilbert Thomson, Jr., deceased; Florence A. Thomson, individually and as administrator of the estate of Gilbert L. Thomson, Sr., deceased; and defendant State of Kansas, Department of Transportation. Appellants are defendants Acid Engineers, Inc., and its insurer Home Insurance Company. On March 11, 1976, Gilbert Thomson, Jr., his father Gilbert Thomson, Sr., Fred Wilson and Paul Cornejo were riding in an automobile which collided with a truck operated by Steven Probst, an employee of defendant Acid Engineers, Inc., near the junction of U.S. 77 and K-15 in Cowley County. Gilbert Thomson, Jr., the driver of the car, was killed instantly. His father died seventeen days later after extensive medical treatment, during which time he suffered considerable pain from his injuries. Wilson and Cornejo were seriously injured. Just prior to the collision, Probst was proceeding east on K-15 and intended to turn north when he reached U.S. 77. As he approached the junction, he observed the Thomson vehicle traveling in a westerly direction on the curved portion of K-15. K-15 had no stop signals at that point. Other evidence damaging to Probst was introduced which is unnecessary to review for purposes of this appeal. The junction near the accident site was designed in 1931. The design was similar to many intersections built at the time. The defendant Department of Transportation was responsible for signing at the location. Its duties were mandated by the Manual on Uniform Traffic Control Devices. The 1971 edition of the manual was in effect at the time of the accident. Several of plaintiffs’ witnesses and appellants’ expert all admitted the manual contained no specific directives for a sign at the intersection. The occupants of the car or the representatives of their estates brought separate actions against the defendants and Steven Probst, who was later dismissed as a party. The actions were consolidated for trial. Prior to trial Wilson’s claim was settled. The jury returned a verdict attributing 100% of the fault for the accident to defendants Acid Engineers, Inc., and Home Insurance Company. No fault was assessed against the defendant Department of Transportation or Gilbert Thomson, Jr. Paul Cornejo was awarded $400,000. Margaret Johnson, the administratrix of the estate of Gilbert Thomson, Jr., was awarded a total of $50,000. Florence A. Thomson, the surviving spouse and administrator of the estate of Gilbert Thomson, Sr., sustained the following amount of damages according to the jury: “Non-pecuniary damages for wrongful death ................................ $25,000.00 “Pecuniary damages for wrongful death ................................ $25,000.00 “Damages for pain and suffering and expenses for Gilbert A. Thomson, Sr., prior to death ........................$425,000.00” In a post-trial order, the trial court amended the verdict returned by the jury at the request of plaintiff Florence A. Thomson, administrator of the estate of Gilbert Thomson, Sr. Based upon the affidavit of the jury foreman, the court found that the foreman had committed a clerical error in completing the verdict form. Under the authority of K.S.A. 60-260(a) the trial court amended the jury verdict with respect to Florence Thomson to state “ ‘Pecuniary damages for wrongful death in the amount of $425,000.00; Damages for Pain and Suffering in the amount of $25,000.00.’ ” Defendants Acid Engineers, Inc., and Home Insurance Company also filed a post-trial motion for new trial on various grounds, which was denied. In addition, their post-trial motion requesting the court to recall the jury to determine the validity of its verdict for the alleged reason that the jurors had improperly considered attorney fees and income tax consequences in arriving at the damage amounts was denied. The issues to be decided on this appeal are: (1) whether the trial court abused its discretion in refusing to recall the jury to establish alleged misconduct of the jury in arriving at a verdict; (2) whether the verdict of the jury can be impeached on a showing that the jury considered income tax and attorney fees during its deliberations; (3) whether the trial court properly amended the jury verdict pursuant to K.S.A. 60-260(a); and (4) whether the trial court properly instructed the jury concerning appellants’ theory of the case. The appellants contend that the trial court erroneously refused to allow recall of the jurors to establish that they considered attorney fees and income tax consequences in arriving at the damage awards. The arguments of the appellees in response to the first issue almost contradict the position they take with respect to the second issue. That is, appellees argue that the appellants erred by not submitting affidavits to the trial court describing their allegations of jury misconduct, but under the second issue, they claim that even if the affidavits had been available, they would not have been admissible because they would relate facts concerning the mental processes of the jurors. Because the parties have bifurcated the issues, they will be discussed separately here. Appellants filed two post-trial motions. In one they sought to recall the jurors for a hearing to determine the validity or invalidity of their verdict. The stated authority for this motion was Supreme Court Rule No. 181, 225 Kan. lxxiv, and K.S.A. 60-441. The trial court overruled the motion for two reasons: (1) the motion was inadequate because it failed to comply with K.S.A. 60-259 regarding service of affidavits, and (2) the matters proffered related to the mental processes of the jury. The second motion filed by the appellants sought a new trial for several enumerated reasons. One of the asserted reasons was improper jury conduct and seemingly encompassed the allegations in the other motion. The trial court exercised its discretion and refused to grant the new trial. Appellants now contend that their motion to recall the jurors was independent from the new trial motion and, accordingly, should not have been denied on the basis that they failed to comply with K.S.A. 60-259. Appellants’ argument has little merit. The only purpose to be served by filing a motion for recall of the jurors would be to ultimately obtain a new trial on the basis of evidence presented at a hearing on the motion to support the allegation of juror misconduct. Therefore, the appellants had to comply with any requirements set forth in K.S.A. 60-259 for new trial motions in order to properly pursue their motion to recall the jurors. The appellees and the trial court apparently believe that K.S.A. 60-259 required the submission of affidavits to support the mo tion to recall the jurors. Juror misconduct does, in fact, constitute a ground for a new trial. K.S.A. 60-259(a) First. K.S.A. 60-259(c) requires that a motion for new trial specifically state the alleged errors or grounds relied upon to support a new trial. Mere use of statutory language is insufficient. Evidence must be produced whenever the motion is grounded upon “exclusion of evidence, want of fair opportunity to produce evidence, or newly discovered evidence . . . .” K.S.A. 60-259(g). None of the other statutory grounds require the production of evidence. K.S.A. 60-259(ei), upon which the trial court and the appellees focus, contains the requisites to be followed when affidavits are produced in support of the motion. However, the section does not require the submission of affidavits but rather regulates their use once a decision has been made to include them with the motion. “When a motion for a new trial is based upon affidavits they shall be served with the motion. The opposing party has ten (10) days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding twenty (20) days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.” K.S.A. 60-259(d). Although the statute contains no explicit directives to produce affidavits with all post-trial motions for new trial, under the circumstances here there was very little way that the trial court could fairly consider the motion without an understanding of its factual basis. The alleged reason for the appellants’ motion was not self-evident from the record of the case already before the trial court. Rather, the motion was dependent upon evidence extraneous to any of the regular trial proceedings. Thus, the mere assertion by defense counsel that the juror misconduct should invalidate the verdict provided an insufficient basis for a rational decision on the part of the trial court. Appellants strenuously argue, however, that Supreme Court Rule No. 181 and the evidentiary constraints imposed by K.S.A. 60-441 and 60-444 effectively precluded them from obtaining affidavits prior to receiving authorization by the trial court. Supreme Court Rule No. 181 provides: “Jurors shall not be called for hearings on post-trial motions without an order of the court after motion and hearing held to determine whether all or any of the jurors should be called. If jurors are called, informal means other than subpoena should be utilized if possible.” Contrary to the position taken by appellants, by its very language Rule No. 181 does not contemplate an independent post-trial motion for the calling of jurors. Rather, it is a procedural aid when other post-trial motions are filed. It contains no prohibitions about interviewing jurors after trial. Indeed, Supreme Court Rule No. 169, 225 Kan. Ixxiii-lxxiv, recognizes that the jurors may, if they wish, discuss the case with the attorneys after trial and apprises jurors of their right to report any harassing activities of counsel to the trial court. The provisions of K.S.A. 60-441 and 60-444 relate to the question of what evidence in the form of affidavits may be received with respect to juror deliberations. These provisions are more pertinent to the second issue, and will be addressed thereunder. The parties cite three cases to support their respective contentions. They are State v. McDonald, 222 Kan. 494, 565 P.2d 267 (1977); State v. Griffin, 3 Kan. App. 2d 443, 596 P.2d 185 (1979); and Gannaway v. Missouri-Kansas-Texas Rld. Co., 2 Kan. App. 2d 81, 575 P.2d 566 (1978). Appellants contend these cases compel a finding that the trial court abused its discretion by its refusal to call the jurors to a hearing concerning their deliberations. After the trial in State v. McDonald, McDonald’s attorney learned of the existence of “exceedingly vituperative publications” that could have adversely prejudiced defendant. Defendant’s motion for new trial was partially sought on the basis of this prejudicial pretrial publicity. At oral argument, defense counsel stated that he had not interviewed the jurors because he thought he should first obtain the consent of the trial court, and asked permission for both trial counsel to discuss the possible prejudicial pretrial publicity with the jurors. This motion was denied and the trial court further concluded that the publication had absolutely no effect on the trial. The Supreme Court held the trial court erred. The court found that an inquiry into whether the jurors were aware of the inflammatory publication, read it, and discussed it, was relevant and not proscribed by K.S.A. 60-441. The Supreme Court opined that the trial court should have granted counsel leave to interview the jurors. The court concluded: “While there is nothing in our law to prohibit counsel from interviewing jurors after the conclusion of trial, leave of court is required before jurors may be called for hearings on post-trial motions. Supreme Court Rule No. 181 (220 Kan. lxviii). We think counsel pursued a proper course in seeking permission of the court to interview jurors. When in doubt in an area such as this, counsel cannot be faulted for seeking guidance from the court.” 222 Kan. at 497. McDonald would seem to provide some support for the appellants’ position. However, it is distinguishable to the extent that the trial court had before it concrete evidence of “exceedingly vituperative publications” against the defendant, which the Supreme Court determined would have been highly relevant in determining whether the jury’s verdict was influenced by the pretrial publicity. In contrast, the trial court in this action had only the uncorroborated view of defense counsel that the jury may have considered attorney fees and income taxes in computing the damage amounts. The allegations of defense counsel were controverted by another trial counsel who testified at the motion hearing that he and other counsel had discussed the case with the jurors and did not receive the impression that any improper factors had been considered. In State v. Griffin, 3 Kan. App. 2d 443, defense counsel sought permission under Supreme Court Rule No. 181 to subpoena certain jurors to ascertain whether or not one or more of the jurors had failed to adhere to the limiting instructions of the trial court concerning a newspaper article which the trial court had already determined would have a prejudicial effect if the jury became aware of it. Defense counsel suspected the violation based upon its conversation with a juror in the presence of other counsel and sought the order because of the juror’s reluctance to further converse with counsel. This court determined that such an inquiry was not prohibited by K.S.A. 60-441 and that an inquiry was the only method by which defendant could demonstrate he was not afforded a fair trial due to jury misconduct. There was also evidence that one juror when polled initially stated that the verdict was not his, but upon questioning by the court responded that it was. When the trial court asked whether any of the jury members had been unable to follow its instructions, none of the jurors replied that they had not been able to do so. Accordingly, this court found that the trial court abused its discretion in denying defense counsel’s request to interview the jurors. Griffin, like McDonald, may provide some support for appellants, but it also is distinguishable in several ways. First, defense counsel’s asserted need to invoke Supreme Court Rule No. 181 was readily apparent in Griffin when counsel reported to the trial court that one of the jurors had refused to discuss the case with him after their initial conversation. Here, there was no indication that any of the jurors refused to discuss the alleged misconduct with defense counsel. Further, the Griffin conversation was held in the presence of other counsel. In this action, several counsel for various parties discussed the situation with the jurors independently and arrived at different interpretations of the jury deliberations. Additionally, in Griffin, the trial court had taken notice of the prejudicial nature of a newspaper article which appeared the day of the trial and had, in fact, given a limiting instruction on the subject. Unlike Griffin, where the trial court was able to glean at least part of the factual basis for defense counsel’s motion from the record, the trial court in this action was provided no similar factual information upon which to rule. There is no specific indication from the record that the jury apportioned a specific amount for attorney fees or for income taxes when it arrived at the damage award. Finally, appellants’ reliance on Gannaway is misplaced because of the many distinguishing factors discussed herein. In Gannaway this court decided that the trial court did not err in refusing to receive testimony that the jury failed to follow its instruction on reducing the amount of anticipated future loss to its present worth. Defense counsel subpoenaed the jury foreman without first obtaining leave of court, in violation of Supreme Court Rule No. 181. This court further found the proffered testimony would have been inadmissible under the terms of K.S.A. 60-441 because it involved the mental processes of the jurors, and concluded: “The case at bar, however, is not one in which it is apparent from the facts and circumstances that the verdict resulted from jury disregard of the instructions. Only by questioning the jurors could the verdict be impeached, and that cannot be done.” 2 Kan. App. 2d at 84. Gannaway does stand for the proposition that counsel cannot subpoena a juror without, prior court authority, as required by Rule No. 181. It does not, however, preclude obtaining affidavits from jurors who are willing to provide them. Here counsel made absolutely no showing whatsoever that it was not possible to submit some evidentiary bases to support their allegations of juror misconduct. Gannaway simply does not reach the question as to whether a trial court abuses its discretion by refusing to subpoena jurors pursuant to Rule No. 181 when no affidavits alleging juror misconduct are submitted. The trial court’s rationale for refusing defense counsel’s request to call the jury for hearing is evident from the following pronouncement it made from the bench: “I asked counsel as to how the Court was to determine whether or not there was sufficient cause to bring the jury back which is clearly an unusual event, an extraordinary event in trial procedure, to bring a jury back and question them with regard to anything they did during the trial. In the absence of Affidavits, the Court is left with nothing to rely on but the statements of counsel and the Court has no reason to doubt the statements of counsel, but, nonetheless, they don’t constitute Affidavits in the form required by the statute or of the nature required by the statute, and you have, of course, the problem that . . . other attorneys have also conversed with them [jurors] on the subject of their deliberations and come away apparently with a different interpretation of what took place, what influenced their deliberations, what evidence they did or did not consider and how any particular item or supposition or anything else weighed with them. I see no way that the Court could, by weighing the statements of counsel, make a rational determination as to whether or not the jury should be returned for further proceedings in which it would be determined by inquiry by the Court or counsel as to whether or not they had improperly conducted their deliberations or considered things which they should not have considered or misunderstood the Instructions.” Had the trial court received something more substantive regarding the alleged misconduct, it could possibly be found that it abused its discretion in refusing to recall the jurors as provided in Supreme Court Rule No. 181. However, in view of the inadequate proffer made at oral argument on the motion, it is not clearly obvious that the trial court abused its discretion in refusing to call the jurors. Appellants next argue that the trial court erroneously determined that receipt of evidence concerning the alleged consideration by the jury of attorney fees and income taxes related to the mental processes of the jury, and, consequently, was inadmissible under K.S.A. 60-441 and 60-444. K.S.A. 60-444 permits receipt of evidence from a juror which has “a material bearing on the validity of the verdict,” with the exception of the explicit limitations in K.S.A. 60-441 which include the mental processes of the jurors. The threshold question in this case, then, is whether the evidence appellants sought to introduce involved the mental processes of the jury. Johnson v. Haupt, 5 Kan. App. 2d 682, 623 P.2d 537 (1981). If the evidence does not violate K.S.A. 60-441 and demonstrates juror misconduct, a new trial will still be warranted only if appellants’ rights have been substantially prejudiced. The burden of proof is upon the appellants who claim the prejudice. State v. Fenton, 228 Kan. 658, 620 P.2d 813 (1980); Johnson v. Haupt. Kansas has long recognized that the addition of possible attorney fees to the amount of damages constitutes jury misconduct. Verren v. City of Pittsburg, 227 Kan. 259, 607 P.2d 36 (1980); Dunn v. White, 206 Kan. 278, 479 P.2d 215 (1970). Further, it is improper for a jury to consider federal or state income taxes in making a damage award. Spencer v. Eby Construction Co., 186 Kan. 345, 350 P.2d 18 (1960); Rediker v. Chicago, Rock Island, Pacific Rld. Co., 1 Kan. App. 2d 581, 571 P.2d 70, rev. denied 225 Kan. 845 (1977). Appellants allege that the jurors considered both attorney fees and taxes, and, accordingly, they submit the trial court should have received evidence about this alleged misconduct as it does not violate K.S.A. 60-441. While all parties seemingly acknowledge that under some circumstances evidence concerning jury consideration of attorney fees and income taxes may be proper, appellees contend that it is necessary to demonstrate that a specific amount of the damage award was allocated for attorney fees and for taxes, and that appellants failed to so demonstrate. In their written motion, appellants Acid Engineers, Inc., and Home Insurance Company stated: “That it is believed that either clear confusion existed as to instructions given and/or that jurors considered evidence not introduced during the course of the proceedings for this Court.” At oral argument on the motion, their counsel stated: “I believe that first juror that I did visit with, however, indicated to me that in these cases they considered two things which were not introduced into evidence. Those two things being, one, that income tax would be paid on the verdicts; and, two, that attorneys’ fees would have to be paid and that that was considered, discussed in the jury room at the time of rendering these verdicts, and as I understand it, taken into consideration.” Counsel for another party informed the court, however, that he did not share defense counsel’s impression of what happened in the jury room. All parties rely upon Verren v. City of Pittsburg, 227 Kan. 259, to support their respective contentions. This is one of the recent pronouncements of our Supreme Court on the subject and sets forth a few explicit guidelines to be followed. In Verren the defendant supported his motion for new trial on the ground of juror misconduct with affidavits of two jurors. One affidavit stated that the jury apportioned a specific amount of the total damage award for the plaintiff’s attorney fees. The affidavit also contained an assertion that the jury considered the percentage of fault attributable to the parties and then considered that percentage in arriving at the damages. The second affidavit was virtually the same. The Supreme Court concluded that the trial court had erroneously determined that the proposed testimony was inadmissible under K.S.A. 60-441 and 60-444(a). The court observed that it had always held that a verdict could not be impeached by a juror on any ground inherent in the verdict. Rather, evidence would be admissible if it related “to extrinsic misconduct or to physical facts or occurrences within or without the jury room.” 227 Kan. at 260. The court continued: “[T]here are certain formalities of conduct which a jury is required to follow. Failure to obey these essential formalities of conduct can invalidate the verdict. Evidence may be offered in such cases to impeach a verdict when the evidence will show actions of the jurors by which they have intentionally disregarded the court’s instructions or violated one or more of the essential formalities of proper jury conduct.” 227 Kan. at 261. The court concluded that the proffered evidence before the trial court did not relate solely to the mental processes of the jury. Instead, if the allegations were proved, the jury could be found to have consciously conspired to “disregard and circumvent the instructions on the law given by the court,” because the jurors were not instructed to include attorney fees as an item of damages. 227 Kan. at 262. The court cited Dunn v. White, 206 Kan. 278, 479 P.2d 215 (1970), where juror misconduct was found because the jury added an amount for attorney fees to the damages. The interpretation afforded Dunn v. White in Verren, and a review of Dunn v. White, indicate that not every mention of attorney fees would necessarily constitute juror misconduct. However, misconduct is clearly to be found whenever a specific amount is added onto the award for inappropriate items of damage, e.g., attorney fees and income taxes. Here the jurors were instructed as to the precise elements of damage that could be awarded to the various plaintiffs. Amounts for attorney fees and income taxes were not included as items of damage. Based upon the legal authorities referred to above, it would be permissible for the trial court to admit evidence that the jurors had specifically included in their damage awards amounts for attorney fees and income taxes. The problem in this case, however, is that the proffered testimony does not clearly demonstrate just what the jurors did with respect to attorney fees and income taxes to be able to determine whether their actions could have constituted misconduct. The assertions of the appellants were deficient. Unlike Verren, where there were affidavits that expressly stated the jury included attorney fees in the amount of the award, nothing conclusive was presented to the trial court in this action. Based upon the application of foregoing legal authority to the facts of this case, we find that appellants have failed to show a clear abuse of discretion in the trial court’s refusal to grant affirmative relief on these two motions. The appellants argue that the trial court erroneously amended the verdict returned by the jury. After the jury returned its verdict, the court asked whether it was the verdict of all jurors. The members of the jury responded affirmatively. Upon request of defense counsel, the trial court then polled the members and each responded that the verdict was his or hers. The jury was then discharged. After trial, plaintiff Florence Thomson filed a motion requesting that the trial court amend the jury form with respect to the damages awarded her as the surviving spouse and administrator of the estate of Gilbert L. Thomson, Sr. The jury had awarded the plaintiff $25,000 as non-pecuniary damages for wrongful death, $25,000 as pecuniary damages for wrongful death, and $425,000 as damages for pain and suffering and expenses of Gilbert Thomson, Sr., prior to death. With this motion, plaintiff submitted the affidavit of the jury foreman who stated that he inadvertently transposed the figure of $25,000 on the middle line of the verdict form designated as pecuniary damages with the figure $425,000 on the third line of the form designated as damages for pain and suffering. In response to this motion, the trial court entered an order on the basis of K.S.A. 60-260(a) correcting what it deemed a clerical error in the verdict. The court specifically found the motion and affidavit could properly be considered by the court as they did not constitute an inquiry into the mental processes of the jurors. The judgment was amended to read: “ ‘Pecuniary damages for wrongful death in the amount of $425,000; Damages for Pain and Suffering in the amount of $25,000.’ ” Appellants argue this action of the trial court was prohibited by the provisions of K.S.A. 1980 Supp. 60-248(g) and Traylor v. Wachter, 227 Kan. 221, 607 P.2d 1094 (1980). The Supreme Court there found that such a correction “must occur before the jury is discharged and with the assent of the jury.” 227 Kan. at 223. We find that Traylor v. Wachter is controlling, and the case is remanded with directions to reinstate the jury verdict as originally entered by the trial court. Appellants finally contend that instruction No. 14 “was insufficient concerning the duty of the State of Kansas to exercise good judgment in signing the intersection.” They assert that this objection was adequately raised in the court below when they requested that the court give their proposed instructions No. 18 and 19, instead of instruction No. 14. Based upon a review of the transcript, the objections entered by the appellants at trial are not precisely the same as appellants characterize them in their brief. We find that the appellants waived error with respect to the instructions because they failed to distinctly state “the matter to which he or she objects and the grounds of his or her objection” unless the instruction is clearly erroneous. K.S.A. 60-251(b). We find that the instruction was not clearly erroneous. Judgment is affirmed as modified, with directions to reinstate the jury verdict as originally entered.	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Rees, J.: As an aggrieved party, Sam Helbach undertook an appeal from a road vacation order made by the board of county commissioners of Marion County. A trial de novo on the record was sought. The trial court dismissed for lack of jurisdiction. The appellant concedes the board acted lawfully. We are asked to find that the action of the board was quasi-judicial, not administrative or legislative, and to afford a trial de novo on the record. If the action of the board was administrative, no judicial review by appeal was available. This is acknowledged by the appellant. We hold that when a board of county commissioners finds a road is not a public utility and orders its vacation (K.S.A. 68-102), the board action is administrative, not quasi-judicial. Absent statutory provision for judicial review, no appeal is available. See Brinson v. School District, 223 Kan. 465, 467, 576 P.2d 602 (1978). Even if we were to hold the board action was quasi-judicial, in this case it remains that the evidence, as reflected by the record, (1) supported conflicting permissible inferences and conclusions, (2) did not, as a matter of law, mandate a contrary decision, and (3) included evidence sufficient to support the order. Affirmed.	[ -108, -24, -3, -68, 43, -32, 50, -126, 65, -5, 101, 83, -81, -53, -124, 123, -70, 111, 116, 107, -57, -77, 119, -63, -74, -13, -39, 87, -5, 77, -26, 94, 76, -79, 10, 53, 70, 65, -57, 80, -114, 46, -102, 72, -63, -61, 48, -17, 18, 15, 49, -113, -21, 44, 24, -61, -88, 44, 89, -81, -48, -16, -72, 23, 95, 4, -95, -92, -104, -125, -40, 42, -104, 57, 8, -4, 115, -90, -126, 117, 13, -71, 8, -26, 66, 3, 60, -17, -20, -87, 14, 56, 29, -89, -101, 89, 107, 5, -106, -67, 116, 50, 10, 126, -26, -59, 91, 44, -122, -50, -96, -105, -113, 100, -106, 1, -21, 5, 48, 53, -115, -10, 88, 68, 50, 91, -50, -108 ]
Parks, J.: Plaintiff, State of Kansas, ex rel., James A. McCain, Secretary of Human Resources, appeals from an order of the trial court dismissing its claim for delinquent unemployment taxes against Shawn W. Allen, an officer and operator of Construction Enterprises, Inc. The central issue is whether the operators of a defectively formed corporation are personally liable for the company’s unemployment taxes. K.S.A. 17-6003(c)(5) requires that a certified copy of the articles of incorporation shall be recorded in the office of the register of deeds of the county in which the corporation’s registered office is located. Moreover, K.S.A. 17-6006 states the corporate existence shall date from the incorporators’ compliance with K.S.A. 17-6003. In the present case, the trial court found that a duplicate copy of the articles had never been filed in the Johnson County register of deeds’ office; thus, the requirements of K.S.A. 17-6003(c)(5) had not been satisfied. However, the trial court concluded that the defendant Shawn Allen had substantially complied with the Kansas Corporation Code in forming Construction Enterprises, Inc., and that he is not liable for corporate debts such as the unemployment contributions taxes due the State. The trial court then ordered judgment for the plaintiff against the defendant Construction Enterprises, Inc., in the amount of $711.49, plus postjudgment interest. The State appeals, contending that the defendant should have been held personally liable because the purported corporation was never validly incorporated. The fundamental question posed by this case is whether “substantial compliance” with the provisions of K.S.A. 17-6006 is sufficient to secure corporate existence. In State, ex rel., v. Triplett, 213 Kan. 381, 517 P.2d 136 (1973), a similar situation arose under the old corporation code. The purported corporation filed its articles of incorporation with the secretary of state but failed to file a certified copy with the register of deeds. The Triplett court indicated that absent compliance with the dual filing requirement of K.S.A. 17-2805 (the predecessor of K.S.A. 17-6006), no corporation was formed. This conclusion impliedly rejected the argument that anything other than strict compliance with the formalities of the corporation code would serve to create a corporation. At one time, provisions regarding the formation of a corporation were very technical and confusing. To alleviate the resulting unfairness and to promote greater stability in corporate dealings, the courts adopted the concepts of the de facto and de jure corporation. Carpenter, De Facto Corporations, 25 Harv. L. Rev. 623, 623-25 (1912). A de jure corporation is one created in strict or substantial conformity to the governing corporation statutes. Fletcher, Cyclopedia of the Law of Private Corporations, § 3760 (rev. perm. ed. 1966), hereinafter referred to as Fletcher. The de facto corporation may be found to exist when there is a defective but bona fide attempt to incorporate coupled with an exercise of corporate powers. Fletcher, § 3761; Douglass v. Midland Oil Co., 121 Kan. 448, 247 Pac. 1048 (1926). The cases discussing when a de facto or a de jure corporation may be found vary so widely that one scholar concluded, “the doctrine of the ‘de facto’ corporation may become merely an historical example of legal conceptualism at its worst.” Frey, Legal Analysis and the “De Facto” Doctrine, 100 Pa. L. Rev. 1153, 1180 (1952). The confusion resulting from this history has in part been the catalyst for modern corporation statutes which simplify corporate creation and define the point of effective existence. Fletcher, § 3762. Our corporation code is such an attempt at clarification and it specifically defines the point at which corporate existence begins. K.S.A. 17-6006 states: “Upon the filing with the secretary of state of the articles of incorporation, executed, acknowledged and filed in accordance with section 3 [17-6003], the incorporator or incorporators who signed the certificate, and his or their successors and assigns, shall be and constitute a body corporate from the date of such filing by the name set forth in the articles, subject to the provisions of subsection (d) of section 3 [17-6003] of this act and subject to dissolution or other temination of its existence as provided in this act.” K.S.A. 17-6003(c) defines a proper filing to include delivery of the document to the office of the secretary of state and local register of deeds’ office. Moreover, K.S.A. 17-6005 states that a copy of the articles of incorporation duly certified by the secretary of state and register of deeds is prima facie evidence of the performance of all conditions precedent to the document’s effectiveness. These provisions clearly indicate a legislative intent to define the beginning of corporate existence with precision and to alleviate the doubt inherent in the de facto/de jure distinctions. In light of the Triplett case and the plain import of the provisions of the corporation code, we conclude that no de facto or de jure corporation can exist until the articles of incorporation are filed both with the secretary of state and the appropriate county register of deeds’ office. Since Construction Enterprises failed to come into existence as a corporation, there was no valid corporate entity to shield defendant Shawn Allen from personal liability. Judgment is reversed and the case is remanded to the district court with directions to assess the taxes and interest due the State of Kansas and to enter judgment against defendant Shawn Allen.	[ -12, 106, -48, 92, -88, -32, 50, 10, 120, -127, 103, 87, -49, -54, 68, 123, -27, 125, -48, 115, 103, -77, 43, 75, -58, -73, -15, -59, -77, 75, -12, -44, 76, 48, -54, -123, -90, 2, -55, 28, -50, 14, 10, -7, -7, 65, 52, -21, 56, 11, 113, -100, -69, 56, 62, -53, 104, 46, 79, -18, -63, -80, -111, 85, 127, 23, 35, 5, -100, 3, -64, -81, -102, -80, 32, -56, 82, 54, -106, -12, 11, 73, 1, 46, 99, 2, 16, -51, 124, -104, 14, -10, 29, -27, -79, 24, 91, 15, -106, 29, 93, 22, 7, -4, -28, -60, 31, 104, -125, -50, -62, -77, -113, 116, 14, 3, -1, -128, -112, 96, -34, 38, 95, 43, 50, 27, -113, -16 ]
The opinion of the court was delivered by Valentine, J.: In this action an order of attachment was issued. The defendant moved the court to set aside and vacate said order, on the following grounds, to-wit: “ lst.-It was issued at the commencement of the action, and the return-day thereof is not the same as that of the summons. 2d.-The return-day of the order appears on its face to have been altered after the issuing thereof. 3d.-There is no proof of service or return of the order. 4th.-The affidavit on which the order is based is insufficient in not showing the specifications required by the statute for the issuing of the order. 5th.-There has been no publication, nor commencement of action. Said motion will be based upon the papers in the action.” The motion came on to be heard upon the papers in the case. “And thereupon the plaintiff, by her attorney F. A. Bettis, moved the court for leave to amend the order of attachment in the cause issued by making the return-day thereof ten days from the date of the issue thereof, which the court refused; to which the plaintiff then and there excepted. And the court having heard the argument of counsel upon the motion to discharge the order, doth find that said order of attachment is void, and not amendable, and doth order that the same be discharged ; to which ruling t-he plaintiff by her attorney then and there excepted.” The action seems to have been commenced on the 25th of September, 1872. Both the summons and the order of attachment were issued on that day. The only irregularities appearing in the record of the proceedings are as follows: The petition is marked “Filed September 28th, 1872;” and the return-day of the order of attachment is October 15th, 1872, while that of the summons is October 5th, 1872. From the other evidence contained in the record we must consider the marking of the petition as filed “September 28th,” a clerical mistake. It should have been marked filed September 25th. No action can be commenced except by filing a petition. And no summons or order of attachment can be issued except at the time of, or after the commencement of an action. Section 57 of the code provides that “A civil action may be commenced in a court of record, 'by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.” (Gen. Stat., 640, 641.) Section 190 of the code provides that “The plaintiff in a civil action for the recovery of money, may at or after the commencement thereof, have an attachment,” etc. (Laws of 1870, page 171, §4.) Now the presumptions of law are always in favor of the regularity of the proceedings of a public officer, and it is much less probable that the clerk of the district court in this case should have made a mistake in issuing a summons and order of attachment before any suit was commenced, than that he should have made a mistake in marking the time of filing the petition. It is scarcely possible that the clerk could have issued through mistake a summons and an order of attachment three days before the petition was filed; but he might through mistake have marked the petition filed Sept. 28th, when it was in fact filed Sept. 25th. Besides, the affidavit for the order of attachment was sworn to and filed on the 25th of September, and the plaintiff in the affidavit then swears “That said plaintiff Susan J. Smith has commenced said suit against the above-named defendant Helen Payton,” etc. An affidavit for service by publication was also filed in the case, and in this affidavit the affiant-, W. P. Lamb, attorney for the plaintiff, says, that “said cause was.commenced on the 25th day of September, 1872, by the filing of a petition, the issuing of a simmons thereon, and the filing of an affidavit for attachment, and the issuing of an order of attachment thereon,” etc. The defendant herself in her motion to set aside the order of attachment says that the order of attachment was issued at the commencement of the action, etc. And she does not at any time, as appears from the record, make any specific point that the order was issued before the petition was filed. This is a strong admission against the defendant. We are therefore led irresistibly to the conclusion that the petition was in fact filed September 25th. The only question then for us to consider is, whether the order of attachment was void because it was made returnable in twenty days instead of in ten days. Section 195 of the code provides that the return-day of the order of attachment, when issued at the commencement of the action, shall be the same as that of the summons; when issued afterward, it shall be twenty days after it is issued. (Gen. Stat., 666.) And § 61 of the code provides that “The summons shall be served and returned by the officer to whom it is delivered, except when issued to any other county than the one in which the action is commenced, within ten days from its date. (Gen. Stat., 641.) In the present case the order of attachment was issued on the day of the commencement of the suit, but whether at the time of the commencement of the suit or afterward is not shown, except possibly by the affidavit of the plaintiff made for the purpose of obtaining the order of attachment filed September 25th, where she says “ That said plaintiff Susan J. Smith has commenced said suit,” etc. This would indicate that the order was issued after the commencement of the suit. But for the purposes of this case, suppose that the order was issued at the commencement of the suit: then was the order void? We think not. The statute fixes the return-day of the writ, and not the clerk. (Code, §§ 195, 61.) And even though the clerk should make a mistake in designating the true return-day, still his mistake would not invalidate the writ. It would still be the duty of the sheriff to serve the writ within the time prescribed by law, and then return the same to the court. The statute does not even require that the clerk should designate the return-day. In the present case the writ was not only served within ten days from its date, as prescribed by the statute, but it was completely served within two days. The writ'in this case was returned twenty-one days after it was issued; but we suppose that it will not be claimed that a writ, or the service thereof, becomes void by reason of a failure of the sheriff to return the writ on the return-day. It is the general practice of sheriffs not to return writs until after the return-day. The order of attachment issued in this case should not have been set aside, and therefore the order of the court below setting it aside must be reversed, and the cause remanded for further proceedings. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: This was an action on a promissory note. The note was originally placed in escrow to be delivered upon certain conditions. It had never been delivered by the depositary. Hence it is claimed by plaintiff in error that no action could be maintained upon it. This is an error. When the conditions of the escrow are performed the title vests in the payee. The title .does not hinge on the action of the depositary, but upon the performance of the conditions. “ Though it was not formally delivered over by the depositary to the plaintiff, yet it took effect in his hands the instant the conditions were performed, without any formal act of delivery on his part.” (Ch. J. Swift, in Couch v. Meeker, 2 Conn., 302; 1 Pars. on Notes, 51.) The note was placed in escrow to be given to the plaintiffs on the completion of a contract to deliver 200.000 hedge plants. There was testimony showing a delivery of 75,000, and tending to show an excuse for the nondelivery of the remainder. There was no pretense that any more than the 75,000 had actually been received by the defendants. The court gave this instruction: “ The defendants have set up and claimed no set-off or counter-claim against the note sued upon, but rely upon a total failure of consideration, and an utter failure on part of plaintiffs and Morris to comply with their contract to deliver the hedge plants according to their agreement, so that if under the contract plaintiffs and Morris have delivered 75,000 of the hedge plants, and Taylor has received them and converted the same to his own use, you must find for the plaintiffs.” The jury were also told by another instruction that if they found for the plaintiffs they must find the full amount of the note. In this instruction we think the court erred. Whatever rights of action the plaintiffs may have had upon the contract, upon delivery of 75.000 plants, they had no right to the note, and could maintain no action upon it until after a full compliance with the conditions of the escrow. Until such time, it is as though no note had ever been signed. A part performance passes no title, gives no interest in it. The instruction contemplates the note as delivered, and the defendants as interposing defenses to it. The question for the jury was as to the delivery of the note, or that which is tantamount to a delivery. Under that instruction it was hardly possible for the jury to find otherwise than as they did, for the plaintiffs; but under the testimony it is, to say the least, an open question as to the proper verdict. This is all that is necessary to decide, in order to dispose of the case here. It may perhaps be proper- to say, in view of a future trial, and the conflicting testimony presented in this record, that before the plaintiffs can recover upon this note they must show a delivery of the 200,000 plants, or a tender of the same and a refusal to accept them. Also, that the defendants” were entitled to live plants, in good ordinary merchantable condition, and the full number contracted for; that in order to constitute a delivery, or a tender, there must be a separation and identification of the plants, or else in case of a tender an absolute refusal to take any plants out of the whole mass from which the delivery was to be made. The judgment will be reversed, and the case remanded with instructions to grant a new trial. All the Justices concurring.	[ -110, 124, -47, -99, 10, 96, 43, -104, 65, -125, 34, 83, -19, -61, -107, 105, 101, 41, 112, 74, 84, -93, 39, 91, -14, -13, -46, -59, -79, -51, 70, -33, 76, 48, -62, -43, -26, -62, -63, 80, -114, -91, 8, 108, -15, -29, 48, -69, 84, 79, 117, -49, 115, 37, 25, 70, 111, 41, -23, 57, -32, -72, -97, 7, 111, 6, -111, 101, -100, 66, -40, 46, -110, 55, 1, -24, 114, -74, 6, 116, 109, 25, -87, 102, 98, 49, 101, -18, -104, -88, 38, 95, 15, -90, 16, 72, 43, 47, -74, -99, 116, 17, -26, -10, -6, 29, 29, 108, 3, -113, -46, -77, 47, 122, 24, -117, -17, -125, 17, 97, -50, -72, 92, 101, 120, -101, -114, -33 ]
The opinion of the court was delivered by Brewer, J.: The defendant in error brought his action in the district court of Labette county against plaintiff in error and one Josiah Kuykendall to compel a specific performance of a contract to sell real estate. In his petition he alleged a written contract on the part of Bassett to sell him the real estate at any time within eight days on the payment of $3,500; that Kuykendall had notice of this written contract; that within the eight days he tendered the $3,500 and demanded a deed, but that Bassett, combining with Kuykendall to cheat and defraud him, refused to convey, but sold and conveyed to Kuykendall for a greater sum than $3,500. He asked a decree compelling Kuykendall to convey to him upon payment of the $3,500, and requiring Bassett to join in the conveyance, and enjoining Kuykendall from selling or incumbering the premises in any manner. Bassett and Kuykendall filed a joint answer in which Bassett admitted the contract, but denied everything else, and Kuykendall admitted purchasing from Bassett and denied the other allegations. The case was tried by the court without a jury. Findings of fact and conclusions of law were made, and judgment entered in favor of Woodward. The testimony was not preserved, so that the case is here simply on the pleadings, the findings and the judgment. The findings sustain the allegations of the petition. In addition the court finds the terms of the sale from Bassett to Kuykendall, to-wit, cash $2,000, and note and mortgage for $1,700, and that the sale had been consummated. Upon these facts it would seem clear that Woodward upon payment of the $3,500 was entitled to a decree for a specific performance. Such a decree was entered, and so far at least as Woodward is concerned we see no error in it. Counsel for plaintiff in error claims that the prayer for relief, in the petition does not warrant the decree. The decree commanded Kuykendall, upon payment of the $3,500, to execute a 'conveyance to Woodward, and Bassett to execute to Woodward an assignment of the mortgage and to surrender the- notes secured thereby to Kuykendall. It was the duty of the court in framing its decree to see that such conveyances and instruments were executed by the defendants as would secure to the plaintiff that which he had contracted for, a clear and perfect title to the premises. This was done, and only this. It does not appear that the attention of the district court Avas called to the fact that the prayer for relief did not speak of an assignment of a mortgage. We certainly should not disturb a judgment on account of a variance so purely immaterial. It may be that the court erred in not directing specifically the payment of $2,000 to Kuykendall and $1,500 to Bassett, but that is a matter in which Woodward is not the only party interested. If any error of that kind occurred, it can be corrected only by a proceeding in error to Avhich Kuykendall also is a party defendant. The judgment will be affirmed. All the Justices concurring.	[ -46, -4, -7, -83, 10, 64, 42, -118, 57, -95, -89, 123, -19, -50, 4, 41, -10, 41, 116, 123, 69, -77, 7, 96, -46, -109, -37, 77, -75, 79, -12, 87, 76, 16, -54, -43, 70, -54, -43, 80, 78, -123, 9, 100, -39, 72, 52, 27, 16, 73, 49, -116, 115, 38, 29, 74, 109, 40, -39, 61, -48, -8, -69, -107, 127, 7, -79, 37, -40, 3, -8, -22, -110, 49, 3, -24, 123, -74, -62, 116, 73, -117, 45, 38, 102, 32, 25, -21, -88, -72, 14, -1, -115, -89, -47, 88, 32, 40, -74, -100, 116, 18, 2, -4, -26, 4, 29, -20, 7, -82, -44, -77, -113, 116, -110, 9, -25, 39, 37, 97, -49, -32, 92, 103, 56, -101, -98, -71 ]
The opinion of the court was delivered by Valentine, J.: This is an action in the nature of quo warranto brought originally in this court by C. H. Graham, as plaintiff, against Henry E. Cowgill, to have determined their respective claims to the office of county treasurer of Coffey county. The material facts are, in brief, substantially as follows: On the 15th of November, 1873, the plaintiff was the duly elected, qualified and acting county treasurer of said Coffey county. On that day the board of county commissioners of said county declared said office vacant. On the 17th of November, 1873, said board appointed Henry E. Cowgill treasurer of said county to fill said supposed vacancy. Said Cowgill gave bond, duly qualified, and on the 21st of November, 1873, took possession of said office. Upon these facts, who is entitled to the said office of county treasurer? We think that the plaintiff is unquestionably entitled to the office. The county board had no right in such a case to declare said office vacant. They can do so only where a judgment has been rendered against the treasurer on his official bond. (Gen. Stat., 294, §179, sub. 8.) No such judgment was ever rendered in this case. Nor is it claimed that any judgment of any kind has ever been rendered against treasurer. It is not claimed that said office had become vacant under §179 of the act relating to counties and county officers, (Gen. Stat., 294,) nor is it claimed that it became vacant under any other law except §180 of said act. (Gen. Stat., 294.) That section provides that — “If any * * * county officer shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty, he shall forfeit his office, and shall be removed therefrom by civil action in the manner provided in the code of civil procedure.” Now, for the purposes of this case we shall assume that the plaintiff neglected and refused to perform certain acts, and that he corruptly and oppressively performed certain other acts, whereby he forfeited his said office. But the office did not thereby become vacant. He simply forfeited his right to further hold said office; and the state (and no one else) had a right, by a civil action under the code in the nature of quo warranto, to remove him therefrom. (Gen. Stat., 759, 760, 761; Laws of 1871, pp. 276, 277.) And until he should be removed therefrom by such civil action no vacancy would occur. The vacancy occurs only by the judgment of some court of competent jurisdiction. A county officer cannot be ousted from his office for any supposed neglect of duty until after he has had a fair tidal before some court of competent jurisdiction, and judgment has been rendered against him. Judgment in this case will be entered in favor of the plaintiff. All the Justices concurring.	[ -76, 110, -32, -100, 42, -64, 42, 26, 83, -77, -73, 83, -87, -126, 0, 127, -14, 63, 117, 88, -57, -74, 19, 105, -94, 114, -51, -59, -77, 75, -14, 95, 9, 48, 74, -43, 7, 32, -57, 84, -50, 1, 104, -27, -48, 8, 52, 89, 82, 75, 85, 106, -29, 42, 24, 99, 105, 44, 91, 9, 80, -13, -99, -123, 79, 29, 19, 71, -100, 71, 104, 42, -104, 51, 0, -8, 91, -90, -122, 116, 111, -119, 40, 114, 103, 17, -76, -21, -72, -104, 63, -69, 31, -26, -108, 89, 106, 11, -74, -99, 117, -102, 7, -2, -29, -123, 89, 44, 13, -50, -128, -109, 15, 96, -102, 3, -9, -95, 48, 97, -52, -28, 92, 99, 56, -101, -114, -16 ]
The opinion of the court was delivered by Valentine, J.: This action was commenced originally in a justice’s court. Judgment was there rendered in favor of the defendant in error, plaintiff in the justice’s court, and against Ayres, the defendant in the justice’s court. Ayres removed the case to the district ‘court on petition in error, where the judgment of the justice was affirmed; and now as plaintiff in error Ayres brings the case to this court. It is claimed that the district court erred in affirming the judgment of the justice; and it is also claimed that the justice erred in rendering the judgment he did upon the evidence introduced at the trial before him. That is,' it is claimed that the evidence introduced at the trial is not sufficient, and does not sustain the judgment rendered by the justice. These are the only rulings of either court complained of. The trial in the justice’s court was before the justice alone, and he found generally for the plaintiff and against the defendant, and rendered his judgment accordingly. The defendant (now plaintiff in error,) excepted to the judgment, but did not ask the court to make special findings of either fact or law, and made no motion for a new trial. The exception to the judgment was the only manner in which the defendant raised any question as to the sufficiency of the evidence; and no question was raised in any form or at any time as to the relevancy or competency of any particular portion of the evidence. Under these circumstances is there anything for us to review? "We think not. This question has already been decided in this court. Major v. Major, 2 Kas., 337, 338, 339. (See also as having some application to this case, Taylor v. Rockwell, 10 Iowa, 530; Swafford v. Dovenor, 1 Scammon, (Ill.) 165, and same volume, 169, 330; Hopp v. Stone, 39 Mo., 378. "When a case is tried before a justice of the peace upon the evidence it is tried in the same manner as it would be tried if it were tried before a jury, and the findings of the justice are entitled to the same respect as those of a jury. Therefore, where a case is tried before a justice, if the justice is bound to render just such a judgment as ought to be rendered upon the evidence, whatever his findings of fact might be, then, where a case is tried before a jury, the court would also be bound to render just such a judgment as ought to be rendered upon the evidence, whatever the findings of the jury might be. That is, the court would be bound to wholly ignore the findings of the jury, and to render the proper judgment upon the evidence. . The court could not grant a new trial in such a case, but would be bound to render a judgment, and to render just such a judgment as the evidence would warrant, whatever the findings of the jury might be. We cannot think that this is the law. It is our opinion that no court can wholly ignore the findings of fact, whether made by court, referee or jury. And no court can re-examine the evidence for the purpose of determining whether such findings are sustained by sufficient evidence, except for the purpose of granting a new trial. And therefore, if no new trial is asked for, no such re-examination can be had. If the re-examination of the evidence should be for the purpose of determining what the judgment should be, then the re-examination of the evidence would really be a re-trial of the case upon its merits. And where the case had been tried by a jury it would be an infringement by the court upon the province of the jury. We do not wish to be understood as deciding in this case that a new trial may be granted in a justice’s court on the ground that the findings of the court or jury are not sustained by sufficient evidence; and neither do we wish to be understood as deciding that a justice is bound to make special findings of fact when requested to do so by either' party. It may be that no new trial can be granted in a justice’s court for such a reason, and it may be that a justice is bound only to find generally for one or the other of the parties; and it may be that where such finding and the judgment are not sustained by sufficient evidence, the only remedy of the party aggrieved is by appeal. (See Taylor v. Rockwell, 10 Iowa, 530.) We certainly think he has no remedy by petition in. error, if he has not even asked that a new trial should be granted, or that special findings should be made; and this is all that we now decide. The judgment of the court below must be affirmed. All the Justices concurring.	[ -96, -26, -28, -98, 56, 66, 34, -40, 65, 1, -9, 115, 45, -53, 0, 127, -10, 47, 84, 106, -42, -73, 7, 65, -78, -46, -45, -43, -79, 124, -10, 124, 76, 48, -30, -43, 102, 74, -63, 86, -114, -121, -88, -19, -38, 96, 32, 50, 114, 79, -15, 30, -29, 46, 26, -61, 104, 40, 75, 61, 80, -8, -100, 7, 93, 20, -77, 39, -98, 71, 88, 38, -112, 49, 3, -24, 122, -90, -126, -11, 97, -71, 8, -26, 107, 1, 29, 111, -72, -55, 63, 94, 29, -89, -112, 24, 107, -115, -106, -67, 109, 48, -90, 122, -26, 85, 93, 124, 11, -113, -106, -69, -49, 48, -70, 91, -45, 3, 16, 113, -59, -24, 92, 65, 16, -37, -97, -106 ]
The opinion of the court was delivered by Bkewer, J.: The plaintiff in error filed its petition in the district court of Bourbon county against the defendant in error to enjoin the collection of a tax levied in the year 1870, against certain real estate of the plaintiff, and containing two causes of action. The first is to enjoin a tax, amounting to about $10,000, levied against that portion of the “Cherokee Neutral Lands” lying in Bourbon county, and to which the plaintiff acquired title by patent from the United States bearing date November 2d, 1870. The petition alleges, that, at the time of the levy of this tax, the plaintiff had neither the legal nor equitable title to these lands, but that they were in the U. S. government and the Cherokee tribe of Indians, and hence the lands were exempt from taxation.' The second cause of action is to enjoin the collection of a tax levied against certain lands granted by the U. S. government to the state of Kansas to aid in the construction of the railroad of the Kansas and Neosho Valley Railroad Company, (the former corporate name of the plaintiff,) by an act of congress approved July 25th, 1866, which grant had not been accepted by the state of Kansas at the time of the levy of said last-mentioned tax. The facts were agreed between the respective parties, and are contained in a written stipulation on file herein, which, by order of the court below, was made a part of the. record. The court below found for the defendant, and rendered judgment accordingly. The facts contained in the stipulation above referred to, and the exhibits thereto attached, relating to the first cause of action, are as follows: 1st, That the lands mentioned in the. first cause of action in the petition, are a part of the “ Cherokee Neutral Lands,” so-called, and the same mentioned in the first part of article 17 of the Treaty between the United States and the Cherokee Nation of Indians, proclaimed August 11, 1866. 2d, That, in pursuance of the provisions of article 17 of said Treaty, as amended by the United States Senate, and a supplemental article thereto, ratified June 6, 1868, James E. Joy, on the 8th of June, 1868, entered into a contract with the then Secretary of the Interior Department of the United States for the purchase of said “ Cherokee Neutral Lands; ” by the terms of which contract, Mr. Joy was to pay for the same to the Secretary of the Interior, as trustee for the Cherokee Nation of Indians, at the rate of one dollar per acre, as follows: Within ten days, the sum of' $75,000; $75,000 on the 30th days of August, 1868, 1869, and 1870, respectively; and $100,000 per annum thereafter, until the whole purchase-money should be paid. It was further agreed, in and by said contract, that the United States should cause said lands to be surveyed as public lands were usually surveyed, and, on the payment by Mr. Joy of $50,000, to set apart for him a quantity of said land in one body, in as compact form as practicable, extending directly across said lands from east to west, and containing a number of acres equal to the number of dollars thus paid, and from time to time to convey the same by patent to said Joy, whenever requested so to do, in such quantities, and by legal subdivisions, as said purchaser should indicate; and, on the payment of each additional installment, w.ith interest, as therein stipulated, to set apart for said purchaser an additional tract of land, in compact form, when the said purchaser might request, but extending directly across the neutral lands from east to west, containing a number of acres equal to the number of dollars of principal thus paid; and to convey the same to said purchaser, or his assigns; and so on from time to time until the whole should be paid; and no conveyance of any part of said lands to be made until the same should have been paid for as provided for in the said contract. 3d, That on or about the 1st of March, 1869, Mr. Joy assigned and conveyed to the plaintiff all his right, title and. interest, in and to said contract, and to the lands therein described. 4th, That prior to said 1st of March, 1869, Mr. Joy had paid to the Secretary of the Interior portions of the purchase-money for said lands, and had received from the United States patents for a corresponding number of acres of the same, set apart for him in pursuance of the provisions of said contract; but that no part of the said “Cherokee Neutral Lands” situate in Bourbon county was included in said patents. 5th, That on the 8th of August, 1870, the plaintiff, as such assignee of Mr. Joy, paid to the Secretary of the Interior, the sum of $437,478.50, the balance of the principal and interest then due and unpaid upon said contract, after deducting the payments so as aforesaid made by Mr. Joy; and, on the 2d of November, 1870, received from the United States a patent, conveying to said plaintiff the balance of said “Cherokee Neutral Lands,” not so as aforesaid patented to Mr. Joy, and including in said patent that portion of said lands situate in Bourbon county. 6th, That in September, 1870, there was levied and assessed against said lands in Bourbon county, and by the proper officers of said county, the tax mentioned in the first count of plaintiff’s petition, and that the same, with the statutory penalty of ten per cent., is in the hands of the defendant for collection. 7th, That the Cherokee Indians retained at the time of the levy of this tax, and still retain their tribal organization and national existence. It seems from this agreed statement that the only interest the plaintiff had in these lands, at the time of the levy and assessment of the tax, was derived from a contract of purchase upon which no portion of the purchase-money had been paid. For while the contract provided for the sale of the entire 800,000 acres, and some money had been paid thereon, yet it also provided for the conveyance of the land as rapidly as paid for, acres for dollars; and all the land paid for had been in fact conveyed by patent prior thereto. Of course, the government had no lien upon the lands patented for the purchase-money of those unpatented; and the plaintiff had no right to a conveyance of the latter until it had paid therefor the contract-price of a dollar per acre. There was therefore but a simple contract of purchase, upon which the purchaser had' paid nothing. The legal title was in the government, and while the plaintiff had an equitable interest in the land, it had not the full equitable title. If these lands had been public lands, beyond any question, under the recent decision of the supreme court of the United States in the case of the Kansas Pacific Rly. Co. v. Culp, (17 Wall.,) reversing the decision of this court, (9 Kas., 38,) they would not have been subject to taxation. In that case the court says: “While we recognize the doctrine heretofore laid down by this court, that lands sold by the United States may be taxed before they have parted with the legal title by issuing a patent, it is to be understood as applicable to cases where the right to the patent is complete, and the equitable title is fully vested in the party without anything more to be paid, or any act to be done going to the foundation of his right.” But these were not public lands. The government held the legal title, but held it in trust for the Cherokee Indians. These Indians still retained their tribal organization and national existence. As such their property was exempt from state taxation. In the case of The Kansas Indians, (5 Wall., 737,) the supreme court decided that “as long as the United States recognizes their national character they are under the protection of treaties and the laws of Congress, and their property is withdrawn from the operation of state laws.” The same doctrine was recognized in the subsequent case of The New York Indians, (5 Wall., 761.) These decisions were placed not simply or mainly on treaty stipulations, but upon the broad ground that these Indian nations were under the protection and care of the general government, were separate nations, and outside the jurisdiction of the states. Speaking of the Shawnees Mr. Justice Davis uses this language: “If the tribal organization of the Shawnees is preserved intact, and recognized by the political department of the government as existing, then they are a people distinct from others, capable of making treaties, separated from the jurisdiction of Kansas, and to be governed exclusively by the government of the Union.” So that whether these lands were the property of the United States, or the Cherokee Nation, they were alike exempt from taxation. But there remains a more difficult question. These lands were originally ceded to the Cherokees by the treaty of December 29th, 1835. (7 U. S. Stat., 478.) By that treaty it was stipulated that these lands should never be included within the limits or jurisdiction of any state or territory without the consent of said Indians. By the treaty of 1866 they were ceded by the Cherokees to the United States. (14th U. S. Stat., 799.) The 17th article of that treaty is, so far as it bears upon the question, as follows: “Art. 17. The Cherokee Nation hereby cedes, in trust, to the United States the tract of land in the state of Kansas, which was sold to the Cherokees by the United States under the provisions of the 2d article of the treaty of 1835, and also that strip of the land ceded to the nation by the 4th article of said treaty, which is included in the state of Kansas; and the Cherokees consent that said lands may be included in the limits and jurisdiction of said state.” Upon this, counsel for defendant in error contends that the Cherokees, who at the time of this tax were the sole beneficiaries of this trust, the owners of the full equitable interest, subject only to the plaintiff’s right of purchase, a nation not occupying these lands, but domiciled outside the territorial boundaries of the state, had consented that the lands should become a part of the state, and subject to all'its laws, including its revenue and tax laws. If the Indians consented, who could object ? The restraints of the organic act and the act of admission were abrogated by this stipulation, and thereafter the authority of the state was full and absolute over the lands. It cannot be denied that there is great force in this argument. But it must be borne in mind that it is settled law to construe Indian treaties liberally in favor of the Indians. As said by Mr. Justice Davis, “ Enlarged rules of construction are adopted in reference to Indian treaties.” And by Chief Justice Marshall, in 6 Peters, 582: “The language used in treaties with the Indians shall never be construed to their prejudice, if words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of their treaty.” Now the purpose of this cession might be defeated, and would certainly be hindered, if from the very date of the treaty, and before the government had effected any sale, the state could burden these lands with its taxes, and subject them to sale for nonpayment. No benefit would inure to the Cherokees- by making them subject to taxation prior to a sale. The lands would be less rather than more salable. And we cannot suppose they intended to insert a stipulation which would throw a burden upon their property, and for which they receive no consideration. It seems to us rather that they intended simply to do away with the prior stipulation of exclusion, leaving the lands, as other Indian lands to which such a stipulation of exclusion had never attached, under the protection of the general government until such time as the latter should effect a sale. From these considerations it follows that these lands were not subject to taxation for the year 1870, and the tax proceedings should be perpetually enjoined. II. In regard to the lands in question in the second cause of action, it is agreed in the statement of facts that they are a part of certain lands granted to the state of Kansas by a certain act of Congress approved July 25th, 1866; that the plaintiff in error had, at the time of the levy of the tax complained of, complied with all the conditions of said grant on its part to be performed; that the state of Kansas had not at the time of said levy accepted said grant, and never did accept the same until the 2d of March, 1871. Eeferring to the act of Congress, it appears from the first section that the grant of lands was to “ the state of Kansas for the use and benefit of said railroad company,” (the plaintiff herein.) By the third section it was provided that “when the governor of the state of Kansas shall certify that any section of ten consecutives miles of said road is completed in a good, substantial and workmanlike manner as a first-class railroad, then the said secretary of the interior shall issue to the said company patents for so many sections of the land within the limits above named as are co-terminous with the said completed section hereinbefore granted,” (and so for each successive section of ten miles:) “Provided, that if said road is not completed within ten years from» the date of the acceptance of the grant hereinbefore made, the lands remaining unpatented shall re vert to the United States; and provided further, that the said lands shall not in any manner be disposed of or incumbered by said company or its assigns, except as the same are patented under the provisions of this act.” Section seven requires that the acceptance of the company shall be in writing, and made within one year. These are all the provisions of the act that bear upon the question. It is agreed that no patent had been issued for these lands up to the time of commencing this action. Upon these facts counsel for plaintiff in error say — we quote from their brief: “We claim that, notwithstanding such compliance on the part of the plaintiff in error with all of the conditions of this grant, no such complete, equitable title to the lands in question had passed to it at the time of the levy of this tax, as to entitle it to a conveyance by the United States of the legal title, but that this equitable title, as well as the legal, still remained in the United States: First, Because there had been no acceptance of the grant by the state of Kansas. This grant was made directly to the state of Kansas, for the use of the plaintiff in ei’ror; thus constituting the state the trustee, and the railroad company the cestui que trust. Second, Because the United States, in prohibiting the railroad company from disposing of or incumbering these lands until the patent should be given it under the provisions of the grant, clearly and unmistakably show, that it was their intention that no interest whatever in these lands should pass to the railroad company until these patents had been executed, but that the entire equitable, as well as the legal title should remain in the United States.” It does not seem to us that either point is well taken. The case comes within the rule as laid down by Mr. Justice Miller in the case from 17th Wallace, just cited, “where the right* to the patent is complete, and the equitable title is fully vested in the party without anything more to be paid, or any act to be done going to the foundation of his right.” While the grant is in terms to the state for the use of the company, the act calls for no acceptance from the state, and provides for the issue of patents directly to the company, and specifies the conditions of the issue. Those conditions involve no action on the part of -the state, for while patents were to issue on the certificate of the governor, this was simply a provision on the part of the United States government to secure satisfactory evidence of the performance by the company of the conditions of the grant before a conveyance of the lands. The company had nothing more to pay, nothing more to do. It had complied with the conditions of the grant. Nothing remained, unless perhaps it were the evidence of such compliance. There was certainly nothing that went to the “foundation of its right.” Nor do we think the restriction on the company’s disposal of the land a restriction on the right of taxation. The government retained by it no interest in the land. The equitable interest of the company was in nowise limited. It was a naked restriction on the right to dispose or incumber. There is no reason for making it the basis of an exemption from taxation. We see no error in the ruling of the district court upon this point. The case having been tried upon an agreed statement of facts, it is the duty of this court to direct what judgment shall be entered by the district court. The case will be remanded, with instructions to enter a judgment in favor of the plaintiff in error, enjoining and restraining all proceedings to collect the taxes for the year 1870 on the lands described in the first cause of action set forth in the petition, and for costs of suit. The costs of this court will be divided. All the Justices concurring.	[ -10, -22, -80, 94, 42, -64, 104, -126, 75, -79, -75, 83, -55, 10, 16, 113, -13, 29, 81, 122, 102, -73, 23, -64, 82, -13, -47, -35, -80, 77, -26, -42, 76, -111, 74, -43, 102, -22, -59, -36, -50, -84, -119, -20, -48, 96, 60, 111, 82, 75, 113, -81, -13, 40, 29, -61, 105, 44, -37, 41, 19, -8, -118, -59, -19, 16, 17, 6, -102, 5, -56, 122, -110, 53, 8, -20, 123, 54, -122, -76, 5, -103, 9, -26, 103, 33, -35, -17, 44, -120, 14, 123, -115, -26, -74, 88, 99, 72, -98, -99, 124, 82, -123, 114, -30, 5, 29, 124, 23, -54, -106, -77, -113, 60, -112, 19, -5, 34, 48, 96, -57, -66, 92, 71, 58, -101, -97, -100 ]
The opinion of the court was delivered by Valentine, J.: This was an action of ejectment brought by the defendant in error against plaintiff in error to recover the possession of certain lands and tenements situate in Lyon county. The defendant below (plaintiff here,) answered, admitting his possession of the premises in question, and denying title of plaintiff. On the trial plaintiff offered in evidence a patent from the United States government to herself for the land in controversy, and rested. The defendant then to maintain the issues on his part offered in evidence a tax deed, of which the following is a copy: “Know all men by these presents, that whereas, the following described real property, viz., the northwest quarter of section No. nine, and the southwest quarter of section No. nine, all in township No. twenty, of range No. twelve, situated in the county of Lyon, and state of Kansas, was subject to taxation for the year 1862: And whereas, the taxes assessed upon said real property for the year aforesaid remained due and unpaid at the date of the sale hereinafter mentioned; and whereas, the treasurer of said county did, on the 6th day of May 1863, by virtue of authority in him vested by law, at adjourned sale of the sale begun and publicly hold on the first Tuesday of May 1863, expose to public sale, at the county-seat of said county, in substantial conformity with all the requisitions of the statute in such case made and provided, the real property above described for the payment of the taxes, interest, and costs then due and unpaid on said property; and whereas, at the place aforesaid, the treasurer of the county of Lyon and state of Kansas, having offered to pay the sum of nine dollars and ten cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property, for the N.W.J and S.W.J of section 9, township 20, range 12, which was the least quantity bid for; and payment of said sum having been by Lyon county made to the said treasurer, the said property was stricken off to said county at that price; and whereas, the said Lyon county did on the 4th day of August 1868, duly assign the certificate of the sale of the property as aforesaid, and all its right, title and interest to said property to H. B. Norton,-of the county of Lyon and state of Kansas; and whereas, the subsequent taxes of the years 1863 and 1864, amounting to the sum of twenty dollars and sixty-two cents, have been paid by the purchaser as provided by law; and whereas, two years have elapsed since the date of said sale, and the said property has not been redeemed therefrom, as provided by law: Now therefore, I, J. L. Williams, county clerk of the county aforesaid, for and in consideration of the sum of ninety-one dollars and sixty-seven cents, taxes, costs and interest due on said land for the years 1862, 1863, and 1864, to the treasurer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said H. B. Norton, his heirs and assigns, the real property last hereinbefore described, to have and to hold unto him the said H. B. Norton, his heirs and assigns forever, subject however to all the rights of redemption provided by law. In witness whereof I, J. L. Williams, county clerk as aforesaid, by virtue of the authority aforesaid, have hereunto subscribed my name, and affixed the official seal of said county on this 4th day of August, 1868. [seal.] J. L. Williams, County Clerk. Witness: O. Y. Hart. The execution of said deed was duly acknowledged and certified, and said deed was duly recorded. The plaintiff below objected to the introduction of this deed on the ground that the same was irrelevant, incompetent, and immaterial, and showed on its face that it was void, which objection was sustained, to which ruling of the court the defendant excepted. The defendant offering no further testimony the court then proceeded to render judgment for plaintiff. Defendant then moved for a new trial upon the ground of error occurring at the trial and excepted to by him, and that the decision was not sustained by sufficient evidence, (expressly waiving his right to demand a second trial under statutue,) which motion was overruled, to which ruling defendant excepted. The defendant in error (plaintiff below) now claims that the said tax deed is void for the following among other reasons : The deed shows upon its face that the land was not struck off to the county because it could not be sold to other bidders for the amount of the taxes, penalty and charges thereon, but that the county, through the county treasurer, entered the list as a competitive bidder, made the first bid on the land, offering itself to pay for the land the amount of the taxes, penalty and charges thereon, and thereby prevented others from making that bid, or indeed from making any bid as advantageous to themselves as that bid would have been, and thereby the county got the land. This claim seems to be true; and if true, it will invalidate the deed. The statute provides, that “ If any parcel of land cannot be sold for the amount of tax, penalty and charges thereon, it shall be bid off by the county treasurer for the county for such amount.” (Comp. Laws of 1862, p. 867, § 42; Laws of 1866, p. 277, §72; Gen. Stat., p. 1047, §88.) And this is the only law that authorizes county treasurers to bid off lands at tax sales for the county, and this law does not authorize the county treasurer to offer to pay anything for the land, and the county is not required to pay anything therefor when the land is so struck off to the county. The deed however recites in this case that “The treasurer of the county of Lyon, * * * having offered to pay” for said land said “amount of taxes, interest and costs then due and remaining unpaid on” said land, “and payment of said sum having been by Lyon county made to said treasurer, the said property was stricken off to said county at that price.” There is nothing in the deed nor in the evidence that shows or tends to show that the land could not have been sold to some other person for the same price, provided the treasurer had not made his said bid or offer. Hence we think that said sale, and the tax deed founded thereon, are both void. The statute does not authorize counties or county treasurers to enter the lists as competitive bidders; nor does the law authorize counties or county treasurers to bid at all at tax sales unless the land cannot be sold to other bidders for the amount of ■the taxes, penalty and costs then due thereon. Before a county or a county treasurer can bid at all the treasurer must wait until all others have failed or refused to bid on the land the required amount. This does not seem to have been done in the present case. A tax deed should follow the form given by statute only so far as it can do so truthfully, and where it cannot do so truthfully it should state the facts as they really exist. The form given by statute is for tax deeds for land sold at tax sales to individuals. And when this form is used for a tax deed for' land sold to a county, the form of the deed should-be so modified as to correspond with the law and the facts of the case. The judgment of the court below is affirmed. All the Justices concurring.	[ -16, 110, -80, 60, 44, -64, 98, -120, 66, -79, -73, 119, -55, -118, 0, 105, 98, 63, 85, 107, -60, -73, 23, 43, -110, -13, -39, -35, -79, 73, -12, -44, 76, 33, 74, 29, 70, 64, 5, 92, -50, 4, -119, -4, -38, 32, 52, 41, 50, 74, 117, 42, -13, 43, 31, -45, 105, 44, -53, 57, 1, -71, -90, -43, -33, 2, 49, 39, -106, 67, 72, -86, -112, 53, 72, -8, 123, -90, -122, 116, 5, -87, 40, 102, 111, 81, 29, -49, 120, -120, 14, -45, -99, -25, -112, 88, 107, 40, -106, -103, 125, -46, 7, 118, -17, -124, 93, 44, -115, -53, -74, -109, 79, 58, -110, 3, -5, -123, 48, 97, -57, 102, 92, 101, 56, -101, -113, -12 ]
Swinehart, J.: This is an appeal from a decision of the District Court of Shawnee County sustaining defendant’s motion for summary judgment in an action for damages. Plaintiff raises two issues: (1) whether the plaintiff may maintain a cause of action against the defendant as a third-party beneficiary of a contract between defendant and the United States Army Corps of Engineers, and (2) whether K.S.A. 46-901, the former governmental immunity statute, is constitutional. On June 22, 1975, the plaintiff Steven W. Young was camped with his family and friends in an area of Perry State Park directly adjacent to Lake Perry. This was the group’s first trip to the park. Perry State Park is administered by the defendant Kansas State Park & Resources Authority and is situated on land leased to the defendant by the United States Army Corps of Engineers. Plaintiff, his two brothers and their friends were swimming in the water in an area which had not been designated a swimming area. However, there were no signs posted so informing the campers. While plaintiff was swimming he would sometimes run a few feet and then dive into the water. On his last dive he struck an unidentified object beneath the water and sustained a broken neck. As a result of the injury, plaintiff has been a quadriplegic and is confined to a wheel chair. After the accident it was discovered that there were uncleared tree stumps in the lake where plaintiff had been swimming, and it was alleged that plaintiff struck one of those stumps when he dove into the water and was injured. The stumps were not visible on the day of the accident. The defendant allowed these stumps to remain on land above conservation pool level to prevent or retard shoreline erosion. Plaintiff filed suit against the defendant alleging negligence, breach of an express contract, breach of implied warranties, and breach of contract as a third-party beneficiary of the lease agreement between the defendant and the United States Army Corps of Engineers. The trial court sustained defendant’s motion for summary judgment on the grounds that the causes of action for negligence and breach of implied contract were barred by governmental immunity, K.S.A. 46-901, and that the plaintiff’s claims all sounded in tort, thereby precluding recovery under the contract theories. The plaintiff first asserts that he stated a cause of action as a third-party beneficiary of the lease agreement between the defendant and the Army Corps of Engineers. Two contentions are involved in this argument: (1) that the defendant breached a duty owed to the plaintiff under the terms of the lease agreement, and (2) that the plaintiff was an intended (donee) beneficiary under the contract. The trial court did not discuss the plaintiff’s status as a third-party beneficiary because it disposed of the question by finding that the Army Corps of Engineers and the Kansas State Park & Resources Authority had not “expressly contracted to bind themselves to any standard of care, and thus any such standard would have to be imposed by law,” in which case the action would sound in tort. Two United States Army Corps of Engineers regulations contained in the rules and regulations governing the public use of water resources and development of projects administered by the Corps and incorporated into the lease agreement between the defendant and the Corps are pertinent to plaintiff’s argument that the contract imposed a duty upon the defendant, which it breached. 36 C.F.R. § 327.1 (1975) provides: “It is the policy of the Secretary of the Army acting through the Chief of Engineers to provide the public with safe and healthful recreational opportunities within all water resource development projects administered by the Chief of Engineers.” This provision is a policy statement. It should be noted, however, that the regulation does indicate a concern for safety. Plaintiff primarily relies upon 36 C.F.R. § 327.5 (1975), however. It reads: “Swimming, snork[e]ling or scuba diving is permitted, except in those areas of the lake, reservoir or other body of water designated by the District Engineer and marked by the posting of appropriate signs.” The plaintiff contends that the defendant abrogated its duty to erect signs prohibiting swimming in violation of this section, and that this failure proximately caused plaintiff’s injuries. All parties agree that no signs prohibiting swimming were posted in the area where plaintiff was injured, despite the fact that the defendant had designated the place as a nonswimming area. Plaintiff complains that the trial court found this regulation to be merely permissive and not a requirement with which the defendant was bound to comply. The interpretation plaintiff places upon the trial court’s opinion is not strictly accurate, however. While the trial court observed that 36 C.F.R. § 327.5 (1975) constituted a statement of permitted activity, it was mainly concerned with whether the provision imposed an “enforceable duty to maintain” a “safe facility” in which case a standard of care could be gleaned from the document. The court concluded no duty was imposed by the regulation. Both parties as well as the trial court discuss Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976), in which the Supreme Court extensively discussed the question of whether or not a particular cause of action sounded in tort or in contract. Malone involved an action for damages sustained by a patient as a result of the alleged failure of the defendants to provide competent, necessary, complete and authorized medical treatment. The court stated: “A breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong independent of contract. Torts can, of course, be committed by parties to a contract. The question to be determined here is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement between the parties. “Physicians, as well as hospitals, may enter into express contracts by which they bind themselves to warrant the success of treatment, or to otherwise obligate themselves above and beyond their ordinary duties. Such contracts may form the basis for breach of contract actions. Noel v. Proud, 189 Kan. 6, 367 P.2d 61, is illustrative. The claim there was that the physician breached an express warranty, a special contract for a particular result. Such is not the situation here. “Certain duties and obligations are imposed upon physicians and hospitals by law. Breach of such duty by a physician is malpractice, and an action for damages for malpractice is one in tort, even though there was a contract, express or implied, for employment. Noel v. Proud, supra [186 Kan. 6], p. 11. Similarly an action for damages against a hospital for negligence, i.e., for breach of duties imposed by law, sounds in tort. This is true though there may be a contract between the parties. “In Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 509, 470 P.2d 797, we quoted the rule from 52 Am. Jur., Torts, § 26, p. 379: “ ‘Where a contractual relationship exists between persons and at the same time a duty is imposed by or arises out of the circumstances surrounding or attending the transaction, the breach of the duty is a tort. . . ” 220 Kan. at 374-375. The Supreme Court concluded that the plaintiff’s action in Malone was one in tort and thus applied the general rule that “a plaintiff will not be permitted to characterize a tort action as one in contract in order to avoid the bar of the statute of limitations or governmental immunity. [Citations omitted.]” 220 Kan. at 376. Malone is particularly instructive in this action. In Kansas, there is a duty imposed by law for operators of swimming areas, whether pools or lakes, to exercise reasonable care towards the users of those facilities. Operators are not required to insure the safety of the users. See Burgert v. Tietjens, 499 F.2d 1 (10th Cir. 1974), which cited Vukas v. Quivira Inc., 166 Kan. 439, 201 P.2d 685 (1949); Swan v. Riverside Bathing Beach Co., 132 Kan. 61, 294 Pac. 902 (1931). This duty is analogous to the reasonable care standard imposed upon physicians and hospitals discussed in Malone. The regulations in question (36 C.F.R. § 327.1 and § 327.5 [1975]) cannot be read to insure the safety of any person swimming in Lake Perry. Accordingly, the failure to erect a “no swimming” sign in the area where the plaintiff was injured, if a violation of duty at all, is a violation of duty imposed by law independent of the contract between the defendant and the Corps of Engineers, and even if plaintiff could be considered a third-party beneficiary, he has no cause of action under the contract theory. Plaintiff’s argument that, unlike Malone, he relied upon a specific contract provision establishing a standard of care not required by law, is not compelling. The duty owed may not be viewed merely as the posting of signs as plaintiff contends. Rather, the duty must be viewed in a broader sense — as one involving a standard of care — with the erection of a “no swimming” sign as one of many possible manifestations that defendant did or did not meet that standard. As mentioned, Kansas recognizes a reasonable standard of care imposed by law upon operators of swimming facilities. Therefore, we find that plaintiff’s action, if any, sounds in tort, and it is not necessary to further decide whether plaintiff was an intended third-party beneficiary. Plaintiff next urges this court to “reexamine the statutory provisions of K.S.A. 46-901 and the holding of Brown II [Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976)]” and conclude that the statute should be declared unconstitutional. The only argument presented by plaintiff that is different from those considered in Brown II is grounded upon passage of time, and the only new authority plaintiff cites that has not been reviewed before is the Kansas Tort Claims Act, K.S.A. 1980 Supp. 75-6101 et seq., which became effective on July 1, 1979. Plaintiff argues that this act provides some indication that the classification scheme, set forth in K.S.A. 46-901 and upheld in Brown II as rational, can no longer be sustained in light of the Tort Claims Act. Brown II cited three interests in support of the legislative classification: (1) the necessity of protecting the state treasury; (2) enabling state government to function without the threat of time and energy consuming legal actions that could inhibit administration of traditional state activities; and (3) providing protection demanded by administrative and high risk activities which were undertaken by various governments. 219 Kan. at 16-17. A quick examination of the Tort Claims Act immediately discloses that the legislature did not with a sweeping hand abrogate all immunity formerly afforded to state agencies under K.S.A. 46-901. While the act provides that governmental entities “shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of the state” (K.S.A. 1980 Supp. 75-6103), liability is subject to a host of exceptions set forth in K.S.A. 75-6104. Indeed, under the very facts presented in this case liability might not even be allowed under the Tort Claims Act due to the exception provided in K.S.A. 1980 Supp. 75-6104(n) which precludes liability for “any claim for injuries resulting from the use of any public property intended or permitted to be used as a park . . . for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.” In several cases decided since Brown II, our Supreme Court has reaffirmed the constitutionality of K.S.A. 46-901. See, e.g., Wilson v. Probst, 224 Kan. 459, 581 P.2d 380 (1978); Whitmire v. Jewell, 223 Kan. 67, 573 P.2d 573 (1977); Shriver v. Athletic Council of KSU, 222 Kan. 216, 564 P.2d 451 (1977). This court has also rejected such arguments in Rodack v. State Highway Comm’n, 2 Kan. App. 2d 535, 583 P.2d 1035 (1978), reversed on other grounds 225 Kan. 343, 591 P.2d 630 (1979); Prout v. Fort Hays Kansas State College, 1 Kan. App. 2d 309, 564 P.2d 558, rev. denied 225 Kan. 845 (1977). Since Brown II, however, the Supreme Court has also demonstrated that it is willing, when the particular factual circumstances of an action require it to do so, to reconsider its holding that K.S.A. 46-901 is constitutional. In Flax v. Kansas Turnpike Authority, 226 Kan. 1, 596 P.2d 446 (1979), the Supreme Court confronted a wrongful death claim brought by a plaintiff against the Kansas Turnpike Authority. The suit was based upon a one-car collision on the Turnpike and alleged defects in the Turnpike roadway proximately caused the fatal collision. The Supreme Court concluded that it had to determine whether K.S.A. 46-901, which was apparently valid on its face, could be unconstitutional and invalid with respect to the specific set of facts before it. The court observed that motorists who travel other state highways, county or township roads or city streets by statute have recourse where property damage, injuries or death occur as a result of the failure of the governmental entity to properly maintain highways, roads and streets. Yet, under K.S.A. 46-901 the same right was not afforded to motorists traveling the Kansas Turnpike. The court stated “the inconsistency in the application of the doctrine [governmental immunity], as now established by legislative action rather than judicial fiat, reaches the ultimate in its discrimination against one small segment of the motoring public . . . .” (226 Kan. at 7) and found it difficult to see why the Kansas Turnpike Authority should not be held responsible for wrongful deaths which occurred due to its negligence when other governmental entities maintaining roadways could be. “The ultimate effect of our series of statutes is to create a small class of motorists who are subjected to discrimination for no other reason than they happened to take the turnpike and as a result, are deprived of a remedy granted the motorist on every other road in Kansas. While a majority of the present members of this court would continue, in most situations, to uphold the constitutionality of K.S.A. 46-901, based upon Brown II and subsequent cases, it is obvious that the statute cannot be constitutional as applied to turnpike defects. . . . Such a classification is unconstitutionally discriminatory and therefore we hold K.S.A. 46-901 is constitutionally invalid to the extent that it attempts to grant the KTA immunity for damage suffered by any person who shall sustain damage by reason of any defect in the Kansas turnpike . . . .” 226 Kan. at 11. Plaintiff has failed to proffer a similarly compelling argument with respect to the facts of this case. Accordingly, this court, under the doctrine of stare decisis, must declare that K.S.A. 46-901 is constitutional, and therefore bars plaintiff’s action. Judgment affirmed.	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Meyer, J.: This case involves a workmen’s compensation appeal from the judgment of the district court affirming the order of the workmen’s compensation director in favor of the claimant-appellee. The deceased was employed by Air Capitol Escort Service in Wichita, Kansas, as a motorcycle escort rider. Appellant Broadway Mortuary (hereinafter appellant) had contracted with one of its customers for a funeral on November 5, 1976. In furtherance of that contract, appellant contracted with Air Capitol Escort Service to provide an escort for the funeral procession. Decedent was the rider dispatched by Air Capitol to be the escort. While escorting the funeral procession between the mortuary and the cemetery, decedent’s motorcycle fell and decedent was killed. At the time of decedent’s death, Air Capitol Escort Service did not have a payroll of sufficient size to bring it under the Kansas Workmen’s Compensation Act. Thus, a claim was made against appellant as the statutory employer of the decedent. Appellant, in the course of its business, offers various funeral services to the public. One of the services it offers its customers is a motorcycle escort for the funeral procession. If the family and mortuary agree that an escort is to be used, the family is billed for the service. The mortuary calls the funeral escort service to arrange for the escort. According to the testimony of Mr. Bill Cozine, president of Broadway Mortuary, the mortuary does not always utilize an escort service. It was the testimony of Mr. Cozine that funeral procession escort was not necessarily inherent in or an integral part of his mortuary service, and that the work being done by the decedent at the time of his accident would not ordinarily have been done by an employee of the mortuary. The workmen’s compensation administrative law judge had originally ruled that the claimant’s claim was not compensable because the escort service was not a part of the trade or business of appellant under the tests set out in Ellis v. Fairchild, 221 Kan. 702, 712, 562 P.2d 75 (1977), citing Woods v. Cessna Aircraft Co., 220 Kan. 479, Syl. ¶ 2, 553 P.2d 900 (1976). The workmen’s compensation director reversed the ruling of the administrative law judge, finding that whether said tests were met was not relevant in view of the fact that the escort service was contracted for by a third party. The workmen’s compensation director’s award was affirmed by the district court. The issue raised on appeal is whether the deceased was a statutory employee of appellant within the meaning of K.S.A. 1980 Supp. 44-503(a). K.S.A. 1980 Supp. 44-503(a) reads in part as follows: “Where any person (in this section referred to as a principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under the workmen’s compensation act which he would have been liable to pay if that workman had been immediately employed by him . . . .” (Emphasis added.) This statute provides that a principal will be liable to the employee of a subcontractor if the principal undertakes to do work which (1) is a part of the principal’s trade or business, or (2) the principal has contracted to do for a third party. The instant case falls within the second category. The workmen’s compensation director’s conclusion that it was irrelevant whether the work was a part of the principal’s trade or business was correct. Appellant had contracted with a customer to provide a motorcycle escort for the funeral procession. In order to perform this contract obligation, appellant could either have hired an employee to ride as escort, or it could subcontract the work to a local escort service. Appellant chose the latter course. The administrative law judge erred in his application of Ellis v. Fairchild, 221 Kan. 702. It was unnecessary for the director or the trial court to apply the test of Woods v. Cessna Aircraft Co., 220 Kan. 479, i.e., whether the escort service was an inherent part of appellant’s trade or business or if such was ordinarily done by employees of the principal. By contracting to provide an escort service for a third party, appellant made the work a part of its business. We note that the other cases cited by appellant did not involve situations where the principal contracted with a third party to perform a particular service, and are, therefore, distinguishable. Affirmed.	[ 48, 76, -16, -20, 25, -30, 2, 26, 83, -29, 55, 81, -55, -53, 21, 43, -14, 29, 81, 107, -9, -77, 71, 34, -45, -109, -7, -60, -12, 75, 102, -9, 109, 32, 10, -59, -26, 66, 4, 90, -52, 4, -103, -24, 89, 19, 48, 122, -42, 95, -47, -113, -101, 8, 27, -49, 110, 58, 121, -23, -45, -16, -21, 5, 126, 87, 34, 4, -104, 15, 88, 26, 16, 25, 48, -56, 80, -90, -60, -28, 39, -119, -120, 34, 102, 117, 21, -19, -12, 24, 6, -42, 31, -89, -98, 121, 58, 13, -106, 23, 89, 22, 6, 126, -38, 85, 31, -96, -117, -50, -10, -79, -57, 68, -98, -126, -17, -61, 34, 113, -104, -78, 94, 103, 118, -97, -41, -104 ]
Herd, J.: This is an action for partition of oil, gas and other minerals in place under a quarter section of land in Russell County. The trial court granted partition. This appeal followed. The facts are undisputed. Appellees own a total of 220/320ths of the mineral estate in fee and have the reversionary right to the other 100/320ths. Appellants own a total of 100/320ths of the minerals for a primary term of fifteen years from September 15, 1935, and so long thereafter as oil or gas is produced from the premises. Appellants’ term minerals were perpetuated by production of oil on the northeast ten acres of the quarter section. Appellees sought partition of only the non-producing 150 acres. The appellants asked that the other ten acres be included. The court ordered partition of the entire 160 acres. This appeal is from that order. The first issue on appeal is: Did the court err in granting partition where appellees, as tenants in common of oil, gas and mineral interests in land, own an undivided portion thereof in fee simple, together with all reversionary rights, and the appellants own term interests therein? Three different qualities of the mineral estate are involved here: 1) the appellees’ fee simple interests; 2) the appellants’ term interests, and 3) the appellees’ reversionary interests. Appellants contend partition of these three qualities of mineral estate is inequitable as a matter of law. Some background regarding the nature of partition will be helpful in understanding this issue. In Miller v. Miller, 222 Kan. 317, 320, 564 P.2d 524 (1977), the court stated: “Partition provides a method whereby two or more persons who own property together may put an end to the multiple ownership, so that each may own a separate portion of the property or, if a division in kind is not feasible, the property may be sold and each owner given an appropriate share of the proceeds. It is said to be a right much favored in the law because it secures peace, promotes industry and enterprise, and avoids compelling unwilling persons to use their property in common. 59 Am. Jur. 2d, Partition, sec. 3, p. 773. The right of partition is said to be an incident of common ownership. 68 C.J.S., Partition, sec. 21, p. 33.” The same general idea was earlier set forth in Holland v. Shaffer, 162 Kan. 474, 480, 178 P.2d 235 (1947): “Ordinarily ... a cotenant ... is entitled to partition, as a matter of right. The right of partition is considered an incident of common ownership. It is based on the equitable doctrine that it is better to have the control thereof in one person than in several who may entertain divergent views with respect to its proper control and management. The general rule therefore is that all property capable of being held in cotenancy is subject to partition by judicial proceedings, the partition being either in kind or by appraisal and sale.” Thus, partition proceedings contemplate an absolute severance of the individual interests of each joint owner and after partition each has the right to enjoy his estate without supervision, let, or hindrance from the other. 59 Am. Jur. 2d, Partition § 3, p. 773. Since an interest in oil and gas in place constitutes an interest in real estate, partition of a mineral estate is proper. What then of partition in a case such as this, where appellees own a part of the mineral estate in fee and have reversionary rights to the other part and the appellants own term interests in part of the mineral estate? Again it must be emphasized that the issue before the court is one of law and not fact. If it is at all possible to equitably partition such interests in a mineral estate this court must disregard the particular facts of this case and assume the trial judge will adapt the judgment to the facts. In a partition action the trial court, sitting as a court of equity, has the discretion to adapt its judgment to the particular circumstances presented and to prevent the remedy from becoming an instrument of fraud or oppression. See Shell Oil Company v. Seeligson, 231 F.2d 14, 17 (10th Cir. 1955); Holland v. Shaffer, 162 Kan. at 482; Ames v. Ames, 170 Kan. 227, 230, 225 P.2d 85 (1950); Stratmann v. Stratmann, 204 Kan. 658, 661, 465 P.2d 938 (1970). It is the cotenancy in the property that gives the right to compulsory partition. Thus there must be unity of possession and each tenant must have the right to occupy the whole with his cotenants. See Fry v. Dewees, 151 Kan. 488, 493, 99 P.2d 844 (1940). Because of this, a person will not be allowed to maintain partition proceedings unless he has an estate in possession. 59 Am. Jur. 2d, Partition § 31, pp. 793-94. Clearly appellees here have a possessory estate, the fee simple title to 220/320ths of the mineral interest. Appellees also have a non-possessory estate in the reversionary rights to the other 100/300ths, but the fact that appellees have an indefeasible estate in fee simple in one undivided share allows them to subject all interests in the estate to partition. See 2A Powell on Real Property ¶ 291, p. 547 (1977). Appellants are mainly concerned that the parties involved have different qualities of interest in the mineral estate. According to 59 Am. Jur. 2d, Partition § 31, p. 794: “It is not essential to the right to partition that the cotenants shall have estates that are equal. One may have a term, another an estate for life, and another an estate in fee. All that is necessary is that they shall be cotenants of what is proposed to be partitioned.” The same qualities of interests held by the parties to this action were involved in the Seeligson case. Although it did not deal with the precise issue involved here, the court found no impediment to partition in the fact that plaintiffs’ interest was a term mineral interest rather than a mineral interest in fee simple absolute. Similarly, there should, in theory, be no such impediment in the instant case since the “thereafter” clause in appellants’ term interests indicates appellants each own an interest in fee simple defeasible. See 2 Williams & Meyers, Oil and Gas Law § 506.7, p. 618 (1981). Appellants point to several Kansas cases for their proposition that mineral estate interests of the type involved here can never be subject to partition. Heaviest reliance is placed on Fry v. Dewees, 151 Kan. 488, Syl. ¶ 6: “Where owners of an entire estate convey to others for a limited term an interest in oil, gas and minerals in place, and in such as may be produced under oil and gas leases to which the conveyances are subject, and there has been exploration for and production of oil under such leases, the rights in and to production are inextricably bound up with the mineral rights, and one tenant in common may not compel partition of the mineral interests as a matter of right.” Appellants’ reliance on this case is misplaced. Fry involved two separate and distinct estates. There, the court denied partition because the title to the oil and gas in place as well as title to the lease and royalty interests were involved, the later interests being treated as personal property and not subject to partition. See Fry v. Dewees, 151 Kan. at 496. This was before the enactment of K.S.A. 60-1003, which allowed partition of royalty and lease interests. The court did not consider the difficulty of making a fair division of the oil and gas in place in the land as a reason for denying partition. See also Spikes v. Magnolia Petroleum Co., 158 Kan. 659, 149 P.2d 348 (1944); and Drake v. Drake, 153 Kan. 56, 109 P.2d 77 (1941). Strait v. Fuller, 184 Kan. 120, 334 P.2d 385 (1959), is mentioned by appellants. That case merely involved the pleading requirements in a partition action. Holland v. Shaffer, 162 Kan. 474, is also cited. Again, that case discusses pleading requirements in partition. It further reiterates the equitable powers of the trial court in such an action. The final issue is whether the trial court erred in including the leased ten acres in its order of partition. Fry v. Dewees is authority for the trial judge’s excluding the ten acres covered by the oil and gas lease in order of partition. The inclusion of the leased ten acres brings two separate and distinct estates into the suit — the mineral estate and the leasehold estate. The holding in Fry disallows this. The court’s concern in that case was the fact that rights in both real and personal property were involved and that the code of civil procedure did not control partition of personal property. See Fry at 496-97. Although interests in an oil and gas lease are still considered personal property, Reese Enterprises, Inc. v. Lawson, 220 Kan. 300, 310, 553 P.2d 885 (1976), subsequent developments arguably distinguish Fry v. Dewees. The Kansas Code of Civil Pro cedure now governs partition of oil and gas leases. K.S.A. 60-1003(a) states that the petition in such a partition action shall have the same requirements as a petition for partition of real estate. The purpose of this amendment, according to the court in Strait v. Fuller was to “make the rules pertaining to oil and gas interests as nearly similar to those pertaining to real property as possible.” 184 Kan. at 125. Thus, even though Fry v. Dewees has not been overruled, the basis for that decision has been removed. Personal and real property interests in oil and gas are now treated the same for the purposes of partition. As a matter of law, partition of the mineral estates under the unleased 150 acres was proper without question. Including the ten leased acres in the interests partitioned may have been error under the old Code of Civil Procedure and the rule in Fry v. Dewees. Now, however, for the purposes of partition, interests in an oil and gas lease are treated the same as interests in real property under the Code. K.S.A. 60-1003. Thus, there is no reason the ten leased acres should not be included in this action. Indeed, the appellants asked for the inclusion of these ten acres in the court order. 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Fromme, J.: Oak Park Investment Company brought this action to recover for breach of a commercial lease. Judgment declaring a breach was entered against Lundy’s, Inc., for unpaid rent and charges due under the lease. The commercial lease contained a provision authorizing recovery of attorney fees necessary to prosecute an action to recover damages in event of a breach of the lease by either party. The trial court found the reasonable amount of attorney fees incurred by plaintiff was $2,250.00, but denied recovery. Plaintiff Oak Park has appealed. Only one point is in issue: Is a provision in a commercial lease for the recovery of reasonable attorney fees in event of a breach valid and enforceable in Kansas? The commercial lease in the present case covered space in the Oak Park Shopping Center to be used for a restaurant business. The lease term was five years. The provisions contained in this all-inclusive lease cover 39 legal size pages plus attached exhibits. Section 21.04 of this lease, concerning recovery of legal expenses including attorney fees, provides: “(A) In case suit shall be brought because of the breach of any agreement or obligation contained in this Lease on the part of Tenant or Owner to be kept or performed, and a breach shall be established, the prevailing party shall be entitled to recover all expenses incurred therefor, including reasonable attorneys’ fees.” A statutory provision in the Kansas Residential Landlord and Tenant Act, K.S.A. 58-2547(a)(3), renders any provision in a residential lease, by which it is agreed to pay either party’s attorneys’ fees, unenforceable. If the present lease were a residential lease the provision under consideration would be unenforceable. We find no similar statutory provision covering commercial leases. The author of 17 Am. Jur. 2d, Contracts § 164, pp. 517-518 states: “Although there is considerable conflict as to the validity of a provision or stipulation in a contract, note, or other instrument, for attorneys’ fees or costs of collection or legal expenses, the rule in most jurisdictions, apart from any statutory provision to the contrary, is that such a provision or stipulation is valid; it is regarded as a reasonable provision for reimbursement or indemnity to the creditor against the expenses incident to a default on the part of the debtor, which is not against public policy if an unreasonable or oppressive sum is not specified. Some cases base the rule on the conceded right of parties to make their contracts in whatever form they please, provided they conform to the law of the land.” In the balance of this section it is pointed out a number of authorities hold otherwise. They reason that such a provision for attorney fees is invalid as against public policy in that it is oppressive and tends to promote litigation. It should be pointed out that in all jurisdictions the sum is limited to reasonable attorney fees and recovery in any case is limited to a reasonable amount only. However, a provision for recovery may be rendered void and unenforceable by statute. The statutory prohibitions generally come in the area of debt contracts such as notes, bills of exchange, bonds, or mortgages and the Uniform Consumer Credit Code. Under K.S.A. 58-2312 a stipulation in any note, bill of exchange, bond or mortgage for payment of attorney fees is unlawful and unenforceable. Under the Uniform Consumer Credit Code (UCCC) no agreement may provide for the payment by the consumer of attorneys’ fees. K.S.A. 16a-2-507. Any provision in violation of that section is rendered unenforceable. However, K.S.A. 16a-5-201(8) provides that the court shall award to the consumer the costs of the action and to his attorneys their reasonable fees in an action in which it is found that a creditor has violated any provision of sections 1 through 131 (16a-1-101 through 16a-9-102). In Kansas it has generally been stated that the prevailing parties in a lawsuit are not entitled to recover attorney fees unless attorney fees are specifically authorized by statute or agreement. See Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 873, 518 P.2d 410 (1974); Millers’ Nat. Ins. Co., Chicago, Ill. v. Wichita Flour M Co., 257 F.2d 93 (10th Cir. 1958); Farmers Casualty Company (Mutual) v. Green, 390 F.2d 188 (10th Cir. 1968). However, these cases are not strictly in point for although they set forth this rule they are not contract cases in which the contract contains such a provision. See also: Stover v. Johnnycake, 9 Kan. 367, 370 (1872). A judgment for attorney fees for services rendered in the same case is never allowed in an action on contract, unless stipulated for, or unless expressly authorized by statute. Shellabarger & Leidigh v. Thayer, 15 Kan. 619 (1875). An attorney’s fee is not taxable on the foreclosure of any lien unless in pursuance of a contract therefor. Zimmerman v. McMurphy, 111 Kan. 654, 657, 208 Pac. 642 (1922). Attorney’s fees incident to a litigation are in a few instances authorized to be assessed, but unless such expenses are a matter of contract or there is express statutory authority for assessing them, they are not recoverable. We find one Kansas case which does allow an attorney fee based on a provision in the contract, which contract was the basis for the suit. It is Wheat Growers Ass’n v. Rowan, 125 Kan. 657, 266 Pac. 104 (1928). The contract between the parties provided if the association brings an action for breach the grower agrees to pay costs of the action and reasonable attorney fees, to be included in any judgment. It was held proper to recover attorney fees under the contract provision, and the case was remanded with instructions to enter judgment for amounts due including attorney fees. An informative law review article can be found in Vol. 18 Washburn Law Journal, p. 535 (1979). It is titled Recovery of Attorney Fees in Kansas. At page 543 the author discusses when a contract for attorney fees is enforceable. In appendix A at the end of the article, the author collected ninety (90) Kansas statutes, each of which refer in some way to recovery of attorney fees. Six of these statutes either restrict or prohibit agreements for recovery of attorney fees. None of these six relates to commercial leases. No statutory prohibition against such a provision in a com mercial lease has been called to our attention and we have been unable to find such a statute. We cannot hold a provision for recovery of attorney fees is against the public policy of this State. The legislature has permitted recovery of attorney fees in many cases. It has not prohibited such a provision in commercial leases. The provision for recovery of attorney fees in the present lease does not appear to be oppressive or unreasonable. It applies equally to both parties to the lease. We do not believe such a provision will promote litigation. It merely assists a nondefaulting party to recoup a fair and just amount of damages and expenses which may result from a breach by the other party. A commercial lease, such as the present one, is generally negotiated by parties of more or less equal bargaining power. A provision for attorney fees in a commercial lease is readily distinguishable from a similar provision in a residential lease. Such a provision in a residential lease is rendered unenforceable by statute. K.S.A. 58-2547(a)(3). Therefore, we hold an agreement included in a commercial lease for recovery of reasonable attorney fees is valid and enforceable in Kansas, in the absence of any statutory prohibition against such a provision. In view of the finding of the district court as to the amount of a reasonable attorney fee in this case, we reverse the order denying an attorney fee, and remand the case to the district court with directions to enter judgment in an additional amount of $2,250.00 to cover reasonable attorney fees in prosecuting the action.	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McFarland, J.: This is an action arising from the termination of a partnership agreement, the partnership business being the practice of public accountancy. Plaintiff Larry A. Wright was the terminating partner and brought this action against the remaining partners, defendants C. Robert Belt and Richard D. Locke, to recover monies claimed due him under the agreement. Defendants filed a counterclaim seeking damages for plaintiff’s alleged violations of the restrictive covenant contained in the agreement, as well as an injunction prohibiting future violations. The parties agree summary judgment was correctly entered in favor of plaintiff on his claim in the amount of $64,711.65. Plaintiff appeals from; (1) The summary judgment entered in favor of defendants, which held plaintiff had violated the restrictive covenant in the contract and allowed substantial damages to be offset from plaintiff’s judgment; (2) the injunction issued against him which severely restricts his present practice by additional limitations and extends the effective period of the restrictive covenant. The keystone issue is the propriety of the trial court’s determination that plaintiff was in violation of the agreement’s restrictive covenant. Plaintiff’s deposition was taken prior to entry of summary judgment. In said deposition plaintiff sets forth in meticulous detail how he has practiced accountancy since termination of the partnership. The parties agree such narration shall constitute the factual basis from which the determination should be made relative to whether the plaintiff violated the restrictive covenant. Of necessity, the facts must be set forth in considerable detail. From April 3, 1972, to December 31, 1978, plaintiff and defendants operated a firm of certified public accountants pursuant to a written partnership agreement, under the name of C. Robert Belt & Company, in Coffeyville, Montgomery County, Kansas. The contract provided that any partner could terminate his interest in the partnership at anytime upon giving written notice of intent to terminate at least three full calendar months in advance. In addition to being paid his share of accumulated profits at the time of termination, the capital interest of the terminating partner was to be purchased by the partnership pursuant to the following formula: “The purchase price of any such 5% interest owned by the terminating partner for a period of more than 5 years prior to termination shall be 5% of an amount equal to the gross income of the partnership for the full calendar year previous to the year in which notice of termination has been given.” The restrictive covenant at issue herein provides: “In the event of termination hereunder and the continuation of the business by the remaining partner or partners, the terminating partner agrees not to engage in the practice of public accountancy in Montgomery County, Kansas, for a period of 3 years from the date of such termination. ” (Emphasis added.) Plaintiff gave timely notice of his intent to terminate his interest in the partnership effective December 31, 1978. At that time he owned a 20% interest in the partnership. After plaintiff gave his notice of termination, and prior to December 31, 1978, the parties held conferences at the firm concerning plaintiff’s doing work for partnership clients after he left the firm. He was requested not to do so by defendants. He was also asked to advise firm clients, in writing, of his covenant not to compete in Montgomery County. Plaintiff did not agree to either request. On January 1, 1979, plaintiff established his own office in Neodesha, situated in Wilson County, Kansas. Neodesha is located just north of the Wilson-Montgomery County line, and is approximately 13 miles from Independence and 28 miles from Coffeyville, the two major Montgomery County cities. Plaintiff also had done accounting work in Chautauqua County, immediately west of Montgomery County. Later than the opening of the Neodesha office, but sometime prior to trial, plaintiff opened an office in South Coffeyville, Oklahoma, which is just across the state line to the south of Coffeyville. South Coffeyville and Coffeyville share a common telephone directory, including the Yellow Pages section. Plaintiff’s South Coffeyville public accounting office is advertised therein. Plaintiff’s home at all relevant times has been in Coffeyville, where he resides with his wife and children and he commutes daily to Neodesha or other business locations. Some of plaintiff’s clients live, work or have businesses in Montgomery County. Plaintiff does accounting and/or tax work for about 200 clients, approximately 50% to 60% of whom are former clients of the partnership. Material from his Montgomery County clients is (1) brought to Neodesha by the client, (2) mailed to Neodesha by the client, or (3) delivered to plaintiff’s home. Plaintiff does the pencil-and-paper work on them in Neodesha, then either brings the finished work product back to Coffeyville for redelivery to the client or mails the work to the client from Neodesha. Phone calls to and from clients both within and without Montgomery County are made and received at his Neodesha office 80% to 90% of the time. The other 10% to 20% are received at or made from his home in Coffeyville. Some of the work plaintiff does for his clients requires the use of a computer. As plaintiff no longer has access to the partnership’s computer, he takes the work to B & R Computer Service in Coffeyville, then picks up the work product when it is completed. He uses the computer service work product in completing the final work product in Neodesha. He pays B & R for this service. Mike Loy, a Pittsburg accountant, had a contract with the Montgomery County Commissioners to assist in budget preparation. Loy and plaintiff had an arrangement whereby plaintiff did some of the budget work in his Neodesha office. Plaintiff had previously turned down the offer to work for the county commissioners and had recommended Loy’s employment. Plaintiff is employed as treasurer of U.S.D. 445 in Montgomery County at a salary of $275.00 per month. The previous treasurer was a local banker. Initially, defendants contended that the serving as treasurer of the school district constituted the practice of public accounting, but they have wisely backed away from this position. Plaintiff does not challenge the validity of the restrictive covenant. Rather, he contends he has fully complied therewith. Accordingly, we are not concerned with the reasonableness of the covenant which is the usual battleground in such controversies. See 41 A.L.R.2d 15, 43 A.L.R.2d 94, 45 A.L.R.2d 77, and 46 A.L.R.2d 119. The trial court considered these facts and concluded: “Plaintiff is and has been engaged in the practice of public accountancy in Montgomery County, Kansas, in contravention of the noncompete provisions of Paragraph 12 of the Partnership Agreement, as a matter of law. The breach of this covenant not to compete began on January 1, 1979, and continues to this day.” We do not agree. The partnership business was the performance of personal professional services. In this regard the clause in question is more akin to a restrictive covenant between employer and employee than to a noncompetition covenant included in a contract for the sale of a retail business. A covenant not to compete contained in a contract of employment is to be strictly construed against the employer. Eastern Distributing Co., Inc. v. Flynn, 222 Kan. 666, Syl. ¶ 3, 567 P.2d 1371 (1977). See also H & R Block, Inc. v. Lovelace, 208 Kan. 538, 544, 493 P.2d 205 (1972). The remaining partners are asserting the restrictive covenant herein and the same should be strictly construed against them. The undisputed evidence is that at no time since the partnership termination has the plaintiff (1) maintained an office for the practice of public accountancy in Montgomery County, or (2) held himself out to the public as practicing public accountancy in Montgomery County. The only restriction placed upon plaintiff was that he not “engage in the practice of public accountancy in Montgomery County, Kansas, for a period of 3 years from the date of such termination.” Taking work home from the office cannot be a violation of the clause. For illustration, the fact that a Jackson County, Missouri, attorney might bring a file to his Johnson County, Kansas, home for some evening study does not mean the attorney is engaged in the practice of law in Kansas. We conclude the uncontroverted evidence fails to show any violation of said restrictive covenant when the clause is given strict construction in favor of plaintiff. If the former partners had desired to place additional restrictions upon terminating partners they could have so provided in their agreement — so long as public policy was not violated. This they did not do, but they have apparently rectified this omission in a subsequent agreement not involved herein. Having determined the trial court erred in concluding that plaintiff has breached the restrictive covenant herein, other issues raised need not be determined. We note the following portion of the judgment designated as B [2]: “Defendants are given credit against the judgment entered in favor of plaintiff for the cash surrender value of the life insurance policy carried by defendants on plaintiff’s life as of January 1, 1979, plus all premiums paid by defendants on said policy to keep the same in force from January 1, 1979, to the date of this decree.” No complaint is made on appeal of this insurance offset, and accordingly the same is not disturbed by the opinion herein. The judgment entered in favor of defendants on their counterclaim is reversed and remanded with directions to enter judgment for plaintiff on defendants’ claims for damages arising from the alleged contract breach, except for the insurance offset, and to dissolve the injunction.	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Abbott, J.: This is an appeal by the condemnee, Butler Rural Electric Cooperative Association, Inc., (Rural Electric) from a judgment awarding it damages of $2,058 from the condemnor, Whitewater River Watershed Joint District No. 22 (Watershed District). Rural Electric contends it is entitled to the full cost of an adequate line to replace the one affected by the taking. The dispositive facts are basically undisputed. The Watershed District adopted a plan for the construction of watershed structures in the district, including site No. 18 which is the subject matter of this appeal. The dam at site No. 18 will cause some permanent impoundment of water and from time to time will flood the base of fifteen poles used in the Rural Electric distribution system. The electric distribution line involved serves between 70 and 75 rural electric consumers who live in the southeast portion of Harvey County and the northwest portion of Butler County, Kansas. The electric distribution line runs east-west along a section line north of the dam, then turns north and runs north along that section line. Six poles along one section line and nine poles in the other area will be affected. Watershed District commenced condemnation proceedings against Rural Electric, seeking the right to temporarily flood and submerge the base of the power poles in question and to take Rural Electric’s right to install poles in the permanent impoundment which lies below 1379.9-foot elevation. Appraisers were appointed and, based on what the parties recognize as obviously erroneous instructions that are not in issue on appeal, awarded damages to Rural Electric of $6,000. Watershed District appealed the award and the case was tried to the district court. Evidence was presented as to the elevation of the poles, the frequency and depth of flooding, the various solutions available and their costs. The case was tried on the basis that the line could remain in its same location by replacing fifteen poles with longer and larger ones, or it could be rebuilt in a different location. The existing wires will be used if the line is raised, but the fifteen existing poles must be replaced. The cost of rebuilding the line in a different location would cost nearly three times more than it would cost to raise the height of the existing line. The appraisers and trial court all found that it would be more economical to raise the existing line and awarded damages on that basis. Rural Electric argues that that was error and it should be awarded the cost of rebuilding the line around the impoundment area. Rural Electric also maintains the trial court erred in computing damages for the cost of raising the line. The basic figures used by both parties’ witnesses originated with Rural Electric’s expert witness, Emmett Green, who is an electrical engineer with Allgeier, Martin & Associates, Inc. Green computed what it would cost to remove the fifteen existing poles and replace them with longer and stronger poles, including the addition of some new hardware not now being used on the shorter poles. Green’s report estimated the cost of replacement at $5,742, plus engineering fees and overhead of $1,148, for a total of $6,890. He testified at trial that those figures would need to be increased by five percent to compensate for inflation between the date of the report and the date of taking. Two of the three appraisers testified that they used Emmett Green’s figures in arriving at their award of $6,000. Watershed District’s only witness as to the amount of damages was Lloyd W. Shank, a retired director of utilities and chief engineer for the Kansas Corporation Commission. Shank testified rather extensively concerning accounting principles involved, and at various places in his testimony stated what he considered to be the proper legal method of awarding damages in order to avoid non-betterment. Shank computed Rural Electric’s damages by accepting Green’s figures as to the cost of removing and replacing poles. To avoid non-betterment, he proposed that the difference between the current cost to install the existing poles and the cost to install larger and longer poles, plus the cost of removing the existing poles, be awarded to Rural Electric as its damages. He made no allowance for crossbars, groundwires and miscellaneous items totaling $1,694 included in Green’s figures (and his) on the theory those items were improvements to the existing line. Nor did he make any comment on the five percent increase for inflation that Green testified would be necessary to bring the figures current as of the date of taking. As we view Shank’s testimony, it appears he accepted Green’s figures, expressed his opinion as to how damages should be computed and arrived at a figure of $2,058. The trial judge in effect awarded damages for only the top portion of the poles. Each pole to be replaced is 35 feet in length, and the trial judge deducted the installed unit price of $120 from the installation cost of a taller and larger pole. Rural Electric is thus forced to pay $120 for each new pole to be installed. Admittedly, it will have the 35-foot poles that are removed; however, the record contains no evidence of the salvage value, if any, of a used pole. Other equipment apparently necessitated by the longer and larger poles is forced upon Rural Electric without compensation. We first dispose of Rural Electric’s argument that merely raising the line in an area subject to infrequent flooding over various periods of time is not an adequate substitute. Rural Electric makes a persuasive argument as to why the line should be relocated. The fact remains, however, that Rural Electric’s own expert witness testified that raising the line is feasible and permissible under existing codes and Kansas Corporation Commission rules and regulations, and he himself proposed it as a viable alternative to relocating the line. The trial court found for Watershed District on this issue, and substantial and competent evidence exists to support that finding. As we view Watershed District’s argument, it advocates the use of the depreciated replacement method modified by the non-betterment cost rule espoused by Mr. Shank, which appears to be an accounting method and not a reasonable method of awarding damages. Rural Electric opts for yet another alternative—the substitute facilities approach. This method of determining compensation was defined in City of Wichita v. Unified School District No. 259, 201 Kan. 110, Syl. ¶¶ 3-8, 439 P.2d 162 (1968): “Where property already devoted to public use by one agency of government is taken, through condemnation proceedings, by a different governmental agency, the compensation due the former is such an amount as will provide equivalent necessary replacements for the property so taken.” “The rule requiring compensation in sufficient amount to provide needed equivalent replacements is applicable to buildings and land alike.” “In computing the replacement value of public buildings taken in condemnation proceedings, factors of depreciation and functional obsolescence are not to be considered.” “The cost of adequate substitutes necessary to replace public facilities taken in condemnation proceedings may be more or less than the value of the property taken.” “Substitute facilities need not actually duplicate those which have been taken, provided they are of equivalent utility, and where no replacement is required to restore a public agency to its prior state of efficiency in discharging its public functions, no more than nominal damages need be awarded.” “The true test of the adequacy of substitute facilities provided to replace public property taken in eminent domain proceedings is whether they restore the over-all capacity of the system to the same state of readiness and utility as it possessed prior to the taking.” The purpose of the cost of substitute facilities doctrine is to ensure that sufficient damages will be awarded to finance a replacement for the condemned public facility; as a result, depreciation is not deducted from the award or the public would be deprived of its right to be made whole. Note, Cost of Substitute Facilities, Duke L.J. 1133 (1975). A panel of this court recently had occasion to scrutinize the circumstances under which the substitute facilities method can be applied. In Urban Renewal Agency of Wichita v. Gospel Mission Church, 4 Kan. App. 2d 101, 603 P.2d 209 (1979), rev. denied 227 Kan. 928 (1980), it was stated at pages 104-06: “In its excellent brief filed with this court, the Church leans heavily on the case of City of Wichita v. Unified School District No. 259, 201 Kan. 110, 439 P.2d 162 (1968), and argues that our Supreme Court recognized and tacitly approved application of the substitute facilities doctrine to the taking of property held by a nonprofit charitable organization organized for public purposes when market data is not obtainable. In that case the court applied the substitute facilities method of compensation when public school property was taken to make way for an interstate highway. It was there held that, when property already devoted to public use by one agency of government is taken through condemnation proceedings by a different agency of government, the compensation due is such an amount as will provide equivalent necessary replacement for the property taken, and that factors of depreciation and functional obsolescence are not to be considered. The court made it clear, however, that the substitute facilities method is not another approach in determining value of property as a measure of compensation in condemnation proceedings. “ ‘The cost of adequate substitutes necessary to replace public facilities taken in condemnation proceedings may be more or less than the value of the property taken.’ Syl. ¶ 6. “The rationale for departing from value as the measure of compensation in the case of a public condemnee was stated as follows: “ ‘The status of a school district deprived by condemnation of its property differs radically from that of a private condemnee. A school district exists to further the educational process, and when its school property has been condemned, it may not take its money and liquidate its operations. The district remains charged with the same public duty of providing educational facilities for its children as it had before its 'property was taken. And the cost of constructing substitute facilities is equally great whether those condemned were new or ancient.’ 201 Kan. at 116. Substitute facilities need not duplicate those which have been taken, provided they are of equivalent utility, and where no replacement is required to restore a public agency to its prior state of efficiency in discharging its public functions, no more than nominal damages need be awarded. Syl. ¶ 7. “. . . A nonprofit organization may be distinguished from a business enterprise, since commercial property can be valued by the capitalized income approach. But there is no reason to treat a nonprofit public oriented organization differently from private homeowners or other non-commercial property owners who neither derive earnings from their property nor hold it for investment. Just compensation does not mandate a government subsidy for nonprofit organizations nor does a nonprofit status require rejection of the market value standard. (3) The substitute facilities approach applied to public condemnees is based on the condemnee’s legal or factual obligation to replace the facilities. It does not apply to a private condemnee which is ‘free to allocate its resources to serve its own institutional objectives, which may or may not correspond with community needs.’ [United States v. 564.54 Acres of Land] 441 U.S. at 515. Awarding replacement cost on the theory that the condemnee would continue to operate for a public purpose as before the taking would provide a windfall if substitute facilities were never acquired or, if acquired, were later sold or converted to another use. (4) The fact that the facilities might have benefited the community is not relevant in assessing the compensation due a private condemnee. A private entity does not hold its property as the public’s trustee and is not entitled to be indemnified for the public’s loss. “The fact that 564.54 Acres of Land is concerned with market value as opposed to value determined under the depreciated replacement cost approach does not serve to distinguish the reasoning. As has been noted, market data is but one approach recognized in Kansas to determine value, and value at the time of taking is the measure of compensation mandated by our statutes for the taking of private property. As has also been noted, the substitute facilities method of compensation is not a method of determining value and its application to public condemnees is based on the unique character and the use being made of public property. We hold the substitute facilities method of determining compensation in eminent domain proceedings to be applicable only in such proceedings against a public entity and it was error to apply that method in this case.” (Emphasis supplied.) Should the substitute facilities rule apply in the present case? The answer to this question hinges on whether Rural Electric can be considered a public entity within the meaning of the cases. At first glance, it appears Rural Electric is not a public entity, although unquestionably it possesses the right of eminent domain. See K.S.A. 1980 Supp. 17-4604(j). It is not a government agency per se, nor is it supported by tax revenues. The fact that an electric co-op is by statute a nonprofit corporation (K.S.A. 17-4602) does not of itself entitle it to the application of the substitute facilities doctrine. United States v. 564.54 Acres of Land, 441 U.S. 506, 514-15, 60 L.Ed.2d 435, 99 S.Ct. 1854 (1979); Urban Renewal Agency of Wichita v. Gospel Mission Church, 4 Kan. App. 2d at 106. See also Annot., 40 A.L.R.3d 143, § 1[a] n. 3. The Supreme Court of Kansas recently indicated that a water district is a public entity. In Dedeke v. Rural Water Dist. No. 5, 229 Kan. 242, 249, 623 P.2d 1324 (1981), the court stated: “Under Kansas law, a rural water district is a creature of statute (K.S.A. 82a-612 et seq.). It is incorporated as a quasi-municipal corporation by declaration of the board of the commissioners of the county in which the water district is located (K.S.A. 82a-616). The powers of a rural water district are prescribed by statute (K.S.A. 1980 Supp. 82a-619). It has been granted the power of eminent domain. In law and in fact, a rural water district exercises the powers of a public utility. It is subject to state regulation and control. The owner of a benefit unit certificate issued by a rural water district is the owner of a property interest protected by the requirements of due process.” A water district is organized and incorporated by a board of county commissioners (K.S.A. 82a-612 et seq.), whereas an electric co-op is formed by its patrons. That is the only significant difference enumerated in Dedeke between a water district and an electric co-op existing pursuant to K.S.A. 17-4601 et seq. We might be justified in extending the doctrine in City of Wichita v. Unified School District No. 259, 201 Kan. 110, to rural electric co-ops such as Rural Electric. We do not believe that to be necessary, however, as an in-depth analysis of the reason behind the rule set forth in City of Wichita leads to the same result. In Urban Renewal Agency of Wichita v. Gospel Mission Church, 4 Kan. App. 2d at 106, it was stated: “The substitute facilities approach applied to public condemnees is based on the condemnee’s legal or factual obligation to replace the facilities. It does not apply to a private condemnee which is ‘free to allocate its resources to serve its own institutional objectives, which may or may not correspond with community needs.’ [United States v. 564.54 Acres of Land] 441 U.S. at 515. Awarding replacement cost on the theory that the condemnee would continue to operate for a public purpose as before the taking would provide a windfall if substitute facilities were never acquired or, if acquired, were later sold or converted to another use.” See City of Wichita v. Unified School District No. 259, 201 Kan. at 116. The church in Urban Renewal had no requirement beyond good intentions to construct a comparable facility. 4 Kan. App. 2d at 105. Here, however, Rural Electric has a statutory duty to replace the “taken” poles. K.S.A. 17-4630 (now 1980 Supp.) stated: “Cooperatives doing business in this state pursuant to this act shall be subject to the jurisdiction and control of the corporation commission of this state as pro vided in chapter 66, General Statutes of Kansas of 1935 as amended as applying to electric utilities, except as to issuance of securities.” K.S.A. 66-1,173 states in pertinent part: “Every retail electric supplier shall have the exclusive right and responsibility to furnish retail electric service to all electric consuming facilities located within its certified territory, and shall not furnish, make available, render or extend its retail electric service to a consumer for use in electric consuming facilities located within the certified territory of another retail electric supplier . . . .” K.S.A. 1980 Supp. 17-4604(d) states in relevant part: “[T]o generate, manufacture, purchase, acquire, accumulate and transmit electric energy, and to distribute, sell, supply, and dispose of electric energy to its members, and to governmental agencies, political subdivisions, and to other persons, who are not receiving central station service from facilities of existing public utilities . . . .” Since Rural Electric has a statutory responsibility to maintain electric service to the people within its territory, and the parties agree that the loss of the fifteen poles would cut off the electric power to 70 to 75 homes, the cost of providing substitute facilities necessary to replace those that have been taken (undiminished by depreciation but less the salvage value of any equipment not reasonably reusable) should have been awarded, and the trial court erred in failing to do so. We believe such a holding to be in line with the rationale announced in City of Wichita and Urban Renewal, but not mandated by them. Each eminent domain case involving property, when the usual means of ascertaining market value are lacking, must to some extent be decided on its own peculiar set of facts so that the owner of the property taken is not required to make any pecuniary sacrifices. Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 779, 332 P.2d 539 (1958). The non-betterment cost method adopted by the trial court in valuing the condemned poles was inappropriate since a condemnee is ordinarily entitled to receive compensation that would put it in as good a position pecuniarily as if its property had not been taken. City of Wichita v. Unified School District No. 259, 201 Kan. at 116-17. Furthermore, research indicates no authority by either the legislature or the Kansas Corporation Commission to support this type of valuation in a condemnation proceeding. We disagree with Watershed District’s contention that the substitute facilities method was not raised at trial, as Rural Electric specifically directed the trial court’s attention to City of Wichita. On retrial, the trial court should make a specific finding as to the necessity for engineering expenses to raise the line; and if engineering expenses are necessary, such sum as Rural Electric reasonably incurs in raising the line should be awarded. This case should not be construed as one to require the payment for new substitute facilities in every case. For example, if in this case the same equipment could be reused and all that would be necessary is to move the line, then the damages would be the cost of moving the line plus any incidental damages. Reversed and remanded with directions to grant a new trial on the issue of the cost of substitute facilities, less salvage value of the shorter poles that are replaced and any other equipment not reasonably reusable in raising the line.	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Foth, C.J.: The question presented in this case is whether a counterclaim may be asserted in a proceeding instituted under the Uniform Enforcement of Foreign Judgments Act, K.S.A. 60-3001 et seq. The trial court held it could not and we affirm. The judgment creditor is Carolyn Artz Landon, a resident of Colorado. The debtor is her former husband, Harold Artz, a resident of Phillips County, Kansas. The judgment is a divorce decree rendered in Arizona on September 21, 1973. In that decree a divorce was granted to Harold Artz on his counterclaim; Carolyn was awarded custody of “the parties’ minor child,” then two years old, subject to Harold’s visitation rights; Harold was ordered to pay $75 per month child support. On June 26, 1979, this proceeding was commenced by the filing of a certified copy of the Arizona decree with the Clerk of the District Court of Phillips County, along with an affidavit of mailing of notice to the debtor. On October 22, 1979, a “Motion for Revivor of Judgment” was filed, along with an authenticated copy of the decree. A summons was issued and served on Harold the same day. Although it is not in the record before us, it was apparently in the customary form requiring the defendant to answer and also to state any counterclaim related to plaintiff’s claim. In due course Harold filed a responsive pleading. In his answer he defended on the grounds that the Arizona judgment was dormant when filed here and could not be revived here, and also that it had been procured by fraud. He also included a counterclaim for fraud, praying for return of the $3,725 in child support previously paid plus general and punitive damages. The fraud alleged was Carolyn’s representation that the child was his, when subsequent blood tests taken in connection with a proceeding under the Uniform Reciprocal Enforcement of Support Act demonstrated that he could not have been the father. Carolyn moved to dismiss the counterclaim. That motion was heard together with the motion to revive the judgment. The trial court ruled first that the Arizona judgment was dormant and could only be revived in Arizona. It therefore said it “refuses at this time to recognize” the Arizona judgment. No appeal was taken from this order. The court went on to strike Harold’s counterclaim for two reasons: First, it was “not a permissible pleading to a notice of Foreign Judgment” because “[t]his is not a proceeding commenced under Article 2 of Chapter 60 [of the] Kansas Statutes Annotated.” Second, “venue is not properly in Phillips County as any acts complained of by Harold Artz occurred outside of Kansas and in either Colorado or Arizona.” Harold appeals from the dismissal of his counterclaim. Defendant offers no authority from this or any other jurisdiction in support of his right to maintain a counterclaim. The act has received little treatment by the Kansas courts, although we have said it provides an alternative remedy to a suit on the foreign judgment, and is subject to the same statute of limitations as such a suit. Alexander Construction Co. v. Weaver, 3 Kan. App. 2d 298, 300-01, 594 P.2d 248 (1979). The act itself contains nothing to suggest that it contemplates a counterclaim. “A copy of any foreign judgment authenticated in accordance with the act of congress or the statutes of this state may be filed in the office of the clerk of any district court of this state. Such copy must be filed by an attorney licensed to practice law in the state of Kansas. The clerk of the district court shall treat the foreign judgment in the same manner as a judgment of the district court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings as a judgment of a district court of this state and may be enforced or satisfied in like manner." K.S.A. 60-3002. Emphasis added. The thrust of the emphasized language is to treat a foreign judgment once properly filed exactly like a Kansas judgment. To our knowledge it has never been thought that a counterclaim could be asserted in response to proceedings to enforce a Kansas judgment through execution, garnishment, or the like. Defenses may be asserted, and relief may be sought in an appropriate case by motion under K.S.A. 60-260(b). After final judgment, however, it is too late to assert a claim for affirmative relief arising out of the transaction underlying the judgment. The few cases we find under the uniform act all reach the same conclusion. In Purser v. Corpus Christi State Nat’l Bk., 256 Ark. 452, 508 S.W. 2d549 (1974) the plaintiff obtained a judgment in Texas and registered the judgment in Arkansas. The defendant answered and filed a counterclaim and setoff for compensatory damages for conversion of business assets along with other actual and punitive damages. The court first noted its statute (the 1948 version of the uniform act) which allowed any “defense, setoff or counterclaim” to be asserted but reasoned the provision did no more than allow the obligor to raise any defense or counterclaim which he could have raised in opposition to an ordinary action to enforce a foreign judgment in the forum. Noting the general rule that registration may not be impeached by collateral attack except for lack of jurisdiction or fraud in the procurement, the court held this counterclaim could not be maintained. In response to the defendant’s contention Arkansas’s mandatory counterclaim statute required an opposite result, the court stated: “In this case appellant is asserting the counterclaim and setoff, not as a defense to the original cause of action, but in a proceeding brought to enforce a judgment rendered in the original suit. We find this distinction to be significant. The purpose of the compulsory counterclaim statute was to settle all issues between the parties in one and the same lawsuit, thereby avoiding multiplicity of actions. Martin v. Romes, 249 Ark. 927, 462 S.W.2d 460. However, the statute applies only to a cause of action which the defendant could maintain as an independent suit. Coats v. Milner, 134 Ark. 311, 203 S.W. 701. “The cause of action on which this counterclaim and set off was founded arose from allegedly tortious conduct of the appellee in Texas. The facts do not indicate any connection whatsoever with Arkansas until the time of the attempted registration of the judgment. The acts in Texas were not of such a nature that the defendant could maintain a separate cause of action in the Arkansas courts. To apply the compulsory counterclaim statute to these facts would be subversive of the salutary intent of the Uniform Act to provide for a prompt summary procedure to register such judgments without furthering the purposes of the counterclaim statute to prevent piecemeal, multiplicitous litigation in Arkansas courts. It might well pose constitutional questions under the full faith and credit clause of the United States Constitution. Furthermore, the compulsory counterclaim statute was passed in 1935, so the Ark. Stat. § 29-808 would supersede it, insofar as foreign judgment registration procedures are concerned, if there is any conflict.” 256 Ark. at 460-1. Thompson v. Safeway Enterprises, Inc., 67 Ill. App. 3d 914, 24 Ill. Dec. 561, 385 N.E.2d 702 (1979), involved a contract action ending in judgment for the plaintiff who then attempted to register the decree in Illinois. The defendant counterclaimed alleging tortious interference with contract and breach of contract by the plaintiff. The defendant argued he could assert the counterclaim under the same 1948 section of the act relied on in Purser. The court dismissed the counterclaim, expressly rejecting the idea that normal rules of civil procedure pertaining to counterclaims applied to a “counterclaim” under the uniform act, partly because the regular Civil Practice Act specifically did not apply to “proceedings in which the procedure is regulated by separate statutes.” 67 Ill. App. 3d at 917. The court went on to adopt the holding in Purser that the obligor may not collaterally attack absent fraud. In Concannon v. Hampton, 584 P.2d 218 (Okla. 1978), the plaintiff procured a judgment in Missouri and filed it under the uniform act in Oklahoma. The defendant raised a number of defenses and counterclaimed for fraud in the original proceeding. In rejecting the obligor’s arguments the court recited the history of the uniform act and the reasoning of the commissioners who drafted it. The court said: “Defendant’s final contention pertains to the trial court’s refusal to allow him to prosecute his counterclaim. Defendant claims he instructed his attorney to file a counterclaim for fraud in the Missouri action. This the attorney failed to do. The above cited § 721 of the act provides that a foreign judgment is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of a district court of Oklahoma. Defendant argues this is authority for his presenting his counterclaim for fraud in the Oklahoma action for enforcement of the Missouri judgment, even though he could have pursued it in Missouri but did not do so. “There are two versions of the uniform act, the 1948 and the 1964. Oklahoma adopted the 1964 act. The 1948 act provided an alternative to adopting states in the provision reference defenses. Section 8 of the uniform 1948 act reads in pertinent part: ‘Any defense [set-off] [counterclaim] [or cross-complaint] which under the law of this state may be asserted by the defendant in an action on the foreign judgment may be presented by appropriate pleadings and the issues raised thereby shall be tried and determined as in other civil actions.’ One jurisdiction adopting this act but not adopting any of the bracketed terms addressed the problem of counterclaims in Gem Manufacturing Corporation v. Lents Industries, Inc., 276 Or. 87, 554 P.2d 166 (1976). That court held Oregon Legislature’s omission of the optional terms was sufficient evidence of its intent to preclude the assertion of counterclaims in such a proceeding. Defendant submits this decision is not persuasive in that Oklahoma did not adopt the 1948 uniform act. We do not agree. We did not adopt the 1948 act, thus we did not adopt the bracketed material potentially allowing counterclaims to be asserted in the proceeding. Draftsmen of the uniform 1964 act as well as the 1948 act were primarily concerned with preserving a defendant’s right to assert defenses as to the validity of the foreign judgment, to insure that the judgment was entitled to full faith and credit. The 1948 act was designed to shorten the time consuming procedure of enforcement of foreign judgments by providing a summary procedure. Because the method under this act still was not as simplified as in federal courts, the 1964 act was born, simplifying further the enforcement of foreign judgments. It is evident this section does not contemplate allowing a defendant, in an action against him to enforce a foreign judgment, to pursue a counterclaim neither pleaded nor considered in the other state’s forum. Trial court correctly denied defendant’s counterclaim. “Absent any question of jurisdiction over the defendant or the subject matter, full faith and credit must be accorded the judgment of a sister state and forum court may not rehear the case upon its merits, as it is res judicata concerning plaintiff’s claim and all defenses raised or which could have been presented. ” 584 P.2d at 221-22. Emphasis in the original. Kansas adopted the 1964 version of the uniform act in which the commissioners had eliminated all reference to counterclaims, optional or otherwise. We therefore hold that a counterclaim may not be asserted in a proceeding to enforce a foreign judgment registered under the Uniform Enforcement of Foreign Judgments Act, K.S.A. 60-3001 et seq. Affirmed.	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Foth, C.J.: Plaintiff sued the City of Roeland Park for flood damage to its business sustained in September, 1975, by reason of a claimed nuisance maintained by the city on its adjoining property. The case was submitted to a jury on a theory of comparative negligence or comparative fault. The jury fixed plaintiff’s damages at $30,607.03, allocating the fault 30% to plaintiff, 50% to defendant city, and 20% to unknown third parties. The city appeals from the judgment entered on the verdict raising two primary issues: that the evidence did not support a finding of nuisance, and that the doctrine of comparative fault should not have been applied. It also complains of certain evidence admitted which it claims violated a protective order entered on its motion in limine. I. EVIDENCE OF NUISANCE Our Supreme Court restated the long-standing definition of nuisance in Vickridge Homeowners Ass’n, Inc. v. Catholic Diocese of Wichita, 212 Kan. 348, 354, 510 P.2d 1296 (1973), observing: “The question of what constitutes a nuisance has been considered in many decisions of this court. Most recently in the case of Culwell v. Abbott Construction Co., 211 Kan. 359, 506 P.2d 1191, it was held: ‘A nuisance is an annoyance, and any use of property by one which gives offense to or endangers the life or health, violates the laws of decency, unreasonably pollutes the air with foul, noxious odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of the property of another may be said to be a nuisance. ‘A private nuisance is a tort related to an unlawful interference with a person’s use or enjoyment of his land. The concept of a private nuisance does not exist apart from the interest of a landowner.’ (Syl. ¶¶ 1, 2.) “The subject has also been considered in depth and many decisions discussed in the recent cases of Baldwin v. City of Overland Park, 205 Kan. 1, 468 P.2d 168; Delight Wholesale Co. v. City of Overland Park, 203 Kan. 99, 453 P.2d 82; and Caywood v. Board of County Commissioners, 200 Kan. 134, 434 P.2d 780.” The court in Vickridge also quoted a passage from Hofstetter v. Myers, Inc., 170 Kan. 564, 228 P.2d 522 (1951), which defined nuisance this way: “While the word nuisance is perhaps incapable of precise definition, yet in general it is held to be something which interferes with the rights of citizens, whether in person, property, or enjoyment of property, or comfort. It has also been held to mean an annoyance, and, in its broadest sense, that which annoys or causes trouble or vexation, that which is offensive or noxious, or anything that works hurt, inconvenience or damage. (See 66 C.J.S., Nuisances, § 1, p. 727). What may or may not constitute a nuisance in a particular case depends upon many things, such as the type of neighborhood, the nature of the thing or wrong complained of, its proximity to those alleging injury or damage, its frequency or continuity, and the nature and extent of the injury, damage or annoyance resulting. Each case must of necessity depend upon its own particular facts and circumstances.” 170 Kan. at 568. The sufficiency of plaintiff’s evidence was raised by motion for a directed verdict. We therefore examine the evidence to determine whether there was evidence the city used its property in such a way as to obstruct the reasonable use of plaintiff’s property. In so doing, we take the evidence in the light most favorable to plaintiff as the party against whom the motion was aimed. Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 5, 564 P.2d 508 (1977). Plaintiff’s property was utilized as, among other things, an automobile salvage yard. In connection with its business it commenced in 1964 to improve the premises by erecting an office building and a 40-foot by 120-foot parts storage building. Because the land was low, plaintiff faced potential flooding from surface water and therefore elevated the base of its improvements and installed surface drainage controls consisting of culverts and earthen dikes or berms. In addition, it constructed over a period of years an underground drainage system or storm sewer which was the source of its problems in this case. The sewer consisted of a network of concrete pipe with surface inlets to collect surface water, covered by steel grates. At the north end the system drained into Turkey Creek. At the south end was an open (i.e., grateless) inlet, inadvertently placed several feet over the line between plaintiff’s property and the city’s. This inadvertent trespass was remedied while this action was pending; in our view it does not affect the issues before us. It was admitted by plaintiff that the pipe sections of which the sewer was constructed were all factory seconds. Its evidence also showed, however, that the defects were minor and did not affect the system’s capacity to function. It also appeared that the higher end of the system, consisted of 30-inch diameter pipe which drained into 18-inch pipe in the lower part. This constriction would not impede the flow of anticipated water, but would be a natural catch point for any debris entering the system. The defendant city owned the high land adjacent to plaintiff’s on the south. Part of this land is a city park, but the portion immediately touching plaintiff’s is unimproved and overhangs a ravine separating the two properties. Plaintiff’s evidence was that the city used this portion of its property as an open dump for the deposit of assorted discarded street and traffic control signs, refrigerators, stoves, automobile parts, tires, brush, and other miscellaneous debris. Plaintiff’s employees’ testimony, although contradicted, was that the dumping was by city trucks as well as unidentified individuals. The mayor of the defendant city had inspected the premises and was aware of the condition. Plaintiff’s employees regularly patrolled that part of the city’s property near the open sewer system inlet to remove debris which might wash into and clog it. Nevertheless, after a heavy rain the night of September 11, 1975, plaintiff’s employees found debris (which they identified as coming from the city’s property) had washed down the hill, through the ravine and into the sewer system. The system clogged and burst, and surface water which would otherwise have drained through the now clogged system overran the berms and flooded plaintiff’s warehouse. The damages sought and awarded were for cleanup and for destruction of and damage to plaintiff’s inventory. To constitute a nuisance, the interference with plaintiff’s use of its property must be both substantial and unreasonable. Prosser, Law of Torts § 87, p. 580 (4th ed. 1971). In this case there can be little doubt the flooding of the plaintiff’s distribution center constituted a substantial interference with its use of its land. See Vickridge, 212 Kan. at 351 (surrounding homeowners complained that proposed inadequate drainage facilities jeopardized their homes); Morris v. City of Kansas City, 189 Kan. 52, 366 P.2d 788 (1961) (a flooded basement); Davis v. City of Kansas City, 204 Kan. 524, 464 P.2d 154 (1970) (improper drainage); Scott v. Glenwood Township, 105 Kan. 603, 185 Pac. 731 (1919) (damages from a culvert overflowing). In denying its dump was a nuisance, the city relies heavily on the factors mentioned in Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208 (1917). They are restated in substance in Sly v. Board of Education, 213 Kan. 415, Syl. ¶ 1, 516 P.2d 895 (1973): “What may or may not constitute a nuisance in a particular case depends upon many things, such as the type of neighborhood, the nature of the thing or wrong complained of, its proximity to those alleging injury or damage, its frequency, continuity or duration, and the damage or annoyance resulting. Each case of necessity must depend upon the particular facts and circumstances.” Of the elements listed, only the type of neighborhood weighs in favor of the city. The wrong complained of is having debris from a dump washed onto neighboring property; the dump was immediately adjacent to the injured party; it had continued over a considerable period of time and its potential for harm was apparent; and the damage was substantial. In our opinion the reasonableness of the city’s use of its land was a fact question, and the trial court did not err in submitting that question to the jury. On the issue of causation, the evidence also sustained the jury’s findings that half the damage was attributable to the city’s action in maintaining the dump, twenty percent to dumping by unidentified third parties, and thirty percent to design defects and other inadequacies in plaintiff’s drainage system. II. COMPARATIVE FAULT The city’s second argument is that the court erred in submitting the case to the jury on a comparative fault theory. It did so, complete with an instruction defining negligence and with advice as to the effect of the jury’s answers to special questions on percentage of fault. We are met at the outset with plaintiff’s assertion that the point was not properly preserved in the trial court. The transcript reveals an extensive discussion of the instructions before the case went to the jury, with each side registering its objections one by one on the record. The only objection by the city to the comparative fault instruction went to that part of the instruction which advised the jury of the effect of its answers. (See Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, Syl. ¶ 2, 582 P.2d 271 [1978], holding such advice proper.) Without an objection in the record, we might well be justified in refusing to consider the point. See Roitz v. Brooks, 5 Kan. App. 2d 534, 619 P.2d 1169 (1980). However, the city asserts that it made its basic objection known during one of several off-the-record conferences. It finds some support for this contention in the trial court’s comments in overruling the motion for a new trial, quoted below, where the court observed that the instruction had been given over the objection of both parties. The court in Roitz specifically noted the absence of any remarks on the record by the trial judge indicating an off-the-record conference took place in which the issue on appeal was raised. On this point, we distinguish Roitz. However unsatisfactory a silent record may be as a method of preserving points on appeal, in view of the importance of the issue and the ambiguity of the record, we give the city the benefit of the doubt and proceed to the merits. The trial court’s comments in ruling on the city’s motion for a new trial explain its reasoning: “I will further add, . . . while the Court notes that both counsel for the plaintiff and counsel for the defendant objected to the Court’s ruling as to what instructions the Court was going to give, the Court feels that while the prior case law of Kansas shows that nuisance and negligence were separate, that negligence had no place in a nuisance action, that the Court felt that this case was really one of first impression to the Court, for the reason that all those prior decisions have been based when we were talking about a theory of contributory negligence, when we were talking about negligence actions, after July 1st, 1974, Kansas adopted in the place of contributory negligence the theory of comparative fault. I think that comparative fault, even though we speak of the term negligence within that theory of comparative fault, that that basically did away with the necessity ... of separating nuisance actions from negligence actions. For that reason the Court feels that under comparative fault that a Court can submit it to the jury when the facts are such as they were in this case to decide on the basis of comparative fault.” Disagreeing, on appeal the city insists “nuisance and negligence are separate, and . . . negligence has no place in a nuisance action.” While that may be true in some cases, in many nuisance cases, including this one, negligence plays an important role. As noted under Part I above, an action in nuisance is grounded on an unreasonable interference with the plaintiff’s use and enjoyment of his property irrespective of the care exercised to avoid the intrusion. Kansas cases have always recognized the dichotomy between the liability derived from conditions amounting to a nuisance and liability derived from ordinary lack of due care, commonly called negligence. E.g., Asmann v. Masters, 151 Kan. 281, 98 P.2d 419 (1940), 44 A.L.R.2d 1386; Gilbert v. Construction Co., 110 Kan. 298, 203 Pac. 1113 (1922); Helms v. Oil Co., 102 Kan. 164; Bailey v. Kelly, 93 Kan. 723, 145 Pac. 556 (1915). While such cases emphasize an action for nuisance need not depend upon proof of negligence, and rightfully so, later opinions recognize the two concepts overlap and that nuisance and negligence often coexist. Alexander v. City of Arkansas City, 193 Kan. 575, 396 P.2d 311 (1964), was a suit alleging the city created a nuisance by operating a sewage plant near plaintiff’s home. There our Supreme Court agreed with the plaintiff’s basic contention on appeal that liability could not be avoided by a showing the defendant was free from negligence, but went on to recognize that negligent conduct may frequently give rise to a nuisance. It approved principles now appearing in 58 Am. Jur. 2d, Nuisances § 35, pp. 599-600: “A nuisance may or may not be based on the negligent act of the one creating it. However, it frequently is the consequence of negligence, or the same acts or omissions which constitute negligence may give rise to a nuisance. In fact, it has been said that in many, if not in most, instances the existence of a nuisance presupposes negligence. Unless a nuisance is based on action that is intentional and unreasonable, if an act or condition can become a nuisance only by reason of the negligent manner in which it is performed or permitted, a right of recovery cannot be shown independently of the existence of negligence. “A lawful action may become a nuisance by reason of its negligent performance. Thus, there are certain situations in which what was lawful may be turned into a nuisance by negligence in maintenance, and in which the danger, being a continuing one, is often characterized as a nuisance, although dependent upon negligence, as in the case of a highway out of repair. Also, negligent use may make a structure a nuisance which would not be a nuisance otherwise. “Where the acts or omissions constituting negligence are the identical acts which it is asserted gave rise to a cause of action for nuisance, the rules applicable to negligence will be applied.” (Emphasis added.) See also Carlson v. Development Co., 103 Kan. 464, 173 Pac. 910 (1918) (gas pipeline running along road may be a nuisance without proof of negligence, but negligence helped create it). Most recently, in Culwell v. Abbott Construction Co., 211 Kan. 359, 506 P.2d 1191 (1973), Justice Prager points out: “Nuisance is a field of tort liability rather than a type of tortious conduct. Nuisance has reference to the interests invaded, to the damage or harm inflicted, and not to any particular kind of act or omission which has led to the invasion. Professor Prosser concludes that the attempt frequently made to distinguish between nuisance and negligence, for example, is based entirely upon a mistaken emphasis based upon what the defendant has done rather than the result which has followed, and forgets completely the well-established fact that negligence is merely one type of conduct which may give rise to a nuisance. (Prosser, Law of Torts, 4th Ed., § 87, p. 573.) In other words a nuisance may result from conduct which is intentional or negligent or conduct which falls within the principle of strict liability without fault. The point is that nuisance is a result and negligence is a cause and they cannot be distinguished otherwise.” 211 Kan. at 364. Prosser’s analysis, approved in Culwell, identifies the three sources of tort liability encompassed by the term nuisance: “Today liability for nuisance may rest upon (1) an intentional invasion of the plaintiff’s interests, or (2) a negligent one, or (3) conduct which is abnormal and out of place in its surroundings, and so falls fairly within the principle of strict liability. With very rare exceptions, there is no liability unless the case can be fitted into one of these familiar categories.” (Numerals inserted.) Prosser, Law of Torts § 87, p. 574 (4th Ed. 1971). In this case, we are not concerned with the third type of nuisance — an abnormally dangerous activity invoking the doctrine of strict liability. The nuisance complained of in this case flows from either “intentional” or “negligent” conduct. Prosser expounds on those two concepts: “Any of the three types of conduct may result in liability for a private nuisance. By far the greater number of such nuisances are intentional. Occasionally they proceed from a malicious desire to do harm for its own sake; but more often they are intentional merely in the sense that the defendant has created or continued the condition causing the nuisance with full knowledge that the harm to the plaintiff’s interests is substantially certain to follow. Thus a defendant who continues to spray chemicals into the air after he is notified that they are blown onto the plaintiff’s land is to be regarded as intending that result, and the same is true when he knows that he is contaminating the plaintiff’s water supply with his slag refuse, or that blown sand from the land he is improving is ruining the paint on the plaintiff’s house. If there is no reasonable justification for such conduct, it is tortious and subjects him to liability. “But a nuisance may also result from conduct which is merely negligent, where there is no intent to interfere in any way with the plaintiff, but merely a failure to take precautions against a risk apparent to a reasonable man. The defendant may, for example, carry on some entirely proper activity, such as burying dead animals, firing his furnace, or constructing a water main in the street, without reasonable care against the stench or smoke or flow of water which may follow. In particular, negligence is the usual basis of liability where the defendant is doing something authorized by the legislature, or, without knowledge that anything is wrong, he has merely failed to inspect and repair his premises, or he has only failed to discover or to repair or abate a condition which he has not created, but which is under his control.” (Emphasis added.) Prosser, Law of Torts § 87, pp. 574-75 (4th ed. 1971). Looking first at what might be termed “negligent nuisance,” we find the majority rule stated in 58 Am. Jur. 2d, Nuisances § 221, p. 825. After surveying the cases, the authors conclude: “Most courts hold that where a nuisance has its origin in negligence, as distinguished from an absolute nuisance, contributory negligence is a defense . . . .” See also Copart Inds. v. Con. Ed., 41 N.Y.2d 564, 394 N.Y.S.2d 169, 362 N.E.2d 968 (1977); City of Houston v. Henderson, 506 S.W.2d 731 (Tex. Civ. App. 1974); Rothfuss v. Hamilton Masonic Temple Co., 34 Ohio St. 2d 176, 297 N.E.2d 105 (1973); Kostyal v. Cass, 163 Conn. 92, 302 A.2d 121 (1972); 66 C.J.S., Nuisances § 11 b. See generally Seavey, Nuisance: Contributory Negligence and Other Mysteries, 65 Harv. L. Rev. 984 (1952). Under the scheme of comparative negligence adopted in Kansas, contributory negligence, once a complete defense, is now subjected to comparative fault principles. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). As noted in Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), in any situation where contributory negligence would have been a defense in the absence of the statute, comparative negligence now applies. 227 Kan. at 845. See also Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), and cases discussed at p. 452. Thus, to the extent the city’s nuisance arose from its negligence, the plaintiff’s conduct which contributed to its injuries should be compared to the city’s lack of care. That is the result reached elsewhere in negligent nuisance cases under comparative negligence. Nelson v. Hansen, 10 Wis. 2d 107, 102 N.W.2d 251 (1960); Schiro v. Oriental Realty Co., 272 Wis. 537, 76 N.W.2d 355 (1956), appeal after remand 7 Wis. 2d 556, 97 N.W.2d 385 (1959); Floyd v. City of Albany, 105 Ga. App. 31, 123 S.E.2d 446 (1961). Judge Woods in commentary confirms this result: “In those jurisdictions that recognize negligence as a basis for some forms of nuisance, comparative negligence will doubtlessly apply to diminish the plaintiff’s claim in a proper case.” Woods, Comparative Fault § 11.3, p. 206 (1978). See also Schwartz, Comparative Negligence § 11.3, pp. 190-91 (1974). We therefore hold that it was proper for the trial court to instruct the jury to compare the relative causal responsibility for plaintiff’s damages, at least to the extent they arose from the city’s negligence in the creation of the nuisance. A more difficult question arises if the city’s dump may be classified as an “intentional” nuisance rather than merely the result of the city’s lack of care. Under the authorities cited above, contributory negligence is no defense to an intentional nuisance. See also 58 Am. Jur. 2d, Nuisances § 11; Timmons v. Reed, 569 P.2d 112 (Wyo. 1977); Furrer v. Talent Irrigation District, 258 Or. 494, 466 P.2d 605 (1970); Denny v. Garavaglia, 333 Mich. 317, 52 N.W.2d 521 (1952); Restatement (Second) of Torts § 840R, pp. 170-71; 58 Am. Jur. 2d, Nuisances § 221. The matter is complicated by the tendency of courts to lump under the generic term “absolute” nuisance both truly “intentional” nuisances and those where the defendant’s culpability falls short of being “intentional.” We must then determine whether the city’s conduct here deserves the “intentional” label. We begin with the position taken by the Restatement (Second) of Torts § 825, p. 117: “An invasion of another’s interest in the use and enjoyment of land or an interference with the public right, is intentional if the actor (a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct.” (Emphasis added.) Comment: c, p. 118, elaborates on the definition: “c. Meaning of ‘intentional invasion.’ To be ‘intentional,’ an invasion of another’s interest in the use and enjoyment of land, or of the public right, need not be inspired by malice or ill will on the actor’s part toward the other. An invasion so inspired is intentional, but so is an invasion that the actor knowingly causes in the pursuit of a laudable enterprise without any desire to cause harm. It is the knowledge that the actor has at the time he acts or fails to act that determines whether the invasion resulting from his conduct is intentional or unintentional. It is not enough to make an invasion intentional that the actor realizes or should realize that his conduct involves a serious risk or likelihood of causing the invasion. He must either act for the purpose of causing it or know that it is resulting or.is substantially certain to result from his conduct.” {Emphasis added.) Dean Prosser, in discussing “absolute” nuisances where the defendant’s intent is only to create a condition carrying risk of harm, and not substantial certainty of harm, observes: “There have been courts, such as Connecticut, New York, and formerly New Jersey, which have held that since the nuisance itself is an intentional, or “absolute” one, contributory negligence cannot be a defense to the plaintiff’s action founded on it. In the better reasoned cases, this has been rejected, and it has been recognized that so far as the tort liability is concerned, the defendant has created only a risk, and that with respect to the resulting damage his conduct cannot be called anything more than negligence; and hence that contributory negligence is a valid defense. It may be surmised that the decisions barring the defense have rested in reality upon a dislike of it; but the way to get rid of it is scarcely by resort to fictions transforming negligence into intent.” (Emphasis added.) Prosser, Law of Torts § 91, pp. 609-10 (4th ed. 1971). As we read our own cases, summarized in Kennedy v. City of Sawyer, where tort liability is predicated on conduct less culpable than “intentional” the general rule is to compare fault and causation. Under the accepted analyses of nuisance, to create an “intentional” nuisance it is not enough to intend to create a condition causing harm; the defendant must either specifically intend to damage the plaintiff or act in such a way as to make it “substantially certain” that damage will follow. In the case of a true intentional nuisance, where contributory negligence was never a defense, it may well be argued that under comparative negligence fault should not be’ compared. That is not what we have here, however. This case involves a specific incident stemming from a condition apparently existing for a number of years prior to the injury. There had been some isolated instances of trouble in prior years—even, as will be discussed later, to the point of provoking a lawsuit. However, there was apparently nothing of the magnitude of this incident, and no evidence was introduced of any troubles before 1975. The jury heard only of heavy rains earlier in 1975 which had caused plaintiff concern, but no serious difficulties. Although the city may have known of plaintiff’s continuing concern, it was not until plaintiff’s drainage system clogged and ruptured, presumably as a result of the combination of trash and debris washing down the ravine and the improper design of the system itself, that serious damage occurred. The fact the city contributed by its dumping is not sufficient to charge it with intentional wrongdoing. Along with other unnamed parties, the city simply dumped where it should not have. There is nothing to indicate it intended to damage the plaintiff, or that the injury was substantially certain to occur. At best, the evidence showed only that the city’s conduct created a condition posing an undue risk of harm. Accordingly, it was proper for the jury as fact finder to allocate causal responsibility for plaintiff’s damages. III. THE PROTECTIVE ORDER Prior to trial the defendant city filed, and with plaintiff’s consent the court sustained, a motion in limine preventing the introduction of evidence relating to events occurring before January 1, 1975. The purpose was to avoid mention of a previous lawsuit between the parties involving debris washing onto plaintiff’s land on three different occasions in 1973 and 1974. The suit had been settled and plaintiff in August, 1975, had executed a covenant not to sue covering events prior to January 1, 1975. The city contends the order was violated to its prejudice. We find no reversible error. The background of the city’s contention, highly summarized, is as follows: The city’s position at trial was that it had no notice of plaintiff’s continuing problems with the city’s “dump.” Plaintiff’s president testified to a meeting with city officials on April 4, 1975. That was a time not covered by the protective order, but the meeting apparently dealt with settlement of the prior suit. That fact was not brought out by plaintiff, but the fact of the meeting was relied on to show notice of plaintiff’s complaints. During the city’s case the mayor in effect denied receiving notice at the April 4 meeting. On cross-examination, he was asked if he had notice of plaintiff’s complaints any time in 1975. His response was that he knew plaintiff had filed a lawsuit. There are three reasons why the city cannot secure a reversal based on these trial occurrences. First, when the April 4 meeting first came up, the court asked counsel for the city if he wished to move for a mistrial; counsel declined. A party may not adopt “wait and see” tactics and complain only if the result is unfavor able. State v. Buggs, 219 Kan. 203, 207-08, 547 P.2d 720 (1976); Tilley v. International Harvester Co., 208 Kan. 75, 82, 490 P.2d 392 (1971). Second, the only clear reference to the prior suit came from the city’s witness in an unresponsive answer to a proper question by plaintiff’s counsel. From plaintiff’s standpoint the reference to the forbidden subject was at best “inadvertent.” See Borth v. Borth, 221 Kan. 494, Syl. ¶ 2, 561 P.2d 408 (1977) (inadvertent reference to insurance). In addition, the city cannot be permitted to take advantage of the “misconduct” of its own witness. Third, the question of violation of the protective order was presented to the trial court in the city’s post-trial motion and found to be without merit. “Ruling on whether a pretrial exclusionary order entered pursuant to a motion in limine has been violated is a matter for the sound discretion of the district court. The district court’s determination will not be disturbed on appeal absent a clear showing of abuse of discretion.” Ayers v. Christiansen, 222 Kan. 225, Syl. ¶ 1, 564 P.2d 458 (1977). We find no abuse of discretion here. Affirmed.	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Meyer, J.: This is an appeal from an order distributing bulk sale proceeds. The issue herein is whether the trial court erred in directing that the payment of the tax liens of the United States should be applied to the trust fund portion of the tax assessment. Hart’s Transfer and Storage, Inc. (Hart’s), turned over its assets to auctioneers pursuant to K.S.A. 1980 Supp. 84-6-106(4) for a bulk sale of the assets. The auctioneers deposited the $37,940.63 proceeds from the sale into the registry of the district court and filed an interpleader action requesting that the creditors of Hart’s be permitted to file their claims in the court and that the court determine the amount to which each was entitled. The United States filed a claim in the amount of $43,804.61 in this proceeding based on tax liens relating to the unpaid withholding taxes and social security taxes, plus penalties and interest, assessed against Hart’s. Both Richard Hart, secretary-treasurer and general manager, and Lucille Hart, president, requested a bulk sale of the assets of the corporation and wanted the proceeds available for taxes to be applied to the trust fund portion of the taxes. The United States (appellant) argues that the payment of the tax was involuntary and that the government, therefore, could apply the payments in accordance with its own policy and did not have to follow the wishes of the taxpayer. While no appellee filed a brief, the corporate officers of Hart’s argued below that the payment was voluntary, and, hence, the taxpayer had the right to direct how the payments should be applied. The order of distribution awarded $21,657.65 to First National Bank, $4,872.61 to Union National Bank, and the balance of the fund, approximately $11,410.37 to the United States. The trial court further found that the payment was voluntary and directed the Internal Revenue Service (IRS) to apply the sums received in this proceeding to the trust fund portion of the taxes. The United States appeals from that order. Employers are required to withhold from employees’ wages an amount for payment of income taxes and also for social security taxes. 26 U.S.C. 3102(a), 3402, 3403. It is provided in 26 U.S.C. 7501 that withheld taxes “shall be held to be a special fund in trust for the United States.” If the employer fails to turn over the amount withheld for taxes to the IRS, the employees are still credited with those amounts against their tax liability as if they were in fact paid over to the government. Dillard v. Patterson, 326 F.2d 302, 304 (5th Cir. 1963); Moore v. United States, 465 F.2d 514, 517-18 (5th Cir. 1972), cert. denied 409 U.S. 1108 (1973); Hartman v. United States, 538 F.2d 1336, 1340 (8th Cir. 1976). An officer or employee of a corporation who is under a duty to pay the tax for the corporation, however, may be held liable for an amount equal to the total amount of the tax not paid over if he wilfully fails to truthfully account for and pay over such tax. 26 U.S.C. 6671(b), 6672. Presumably the corporate officers of Hart’s wish to have the sale proceeds available for taxes applied to the trust fund portion of the owed tax in order to reduce their potential liability. The general rule with regard to application of payments in debtor-creditor relations as recognized in Kansas is as follows: “ ‘It is the law that a debtor who owes two or more accounts to a creditor may direct to which account any money which he voluntarily pays shall be applied. It is also the law that when the debtor pays without directing to which of his accounts his payment shall be applied, the creditor has the privilege of applying the sum paid to either of the accounts.’ ” Neal v. Gideon, 157 Kan. 1, 4, 138 P.2d 419 (1943), citing from Lumber Co. v. Workman, 105 Kan. 505, 509, 185 Pac. 288 (1919). See also Carry, Executrix v. Homer, 195 Kan. 475, 407 P.2d 538 (1965); 70 C.J.S., Payment § 50, p. 255. The cases involving tax payments have recognized this rule. In Liddon v. United States, 448 F.2d 509 (5th Cir. 1971), cert. denied 406 U.S. 918 (1972), the taxpayer failed to request how funds should be applied and the IRS was allowed to apply the payment in accordance with their usual policy. In Hewitt v. United States, 377 F.2d 921 (5th Cir. 1967), a taxpayer who demanded application of payment to a particular fund had no right to direct application of the payment made by the corporation in that the demand was made almost sixteen months after he had severed his connection with the corporation. The court ruled that in the absence of directions, the IRS had the right to follow its policy to credit the funds so that the balance left unpaid would be withheld taxes which could be assessed against the responsible officers of the corporation if necessary. In Hirsch v. United States, 396 F. Supp. 170 (S.D. Ohio 1975), the taxpayer sent a check with a return for part of the amount due. The check, on the back, designated how the present payment and two past payments should be applied to trust fund liability. The court held that as to the two past payments the designation was insufficient to bind the IRS because the two past payments had already been accepted by the IRS prior to the designation. The Hirsch court stated: “Had Carriage House designated how it wished its deposits to be allocated when it made the deposits, or had it so designated before the time for filing its second quarter return had expired, the defendant [U.S.] would have had no choice but to accept the designation and apply the deposits accordingly. [Citations omitted.]” 396 F. Supp. at 172. See also Datlof v. United States, 370 F.2d 655 (3d Cir. 1966). The right of debtors to direct application of payments does not apply, however, to involuntary payments. In cases of involuntary payments, the debtor clearly has no right to make an application of payments. There is a split of authority as to whether the creditor has a right to make an application of payments or whether the creditor must defer to the court to make such application. 70 C.J.S., Payment § 51, p. 257. Some courts hold that neither the debtor nor the creditor has the right to direct the application of payments and the court must make the application, following basic principles of equity, seeking to protect the rights and priorities of all the parties. United States v. Transamerica Insurance Company, 357 F. Supp. 743, 748 (E.D. Va. 1973), citing 15 Williston on Contracts § 1797 (3d ed. 1972), and 60 Am. Jur. 2d, Payment §§ 89, 106. We find no cases and none have been cited to us which deal with bulk transfers such as this in determining what was a voluntary payment. Some situations which have been recognized as involuntary payments include: (1) attachment of proceeds from the sale of collateral, Gall. Tr. & Sav. Bk. v. Darrah, 153 Mont. 228, 456 P.2d 288 (1969); (2) creditors forcing receivership, Paving Co. v. Speedways, Inc., 250 N.C. 358, 108 S.E.2d 641 (1959); (3) condemnation proceedings, Adams v. Taylor, 253 N.C. 411, 117 S.E.2d 27 (1960); (4) mortgage foreclosure in a receivership proceeding, Safe Dep. & Tr. Co. v. Woodbridge, 184 Md. 560, 42 A.2d 231 (1945); and (5) payment of insurance proceeds for fire loss, Oxford Finance Companies, Inc. v. Gray, 317 So.2d 910 (Miss. 1975). In United States v. Transamerica Insurance Company, 357 F. Supp. 743, the court held a fund produced by a sale of corporate assets to another was the substantial equivalent of attachment proceedings in that the sale constituted an agreement between the transferor, the transferee and the United States, whereby the United States agreed to forego attachment proceedings if the parties set up a special fund in the U. S. Treasury wherein 60 percent of the proceeds from the sale would be deposited and held pending settlement of the Government’s claim against the transferor. The U. S. Tax Court in Amos v. Commissioner of Internal Revenue, 47 T.C. 65 (1966), defined an involuntary payment of federal taxes as “any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.” 47 T.C. at 69. In Amos, payments received from the bank and an insurance company pursuant to notice of levy were determined to be involuntary payments. In O’Dell v. United States, 326 F.2d 451 (10th Cir. 1964), payments received pursuant to a bankruptcy proceeding were found to be involuntary payments. In United States v. De Beradinis, 395 F. Supp. 944 (D. Conn. 1975), payments received as a result of IRS levies and participation in litigation constituted involuntary payments. In O’Dell, the taxpayer’s wife appealed from an order of the lower court disbursing funds on deposit in the registry of the court in a bankruptcy proceeding. The wife claimed that the court erred in not directing the IRS to apply funds in the manner requested by the wife or the trustee. The court recognized the rule that a debtor voluntarily paying his debt may direct the application of his money to such items or demands as he chooses, but stated, “such is not the case, where, as here, the payment is made involuntarily as in an execution or judicial sale.” 326 F.2d at 456. The court found no error in the bankruptcy court refusing to direct the application of funds. Kansas has held that even where the proceeds of collateral may result from involuntary proceedings, a creditor has the option of applying the same to the debt or debts which may be most precarious, unless different directions were given by the debtor when the collateral was pledged. State Bank of Downs v. Moss, 203 Kan. 447, 454 P.2d 554 (1969). O’Dell is the case most in point with regard to situations involving involuntary payment of taxes. The court there approved a finding by the bankruptcy court that it had no power to order the IRS to apply involuntary payments in a specific way. The U. S. Tax Court in Amos characterized the view that the creditor has the right to direct the application of involuntary payments as the view adopted with respect to federal taxes, penalties and interest, citing O’Dell: “[T]aking the text of the O’Dell opinion as our guide, we believe that, as between the debtor and the creditor and in the interest of orderly administration, the better rule for Federal tax purposes is to permit the Commissioner’s agent to apply involuntary payments in the manner he chooses.” 47 T.C. at 69. The main voluntary aspect of the bulk transfer was that it was not forced by creditors, but was instigated by the corporate officers of Hart’s. We conclude that the act of the debtor herein in turning its assets over to the auctioneer for sale under K.S.A. 1980 Supp. 84-6-106(4) was voluntary. However, when the sums derived from that sale were paid into the district court and creditors were advised to file claims so that the court could decide the amount and priority to which each was entitled, the payments so ordered were involuntary. Being involuntary, they were subject to the application as designated by the creditor. Therefore, while we find no error in the trial court’s findings of amounts and to whom same were to be paid, the trial court did err when it ordered IRS how to apply the amount awarded to it. The order of the trial court is affirmed insofar as it determined the amounts and priorities of creditors herein. However, the trial court is reversed insofar as it ordered IRS to allocate the amount determined to be due it in a specific way. The case is thus affirmed in part and reversed in part, and remanded to the trial court for an order consistent with this opinion. Affirmed in part; reversed in part and remanded.	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Meyer, J.: Defendant Floyd Calvin Puckett was convicted of seven counts of selling unregistered securities (K.S.A. 17-1255 and 1979 Supp. 17-1267), seven counts of failure to register as a broker-dealer or agent (K.S.A. 1979 Supp. 17-1254 and 1979 Supp. 17-1267), and seven counts of unlawful acts in connection with the sale of a security (K.S.A. 1979 Supp. 17-1253 and 1979 Supp. 17-1267) [referred to interchangeably as failure to disclose a material fact or the “fraud” counts]. The securities involved are fractional interests in oil and gas leases. Defendant Puckett appeals from his conviction. The circumstances which gave rise to the convictions began in July, 1977, when Robert R. Freeman, an attorney, and Toby Elster approached defendant regarding an oil lease, known as the Parker lease, which they had obtained in Red Willow County, Nebraska. After discussion among the three men, the details of an agreement regarding the transfer of the lease to defendant and to his corporation, Petroleum Producers, Inc., were finalized. The parties agreed that Freeman and Elster would retain a 25 percent carried interest (said 25 percent was later purchased by Arthur J. Gorski) in the oil produced in exchange for transferring the lease to defendant. Defendant also assigned to his wife a 25 percent carried interest. Defendant planned to drill two wells on the leased acreage by the beginning of 1978. Defendant met with his salesmen in August, 1977, and acquainted them with the lease which they were to sell to potential investors. Between September, 1977, and January 10, 1978, eight investors were sold interests in the leases. None were told about the carried interests. On October 27, 1978, defendant wrote a letter to three of the purchasers on his corporate stationery verbalizing what he had known all along: “I told you during my presentation that the purchase price of the first two wells was double high, so to speak, due to the fact that in order for me to acquire the acreage I had to carry one-quarter of the working interest free on the drilling, equipping, and completion in addition to the normal quarter interest for the promoter-producer. In other words that party paid nothing, which made the purchase price very high, however, due to the location of the acreage involved and with the potential of getting producers rather than dry holes, I felt it was worth it.” Gary Burge, one of the salesmen, testified that one of the investors requested information about the drilling dates, which request he referred to defendant. Defendant told Burge to make a copy of a portion of a letter showing the drilling dates, but told him to cover up the portion of the letter regarding the acquisition of the Red Willow lease by giving a carried interest. All of the investors testified that the existence of the carried interests was important knowledge to them because if they had known that there were carried interests they would not have invested. Frank Morgan, an expert witness for the State, testified that it is important to know about the existence of carried interests because “it would tell you what you might expect in the way of return, how long it would take you to get your return of your investment capital, not profit, just return of the investment capital. . . . Would make a big difference.” Morgan’s testimony was also corroborated by Bruce Burditt, chief accountant in the office of the Kansas Securities Commissioner. Defendant first contends that the trial court erred in failing to grant a motion to dismiss at the close of the State’s evidence since there was no evidence to show materiality of the fact not disclosed. The scope of review in a criminal case is found in State v. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980): “In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found defendant guilty beyond a reasonable doubt? [Citations omitted.] In considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence and if the essential elements of the charge are sustained by any competent evidence the conviction must stand. [Citation omitted.]” K.S.A. 22-3419(1) states: “The court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more crimes charged in the complaint, indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such crime or crimes. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without having reserved the right.” In State v. Colbert, 221 Kan. 203, Syl. ¶ 4, 557 P.2d 1235 (1976), it is stated: “A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If the judge concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” See also State v. Tillery, 227 Kan. 342, 345, 606 P.2d 1031 (1980). Our question, then, is whether there was evidence from which a juror might conclude beyond a reasonable doubt that the failure to disclose the fact that there was a 25 percent carried interest given to obtain the lease in addition to defendant’s wife’s 25 percent carried interest was material, i.e., was there a substantial likelihood that a reasonable investor would consider such carried interests important in deciding whether to purchase securities. It is necessary in order to understand this case that the reader understand what is meant by “carried interests.” Such interests, in this case, were interests to be carried free to the persons who have such interests to the point when the well would begin to pump. That is, the holders of the carried interests would not need to help with production expense insofar as drilling the well, inserting the pipes and installing the pump were concerned. The expenses to that point would be paid by the producer or others. Defendant’s argument on this issue goes only to the counts relating to failure to disclose a material fact in connection with the sale of a security. The other counts were not argued in terms of sufficiency of the evidence. Defendant argues that there was insufficient evidence to show that the fact that was not disclosed was “material.” The state points to evidence that (1) there was an admission by defendant that investors paid a higher price because of the carried interests (see portion of October 27, 1978, letter set out above); (2) there was expert testimony stating that the carried interests affected the length of time within which the investors would recoup their investments; and (3) the additional cost in having carried interests was borne by the paying investors. Defendant claims that the 25 percent carried interest given for the lease was not a material fact that needed to be disclosed because (1) some consideration had to be given for the lease; (2) the price for each share of the working interest was not directly related to the cost of drilling and completing the wells; and (3) that the other 25 percent carried interest (that he assigned to his wife) is customarily retained by a promoter-producer. Defendant explains his first argument in the following terms: “If for example, defendant had paid $100,000.00 to acquire the lease, then each share of the working interest sold would have had to pay a proportionate share of the $100,000.00 in addition to a share of the other expenses.” Thus, there is no way of telling whether the 50 percent carried interests would have caused the price paid for a share to be more or less than if the carried interests had not been used. This argument merely is contradictory to defendant’s admission that the price paid was higher than it would have been if there had not been carried interests. This argument tends to go to the weight to be given such evidence and was for the jury to decide. Defendant argues secondly that since the price per 1/16 share at $30,000 was set on a turnkey basis, the total cost of developing the wells was set and the price for each investor was not subject to increase. If the cost of development went over what defendant estimated the cost would be, defendant would have to absorb the loss. This argument has some merit because the investor would know at the time of purchasing a share in the working interest exactly how much would be paid for the interest. The fact that said purchase price was “double high” would not necessarily be material in that each investor knew exactly what the cost of the share was. The State’s expert witnesses testified that the length of time to recoup the investment was extended because of the carried interests. The witnesses compared the percent of actual drilling cost to the percent of net income to be received. While defendant argues that the State failed to take into account the acquisition cost, the fixed price paid by the investor, the investment of defendant in the drilling cost, and the possibility that drilling costs may have been much greater, this type of argument tends to go toward the weight to be given the State’s testimony, and is for the jury to determine. While defendant’s arguments have some merit, it was within the trial court’s discretionary power to leave these questions to the jury. Defendant was able to present his mitigating evidence to the jury and argue it, and while admittedly the area is complicated and the jury may have made a mistake, it would be their prerogative to believe the State’s witnesses over defendant’s witnesses. In addition, the jury would have considered the investors’ statements that the fact that there were carried interests was material to them and they would not have invested in this property had they known that there were carried interests. Defendant next claims that Instruction No. 46 was erroneous. Defendant did not object to Instruction No. 46, and therefore our standard of review is whether the instruction given is clearly erroneous. See K.S.A. 22-3414(3). Instruction No. 46 states: “A fact is material if a reasonable person would consider it important in making an important decision.” The test in federal securities fraud cases as to whether there is a material fact is that there must be shown “a substantial likelihood that a reasonable shareholder would consider it important . . . .” TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 439, 48 L.Ed.2d 757, 96 S.Ct. 2126 (1976); Hassig v. Pearson, 565 F.2d 644, 650, (10th Cir. 1977). The difference in the two instructions is the concept that there must be a substantial likelihood that a reasonable shareholder would consider it important rather than the fact that a reasonable person would consider it important. The instruction used in the instant case is stronger than the one cited in the federal securities fraud cases because the one used in this case requires that a reasonable person would consider it important, whereas the federal rule only requires a substantial likelihood that a reasonable shareholder would consider it important. Instruction No. 46 was not clearly erroneous. Defendant contends the court abused its discretion in limiting cross-examination of the expert witnesses. The trial court held that defendant could not cross-examine the State’s expert witnesses as to “turnkey” projects because such questions were beyond the scope of direct examination. Cross-examination must be responsive to testimony given on direct and must be material and relevant. State v. Nirschl, 208 Kan. 111, Syl. ¶ 5, 490 P.2d 917 (1971). Cross-examination of an expert should be permitted to the fullest extent so the jury may determine the probative value of his testimony. Rostine v. City of Hutchinson, 219 Kan. 320, Syl. ¶ 7, 548 P.2d 756 (1976). The extent of cross-examination lies within the sound discretion of the court. State v. Guffey, 205 Kan. 9, 17, 468 P.2d 254 (1970). Where general subject matter has been opened up on direct, cross-examination may go to any phase of the subject matter and is not restricted to identical details developed or specific facts gone into on the direct. Frame, Administrator v. Bauman, 202 Kan. 461, 465, 449 P.2d 525 (1969). The knowledge as to what the carried interests in this case were, is essential to the trier of fact because it is defendant’s contention that it is of no concern to the investors as to who would pay for the drilling of the well, for the pump, for its installation, etc.; any deficiency, or overrun of costs, would have to be paid by the producer anyway. That is, defendant contends that the producer himself would have to pay all production expenses. He bolsters this contention by testimony of his expert witness plus his assertion that the investors have no reason to be concerned about who pays expenses since they know that they will receive a certain percent of the well’s net proceeds or a specific number of dollars, and that it is immaterial to the investors whether all of their money, or only part of it, is utilized by the producer to produce oil. On the other hand, with equal sincerity, the prosecution contends that had the investors known that the producer was receiving no money from others than themselves to produce the wells in question, that they ostensibly would have been in a better bargaining position when they purchased their various interests. Indeed, the testimony of the investors was that such knowledge would have made a difference to them in making their investments. Moreover, the State presented expert testimony to the effect the nondisclosure was material. Both of the above arguments appear tenable. It can be seen that the jury might well have decided to adopt either of the above views; hence, the question of materiality of the withheld information (i.e., the carried interest) was of extreme importance. We have no trouble in concluding that the question as to whether the withheld information was material was properly left to the trier of fact — in this case the jury. Normally, also, we would be persuaded, since there was considerable evidence going in each direction — that is, that the facts withheld were material vis-a-vis that they were not — that the jury verdict should be upheld. However, we believe that full cross-examination might have more fully informed the jury, and we are unable to say that such cross-examination would not have changed the jury’s decision. Therefore, the error was not harmless. We conclude that as to the seven fraud counts, which involved materiality, that defendant should be afforded a new trial. Defendant contends the trial court erred in excluding testimony of the Kansas Securities Commission’s nonenforcement policy as relevant to the issue of defendant’s intent to defraud. Defendant claims that the nonenforcement policy was equivalent to an order. It should first be noticed that there was no proffer of the specific evidence which allegedly would have proved that the Kansas Securities Commission had a policy of nonenforcement in regard to oil and gas leases. K.S.A. 60-405 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.” While we know what defendant intended to prove, we do not know what evidence he had to support his allegation. As to defendant’s argument that the nonenforcement policy was equivalent to an order, it is noted that the cases which defendant cites (Environmental Defense Fund, Incorporated v. Hardin, 428 F.2d 1093 [D.C. Cir. 1970]; and Nader v. Saxbe, 497 F.2d 676 [D.C. Cir. 1974]) do not stand for the defendant’s proposition that a nonenforcement policy is a defense to a criminal prosecution. Those cases merely held that an administrative policy of nonenforcement was an agency order for purposes of judicial review. This would permit a private attorney general concept where a person could come in and get judicial review of the fact that there was nonenforcement. This does not rise to the level of defense to a criminal action. As to the argument that the district attorney was estopped from prosecuting by the nonenforcement policy, we note in Derby Oil Co. v. City of Oxford, 134 Kan. 59, 4 P.2d 435 (1931), it was held that a mayor’s promise not to prosecute an oil company for drilling while validity of the ordinance was being tested, and counsel’s conduct, estopped the city from prosecuting. However, we question whether the actions of the Kansas Securities Commission could estop a district attorney from prosecuting. While the violations are controlled by the same act, it is noted that K.S.A. 1979 Supp. 17-1267(6) states: “The commissioner may refer such evidence as may be available concerning violations of this act or of any rule and regulation or order hereunder to the attorney general or the proper county or district attorney, who may in the prosecutor’s discretion, with or without such a reference, institute the appropriate criminal proceedings under this act.” (Emphasis added.) In addition, it is noted that while the Derby Oil Co. case involved an express promise, defendant in the case at bar is relying on a nonexpress “policy” of the Kansas Securities Commission. Defendant cites several cases from other jurisdictions. In Oil Shale Corporation v. Morton, 370 F. Supp. 108 (D. Colo. 1973), an administrator was estopped by an announced policy of the department regarding the effective nonperformance of assessment work. It is noted that the Oil Shale case involved an announced policy whereas in the case at bar there is nothing so concrete. Defendant also cites Khoury v. Board of Liquor Control, 81 N.E.2d 634 (Ohio App. 1948). In that case several members of the Board of Liquor Control visited the accused’s establishment but lodged no protest against strip-tease shows. The license could be revoked on “sufficient cause.” The case turned not on whether the city was estopped from prosecuting, but on what constituted sufficient cause. We are not dealing with a violation based on such a nebulous concept. Defendant’s assertion that the failure to enforce the Securities Acts provisions in the oil and gas industry constitutes an order, then, is not supported by law. Therefore, defendant cannot rely on the fact that he was “complying with an order of the commissioner.” See K.S.A. 1979 Supp. 17-1270(/). Furthermore, defendant’s reliance on K.S.A. 1979 Supp. 17-1267(a) is misplaced. That statute provides that no person may be imprisoned for the violation of any rule or order if he proves that he had no knowledge of the rule or order. The statute relates only to imprisonment and not to the issue of criminal intent. We conclude it was not error for the court to exclude testimony regarding the Kansas Securities Commission’s nonenforcement policy from the jury. Such evidence was not relevant to the issue of defendant’s intent to defraud. Defendant next contends the trial court erred in not allowing testimony that defendant’s attorney had advised him that he could sell the interests in the oil and gas lease without registering with the Kansas Securities Commission. Good faith is a defense. Good faith reliance on the advice of counsel is a factor to be considered by the jury in determining whether there was an intent to defraud. People v. Terranova, 38 Colo. App. 476, 563 P.2d 363 (1976). See also U.S. v. Piepgrass, 425 F.2d 194 (9th Cir. 1970). Defendant misstates what the holding of the trial court was. The trial court held: “[T]hat Mr. Freeman did not give any legal advice to PPI or to the defendant Puckett until early December of 1977, and that was on a specific sale to kinfolk of Mr. Puckett in which he advised him that he could make the sale, that that particular sale was exempt; that had the defendant been charged with that sale, it would be the intention of the Court to allow the testimony of the — he relied upon the advice of his attorney to go to the jury as one of the factors of consideration in removing the necessary intent element or scienter that is found in the fraudulent sale of securities, that being not an absolute defense but merely one of the things that the jury should consider. However, the next sale — the next conversation that Mr. Freeman has with Mr. Puckett concerning a sale in Red Willow County, Nebraska, is in late January or early February, and all of the sales that the defendant has been charged with in this instant case have already been consummated. They have already been completed and transacted and, therefore, the defendant would not have the right to rely upon the — not an absolute defense, but the defense that I relied on the advice of my attorney because the sales had already been consummated.” (Emphasis added.) Defendant states that the trial court’s reason for not accepting evidence concerning legal advice was that the attorney was not actually retained as counsel at the time the advice was given. This was a misstatement of the reason that the court gave for excluding the evidence. Clearly, if the advice in question was given after the sales had already been made, they could not vitiate defendant’s intent to defraud. The intent of defendant is relevant at the time the contracts were entered into. Defendant also contends the trial court erred in instructing with Instruction Nos. 48, 53 and 56. Instruction No. 48 states: “In order for you to find any defendant guilty of Counts 3, 9, 12, 15, 18, 21 and 24, you must find that the defendant intended to deceive, manipulate or defraud by the acts set out in Instructions 7, 8, 13, 14, 19, 20, 25, 26, 31, 32, 37, 38, 43, 44.” Instruction No. 53 states: “Ordinarily a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the state has met the burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.” Instruction No. 56 states: “The intent with which an act is committed, being but the mental state of the person committing it, direct proof of such intent is not required, but it may be proved by any competent evidence, direct or circumstantial. Such intent, however, must be established by the weight of evidence required by these instructions.” As to Instruction No. 48, defendant objected to the instruction as given because the following was deleted: “You must find that the defendants acted with a design, purpose or intent to do wrong or cause an injury to another.” First, it is noted that as to the sale of unregistered securities, a specific intent is not required. It was held in State v. Hodge, 204 Kan. 98, 107, 460 P.2d 596 (1969), a case involving sale of unregistered securities and sale by persons not registered as brokers/dealers: “No specific intent is necessary to constitute the offense where one violates the securities act except the intent to do the act denounced by the statute.” The term “willfully” under K.S.A. 1979 Supp. 17-1267 is construed to mean that the person acted intentionally in the sense that he was aware of what he was doing. 204 Kan. at 107-8. The cases under the Securities Act of 1933, 15 U.S.C. § 77e, regarding sale of unregistered securities are split as to whether scienter is an element of the offense. Compare United States v. Crosby, 294 F.2d 928 (2nd Cir. 1961), cert. denied 368 U.S. 984 (1962); and United States v. Tortorello, 480 F.2d 764 (2nd Cir.), cert. denied 414 U.S. 866 (1973); with United States v. Custer Channel Wing Corporation, 376 F.2d 675 (4th Cir.), cert. denied 389 U.S. 850 (1967); and United States v. Sussman, 37 F. Supp. 294 (E.D. Pa. 1941). On the other hand, under the federal securities laws, it has been held that an action for violation of Rule 10b-5 under the Federal Securities Exchange Act of 1934 does involve a requirement of scienter. Rule 10b-5 makes it unlawful to omit to state a material fact in connection with the purchase or sale of any security. It was held in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 47 L.Ed.2d 668, 96 S.Ct. 1375 (1976), that a private cause of action for damages will not lie under section 10(b) and Rule 10b-5 in the absence of any allegation of “scienter,” i.e., an intent to deceive, manipulate or defraud on the defendant’s part. 425 U.S. 185. The court in the case at bar followed the Ernst decision and required the jury to find an intent to defraud on the part of the defendant on the counts dealing with failure to disclose a material fact. The court followed State v. Hodge, 204 Kan. 98, with regard to the other two violations. As to Instruction No. 53, it is noted the court used the revised PIK Crim. 54.01. This revised instruction meets the requirements of State v. Acheson, 3 Kan. App. 2d 705, 601 P.2d 375, rev. denied 227 Kan. 927 (1979), which criticized the old instruction in view of Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979). The new instruction makes it crystal clear that the burden of proof with regard to intent is not shifted. As to Instruction No. 56, the instruction specifies that the intent must be established by the weight of evidence required by these instructions. Such sentence refers the jury back to the fact that it must prove intent beyond a reasonable doubt. The trial court did not err in using these instructions. Defendant contends the trial court erred in limiting cross-examination of witness Burge. Defendant argues that he was prevented from impeaching Burge’s testimony that he didn’t know anything about selling oil and gas leases, except what defendant had told him. Burge also testified that he didn’t know what a carried interest was. When the defendant attempted to cross-examine Burge regarding previous sales of oil and gas leases, the attorneys went into chambers to discuss an objection that said questions were outside the scope of direct examination. In concluding that such testimony went beyond the scope of direct, the court prevented defendant from establishing that it was Burge’s custom not to reveal carried interest. The court, however, stated that the ruling was not meant to block defendant from impeaching Burge’s testimony, and that he could do anything and everything that he felt he needed to do to bring that out. Furthermore, the court allowed defendant, in his case in chief, to establish that by the time the Parker lease was entered into, Burge had worked on three other leases and had made sales to numerous investors. Considering all this, the limitation of cross-examination of Burge cannot be ruled to be an abuse of discretion. Additionally, the fraud instructions concern us. These instructions were Instruction Nos. 7, 13, 19, 25, 31, 37, and 43. Since all of the fraud instructions are identical, except for the name of the person allegedly defrauded, we will set out herein only Instruction No. 7, which in its entirety reads as follows: “The defendant Floyd C. Puckett is charged in Count Three with the crime of unlawful acts in connection with the sale of a security. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: “1. That the defendant Floyd C. Puckett directly or indirectly did employ or devise, scheme or artifice to defraud, to-wit: That one Arthur J. Gorski would hold a carried interest of 25% in each of the two wells to be drilled on the Red Willow County, Nebraska, lease, and that Doris M. Puckett would hold a carried interest of 25% in each of the two wells to be drilled on the Red Willow County, Nebraska, lease; “2. That the same was employed willfully, knowingly, and intentionally; “3. That the same was employed in connection with the sale or offer to sell a security to Gordon L. Baldwin; “4. That said acts occurred within Sedgwick County, Kansas, on or about the 15th day of September, 1977. OR “1. That the defendant Floyd C. Puckett directly or indirectly did fail or omit to state a material fact necessary to make the statement made, in the light of the circumstances under which they are made, not misleading, to-wit: That one Arthur J. Gorski would hold a carried interest of 25% in each of the two wells to be drilled on the Red Willow County, Nebraska, lease, and that Doris M. Puckett would hold a carried interest of 25% in each of the two wells to be drilled on the Red Willow County, Nebraska, lease; “2. That the same was employed willfully, knowingly, and intentionally; “3. That the same was employed in connection with the sale or offer to sell a security to Gordon L. Baldwin; “4. That said acts occurred within Sedgwick County, Kansas, on or about the 15th day of September, 1977. OR “1. That the defendant Floyd C. Puckett directly or indirectly did engage in an act, practice or course of business which operated or could operate as a fraud or deceit upon any person by failing or omitting to state a material fact; to-wit: That one Arthur J. Gorski would hold a carried interest of 25% in each of the two wells to be drilled on the Red Willow County, Nebraska, lease, and that Doris M. Puckett would hold a carried interest of 25% in each of the two wells to be drilled on the Red Willow County, Nebraska, lease; “2. That the same was employed willfully, knowingly, and intentionally; “3. That the same was employed in connection with the sale or offer to sell a security to Gordon L. Baldwin; “4. That said acts occurred within Sedgwick County, Kansas, on or about the 15th day of September, 1977.” The problem with the fraud instructions, exemplified by number 7, involves the first paragraph of each of the alternative portions of the instruction. Obviously, since this instruction was in the alternative, the jury could have found the defendant guilty on the first portion, or the second portion or the final portion of those instructions. That portion of the instruction preceding the first “OR” is faulty for the following specific reason. Such instruction means to us that the jury was told that if it found the defendant did not reveal the facts of the carried interests that he was guilty of a scheme to defraud the investors. This would violate the right of the defendant to have the jury find that even though there was a failure to reveal the fact of the carried interests, such failure was not part of a scheme to defraud. Similarly under alternatives two and three of the instructions, the first paragraphs also instruct the jury that if they found that the defendant did not reveal the facts of the carried interests that defendant was guilty of failure to disclose a material fact. The hotly contested issue in this case was whether the failure to disclose the fact of the carried interests was a failure to disclose a material fact. The trial judge specifically held that in view of the disputed evidence whether a carried interest was material was an issue for the jury. Yet the instructions take the issue of materiality from the jury and leave them only the issue of whether the defendant failed to disclose the carried interests. The jury was thus allowed to convict the defendant of a crime in the total absence of a finding of one of the necessary elements of the crime charged, i.e., materiality. Whenever an appellate court discovers an error in the jury instructions, which error is so extreme as to present a high likelihood that defendant’s constitutional rights to a fair trial are involved, it has both the right and the duty to remand the case for new trial. This is so even if the matter was not objected to by defendant in the court below, nor presented in his brief on appeal, nor raised in oral argument before the appellate court. In the final analysis, it is up to the appellate court to feel assured that the defendant, particularly in a criminal case, has received a fair trial. Such rule should not come into play unless the appellate court is of the opinion that the jury might well have convicted the defendant of a crime which he may not have committed, and that such result might not have occurred had proper instructions been given. Since we are unable to say that the jury would have convicted the defendant in the absence of the offending portion of the fraud instructions, it follows that those instructions are error, and that such error is of constitutional gravity. Generally, failure to brief an issue constitutes a waiver or abandonment of a claim of error with regard to that issue. See Friends University v. W. R. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1980). In the case at bar, there was no objection to the instruction at the trial court level, nor was the issue of whether the instruction was error briefed or argued on appeal. The mere fact that there was no objection to the instruction at the trial level does not preclude review if the instruction is clearly erroneous. K.S.A. 22-3414(3) states in part: “No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous.” (Emphasis added.) In State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 (1977), it is stated: “An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.” Furthermore, issues not raised at the trial level can be reviewed under certain circumstances even though not considered by the trial court. “As a general rule, a reviewing court will consider only those issues on which the parties have relied in trying their case, but exceptions exist where the newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally determinative of the case, or where consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights.” Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶ 3, 434 P.2d 858 (1967); Holmquist v. D-V, Inc., 1 Kan. App. 2d 291, 299, 563 P.2d 1112 (1977). Prior to January, 1977, there was a special rule in Kansas which stated in part: “[N]o issue, other than an issue going to the jurisdiction of the court over the subject matter of the litigation, may be briefed or will be considered on the appeal unless included in the statement of points.” Rule No. 6(d) (214 Kan. xxiii). See also State v. Johnson, 219 Kan. 847, 549 P.2d 1370 (1976). Effective January 10, 1977, the former Rules of Appellate Practice, numbers 1 through 18 were repealed and new rules of appellate procedure adopted (220 Kan. xxix). The new rules contained no comparable statement. However, as noted above, when the briefs did not raise an error such errors were not considered even after elimination of the court rule. We find no Kansas cases which recognize an error not raised on appeal other than the inferences which might well be drawn from the Kansas cases cited above. However, it is noted that other jurisdictions have recognized grave trial errors even though said errors were not raised in the briefs. Some have done so under specific rules of court which allow them to recognize “plain error,” while others have done so in the interest of justice. In Knihal v. State, 150 Neb. 771, 36 N.W.2d 109 (1949), the court reviewed an instruction even where said instruction was not assigned as error by defendant in his brief. The instruction was in a criminal case and infringed upon the right of a jury to judge the credibility of witnesses and to give weight to their testimony. Said instruction was held to be an abridgement of the substantial right of the defendant. It is noted that in Nebraska, under a special rule of court, an appellate court was allowed to recognize plain error. In State v. Cutshaw, 7 Ariz. App. 210, 437 P.2d 962 (1968), it was held that it was immaterial whether a fundamental defect was raised by defendant’s brief or by the Court of Appeals, sua sponte. The error was considered even though not raised on appeal. It is noted the error was raised below. Because of a faulty information, the particular defect was that the defense had no way of knowing what the issues were. In Davis v. State, 276 So. 2d 846 (Fla. Dist. Ct. App. 1973), though a point was not raised by defendant in his brief, the court of appeals recognized an obvious error in admitting evidence of another offense. It was therein stated: “[P]atently invalid convictions ought not be affirmed on the basis of technicalities which cannot in the end thwart effective appellate review once the appellant gets the due process to which he is entitled.” 276 So. 2d at 849. In People v. Hendrickson, 11 Ill. App. 3d 219, 296 N.E.2d 751 (1973), the court considered an error which was clear from the record under a rule of court which allowed them to recognize plain error. In People v. McCollough, 8 Ill. App. 3d 963, 291 N.E.2d 505 (1972), the question of the constitutionality of a statute was considered even though not raised in the court below nor on appeal. That state had a rule of court which allowed them to recognize plain error. In Boyd v. State, 204 So. 2d 165 (Miss. 1967), an unlawful search and seizure was considered although the issue was not briefed on appeal. In Tatum v. State, 534 S.W.2d 678 (Tex. Crim. 1976), the question of double jeopardy which was not raised in appellant’s brief was considered because said issue involved both a violation of state and federal constitution and required review in the interest of justice. In Henson v. State, 530 S.W.2d 584 (Tex. Crim. 1975), the clear violation of a statute regarding preparation time for counsel could be reviewed even though not raised by the briefs. In State v. Smith, 11 Wash. App. 216, 521 P.2d 1197 (1974), an instruction which was assigned as error but was not set forth in the brief was reviewed. The court stated: “Ordinarily, failure to set forth a challenged instruction in the brief will prevent review, as will failure to present the grounds relied upon to the trial court. However, instructions which allegedly violate a constitutional right ‘will be reviewed even though error was not properly claimed or preserved.’ [Citation omitted.]” 11 Wash. App. 224, citing from State v. Williams, 4 Wash. App. 411, 413, 481 P.2d 918 (1971). From what has been said, it follows that the convictions for fraud contained in Counts 3, 9, 12, 15, 18, 21, and 24, must be reversed and remanded to the trial court for new trial on those counts. What we consider to be an undue restriction on cross-examination of the expert witnesses relative to materiality, coupled with the error in instructions mentioned above, are the reasons for such reversal and remand. We conclude, however, that such reasons do not extend to the other counts of which defendant was convicted. Therefore, the trial court is affirmed as to the seven counts of selling unregistered securities and the seven counts of failure to register as a broker/dealer of which defendant was convicted. Affirmed in part; reversed in part and remanded to the trial court for further proceedings in line with this opinion.	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Abbott, J.: The defendant, El Paso Water Company, Inc., (El Paso) áppeals from a judgment against it for $151,826.07, contending the maximum judgment should be $19,707.89. The case involves the due date and manner in which the plaintiff, M & W Development, Inc. (M & W), may recover funds it advanced to El Paso to finance the extension of water lines in the city of Derby, Kansas. The total amount owing M & W is not in dispute. M & W is a real estate developer active in the Derby, Kansas, area. El Paso is a privately owned water utility serving the City of Derby under a franchise granted by Derby. In order to finance the extension of water service to new developments within the franchised area, El Paso has for a number of years executed standard form contracts with the various real estate developers whereby a developer would advance funds to cover the costs of extending El Paso’s distribution system into the area being developed. The contracts provided for repayment of the advancements pursuant to a formula that was based on whether the addition was developed in units or in its entirety, and on whether a certain percentage of connections had been completed in the unit. If the developer chose to develop the addition in its entirety, the money advanced by the developer would “mature for repayment” when 90 percent of the lots were occupied by water customers of El Paso. If the developer chose to develop the addition by units, the money advanced would mature for repayment at the rate of one-third when 40 percent of the total lots were developed and occupied by water customers; an additional one-third when 75 percent of the lots were so developed and occupied; and the remaining one-third when 90 percent of the lots were so developed and occupied. Upon the occurrence of the particular event triggering the repayment obligation, two methods of repayment of the advances are provided for in the contract. The provision that applies when the obligation to repay the advancement matures is the subject of this appeal and states: “(a) First Party [El Paso] will make, execute and deliver to Second Party [M & W] its promissory note or notes in amount or amounts equal to the sum of sums so advanced to First Party, bearing interest from the date of execution and delivery at the rate of 5% per annum, the principal and interest thereof becoming due and payable on a twenty-year amortized schedule with the first installment of interest and principal becoming due and payable sixty (60) days after the date thereof, and with semi-annual payments thereafter; or “(b) If First Party has funds from, or shall thereafter receive funds from, the issuance of any series of its first mortgage bonds to any mortgagee, it will then repay to Second Party the sum or sums advanced under and pursuant to the terms of this contract, and from time to time qualified for re-payment as in this Paragraph 4 provided, so long as funds from such source or sources remain available.” El Paso has used some version of the above clause in its contracts with developers since 1955; and prior to 1975, it had paid the advancements in full as they matured. The trial court held that El Paso’s failure to issue notes as provided for in that part of the contract set forth above constituted breach of contract; and, having failed to issue the notes, El Paso is not entitled to rely upon that provision of the contract pertaining to matured but unpaid advancements. The trial judge found that $112,279 had matured for repayment prior to commencement of the action. The attorneys agreed that additional amounts had matured prior to judgment and that the newly matured advancements should be included in the judgment; judgment was entered for M & W in the amount of $151,826.07. The trial judge also found that if he were in error concerning El Paso’s right to issue notes for the outstanding balance, the sum due on the notes as of December 31, 1979, would be $19,707.85 without interest on past due payments. El Paso contends that it did not breach its contracts with M & W; that its conduct did not constitute a material breach of its contracts with M & W; that any damages awarded in excess of $19,707.89 amounts to rewriting the contract between the parties and are excessive; and that the trial court erred in failing to find that M & W did not mitigate any of the damages that it might have sustained by reason of El Paso’s conduct. M & W cross-appeals, arguing that the contracts are unconscionable, and therefore null and void; that its forbearance to exercise its right of repayment was consideration for El Paso’s alleged agreement to pay cash plus a higher rate of interest; that El Paso waived its right to issue 20-year bonds in lieu of paying cash; and that it is entitled to punitive damages. The record contains substantial competent evidence to support the trial judge’s finding that El Paso breached the contract by not issuing notes to M & W. We cannot say, however, that a “material breach” justifying rescission of the contract has occurred, as was concluded by the trial judge. What justifies rescission of a contract was considered in In re Estate of Johnson, 202 Kan. 684, 691-92, 452 P.2d 286 (1969), wherein the Supreme Court commented: “[T]he right to rescind a contract is extreme and does not necessarily arise from every breach. To warrant rescission, the breach must be material and the failure to perform so substantial as to defeat the object of the parties in making the agreement. A breach which goes to only a part of the consideration, which is incidental and subordinate to the main purpose of a contract, does not warrant a rescission. (Baron v. Lyman, 136 Kan. 842, 18 P.2d 137; 17 Am. Jur. 2d, Contracts § 504; 17A C.J.S., Contracts § 422 [1]; Corbin on Contracts § 1104.)” (Emphasis supplied.) Accord, Whiteley v. O’Dell, 219 Kan. 314, 548 P.2d 798 (1976). Our Supreme Court has also held that failure of consideration, unless so great that it amounts to fraud, is not grounds for rescission of a contract; neither is the mere failure of a party to comply with terms of the contract. Kohn v. Babb, 204 Kan. 245, 250-51, 461 P.2d 775 (1969). Generally, upon rescission of contract the parties must be placed in substantially the same condition as they were in when the contract was executed. E.g., Whiteley v. O’Dell, 219 Kan. at 319. That obviously cannot be done in this case. Except for payment by El Paso, the contract had been fully complied with. M & W advanced the money to El Paso to extend its water lines to the land being developed, and El Paso extended its lines and provided water service. The developed area became occupied and the only provision in the contract left to be performed was the repayment of the matured advancements to M & W. Thus, the contract is fully executed except for El Paso’s promised repayment of the matured advances. There was no “material breach” of contract warranting rescission and the trial court erred in so holding. Furthermore, the cardinal principle governing assessment of damages for breach of contract is that the injured party should be placed, so far as can be done by a money award, in the same position that he would have occupied if the contract had been performed. Steel v. Eagle, 207 Kan. 146, 151, 483 P.2d 1063 (1971); 22 Am. Jur. 2d, Damages § 47; 25 C.J.S., Damages § 71. A party is not generally entitled to be placed in a better position than full performance by the other party would have placed him. 22 Am. Jur. 2d, Damages § 47; 25 C.J.S., Damages § 71. Additionally, in Steel, at page 151, the court stated: “[W]here a defaulting party fails to pay a sum of money as agreed under the terms of a contract, and he has received the consideration for which his promise was made, the measure of damages is, in the absence of special circumstances, the principal sum agreed to be paid with interest thereon from the time it was due. In such a situation the amount stipulated in the contract is prima facie the measure of recovery.” If El Paso had performed as provided for in the contract it would have repaid the advancement in cash if it had funds available from the issue of first mortgage bonds. The trial court found that El Paso had no such funds available and M & W does not challenge that finding on appeal. Furthermore, there is ample evidence in the record to support the finding. Thus, if El Paso had performed properly, it would have issued its promissory notes to M & W, bearing interest at either 5 percent or 7½ percent (depending upon the individual contracts, which provided for either 5 or 7½ percent), to be retired per a 20-year repayment schedule or when first mortgage bond money became available. If the notes had been issued, they would have generated principal and interest payments which the parties agree and the trial court found would have been in the amount of $19,707.89 as of December 31, 1979; and that is the proper amount of damages that should have been awarded M & W. Thus, the trial court erred in granting judgment for $151,826.07. We turn now to M & W’s cross-appeal. We believe M & W’s argument that the contract is unconscionable is controlled by Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 549 P.2d 903 (1976), wherein the court commented, at pages 759-60: “The cases seem to support the view that there must be additional factors such as deceptive bargaining conduct as well as unequal bargaining power to render the contract between the parties unconscionable. In summary, the doctrine of unconscionability is used by the courts to police the excesses of certain parties who abuse their right to contract freely. It is directed against one-sided, oppressive and unfairly surprising contracts, and not against the consequences per se of uneven bargaining power or even a simple old-fashioned bad bargain.” Based on Wille and the record before us, we cannot say the trial court erred in finding the contract not unconscionable. M & W next argues that El Paso “waived” its right to issue promissory notes. From our examination of the record, this issue appears to be raised for the first time on appeal. In any event it is without merit. Waiver has been defined as the voluntary and intentional relinquishment of a known right through some positive action or inaction inconsistent with that right. Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. 335, 341, 592 P.2d 74 (1979); Prather v. Colorado Oil & Gas Corp., 218 Kan. 111, 117, 542 P.2d 297 (1975). M & W’s president testified that El Paso “threatened” to issue promissory notes in lieu of full payment; that evidence, coupled with the fact that the parties hereto continued to enter into identical contracts after the dispute over repayment arose, negates any contention that El Paso voluntarily and intentionally relinquished a known right. The remaining issues have been examined and determined to be moot or without merit. Reversed and remanded with directions to enter judgment for M & W in the amount of $19,707.89 plus interest on the unpaid installments from the date they would have become due had the notes been issued in accordance with the contract.	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The opinion of the court was delivered by Valentine, J.: The defendant Abram Cutler was charged with violating an order of injunction. The injunction was granted by the judge of the district court at chambers, and the trial was had before said judge at chambers. . , , , . The first question, raised m this case is, with regard to the jurisdiction of the said district judge to hear and determine said charge. The constitution of this state provides that “The several justices and judges of the courts of record in this state shall have such jurisdiction at chambers as may be provided by law.” (Const., art. 3, § 16.) The law provides that the several judges of the district court may at chambers grant injunctions; (Gen. Stat., 675, §239;) and the law also provides that the several judges of the district courts may at chambers punish as for a contempt any person for disobedience of an injunction order. (Gen. Stat., 676, §247; id., 304, §2.) But it is claimed that the trial should have been by jury. Now, in the first place, the defendant did not ask for a jury; and he made no objection and took no exception , . . n . _ to the action of the judge in trying the case without a jury; and secondly, we hardly think that the constitution or laws ever contemplated that a jury should be impanneled in a case like this. It is true, that this kind of a proceeding is in the nature of a criminal prosecution, and perhaps might come within the words of § 10 of the Bill of Rights, and § 197 of the code of criminal procedure; but still it can hardly be possible that it was ever intended that a case like this, or any case for contempt, should be tried by a jury. Such a thing has never been done that we are aware of. We have never heard or read of a judge impanneling a jury to try a proceeding at chambers; and it was never the right of a party to demand a jury to. try a charge for disobedience to an injunction order. If a party has a right to demand a jury in this case, then every trial for contempt must be by jury, if a jury should be demanded. We do not now however choose to decide that a defendant in a case like this is not entitled to a jury if he should demand it; for the defendant in this case did not demand a jury. All that we now decide is, that the judge under the facts and circumstances of this particular case did not err in trying the case himself and without a jury. The proceeding was regularly tried under § 247 of the code of civil procedure. (Gen. Stat., 676.) The injunction was allowed and issued against the Republican, Salina & Arkansas Valley Railway Co., “its assigns, its agents, its employes, and any one acting by its authority or in its behalf,” and not against Abram Cutler by name. In fact, he was not a party to the suit when the injunction was granted. But afterward he became a party thereto on his own motion, and was a party to the suit at the time of the alleged breach of said injunction order. Evidence was introduced showing that he owned a majority of the stock in said railway company, that he was president of. the company, that he had leased the road from the company" for ninety-nine years, that he had and was to have the full control and management of the same for that period of time, and that he “ was to survey and locate the line of road of the said R., S. & A. V. Rly., and obtain the right of way and depot grounds of and for said railway in the name of the Republican, Salina & Arkansas Valley Railway Company, but under his own full direction and control, and at his own expense.” The injunction was granted to restrain the railway company, its assigns, etc., from constructing its road into or through the farm of Catherine Warry. The road was afterward so constructed, and we think the evidence shows that it was so constructed with the approbation, the approval, and even by order and under the direction of the defendant. The evidence also shows that the defendant had notice of the injunction. The question now arising is, whether the defendant under these facts can be held guilty of a violation of said injunction, the injunction not having been issued against him personally. We think it can. Persons may often be held liable for the breach of an injunction although not personally named in the injunction, nor even parties to the suit. (Thompson on Provisional Remedies, 331; High on Injunctions, §§ 859, 863, and see cases cited in brief for The State, in this case.) The proceeding for the violation of an injunction is a summary proceeding, and the charge may be tried upon the original affidavit filed in such proceeding, and not upon any formal pleadings. (Civil Code, § 247.) The “illegal testimony” complained of by defendant ÍS' not very specifically pointed out; and we have failed to discover any illegal testimony, duly excepted to, prejudicial to the defendant. We think there is sufficient evidence to sustain the finding of the judge of the court below. There may be some other questions in this case not raised by counsel’s briefs, but we do not wish to be understood as deciding anything not specifically mentioned in this opinion. The judgment of the judge of the court below is affirmed. All the Justices concurring.	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The opinion of the court was delivered by Bbeweb, J.: This was an action for damages for personal injuries. The facts as claimed are that defendant in error crossing Third street bridge in the city of Wyandotte was startled by a runaway horse, and stepping quickly one side to avoid him slipped her foot into a hole in the bridge, was thus thrown down, and injured. The jury found for the defendant in error, and assessed her damages at $1,200. The first error complained of is the giving of this instruction asked for by plaintiff: “The plaintiff's right to recover is not affected by her having contributed to her injuries, unless she was in fault in so doing.” .Counsel 0laims that this language is too sweeping; that the city is not an insurer against injuries upon its highways, nor responsible for every misfortune that may befall travelers thereon; and that under this instruction the jury might properly have considered the city liable for any injury Mrs. White sustained while upon its streets, no matter by what means it occurred. We do not think this criticism well founded. Every instruction must be considered in reference to the facts of the case, as well as in relation to the other instructions. Now, that Mrs. White received injuries by a fall upon the bridge, is undisputed, she testifying to the fact and no one contradicting her. As defenses, it would seem from the testimony offered, and instructions asked, that the city claimed that all the injuries from which she was suffering were not caused by this fall; that there was no defect in the bridge, and that the fall was a mere accident; that if any defect existed the city had liad no notice of it, and had taken all reasonable precautions to keep the bridge in good repair; and also, that the negligence of Mrs. White contributed directly to the injury. The jury found specifically in answ'er to certain questions that Mrs. White was injured by a fall caused by a defect in the bridge, and that she was at the time acting in a careful and prudent manner. Even if this instruction were too sweeping, as claimed, it would seem that any error in it was avoided by these answers. But the insfruction only refers to the matter of contributory negligence. It does not pretend to declare what constituted the plaintiff’s right to recover, or what facts must exist to create it. It simply declared- that her right to recover, upon whatsoever facts such right was based, was not affected by the fact that her own conduct contributed to the injury, unless some fault could be imputed to such conduct. If she was guilty of no negligence, her acts contributing to the injury did not destroy her right to recover. In other words, a party injured.need not be a passive recipient of the injury in order to establish a right to recover of the wrongdoer for the injury. Another alleged error is the refusal of the court to submit to the jury three questions of fact presented by the defendant. At the instance of the plaintiff, eight questions were submitted, and at the instance of the defendant four. Those refused were as follows: “ 1st.-Was the plaintiff injured, if at all, twenty steps from the north end of the bridge and about four or five feet from the east side thereof? “2d. — Was there any defect in the Third-street bridge twenty steps from the north end, or thereabouts, showing carelessness or negligence on the part of defendant? “3d.-Was the plaintiff frightened at the time the accident complained of happened?” Since 1870 it is the duty of the court, at the request of either party, to instruct the jury, if they return a general verdict, to find upon particular questions of fact, to be stated in writing, and direct a written .finding thereon. (Laws 1870, p. 173, §7.) But it does not follow from this that it is the duty of the court to submit to the jury every question that may be presented, and compel a finding on it. That, in some cases, and with some attorneys, would cumber the record with a fearful mass of useless stuff. Only those questions need be be presented that bear upon facts material to the issues, and whose answers may in some way control or affect a general verdict. It is useless to compel a jury to answer a question whose answer, whatever it may be, can have no bearing upon the general verdict. So also is it useless to submit a question at the instance of one party which has already been submitted at the instance of the other. In this case the jury were asked, at the instance of the plaintiff, this question: “Was the plaintiff materially injured by falling on Third-street bridge in the city of Wyandotte by reason of defect in said bridge on or about the 5th of August, 1871?” and answered “Yes.” They also answered in reply to plaintiff’s question that the bridge was defective or unsafe at the time, and that the defect had existed long enough for notice thereof to the city. The only point in which the questions of defendant differed from those of plaintiff was that in the former the inquiry was limited to a single spot on the bridge, while in the latter it extended to the bridge as a whole. If the jury having received the excluded questions had answered them in the affirmative, of course there would be no^pretense of conflict; if in the negative, nothing to disturb the general verdict, for if the plaintiff was injured by a defect in the bridge, it mattered nothing that such injury and defect were not at a particular spot thereon. It is true the plaintiff in her testimony located the place of injury at the spot indicated by defendant’s questions; but there was testimony tending to show the exist ence of defects elsewhere, and a party might easily be mistaken as to the exact point on the bridge at which an injury happened, while perfectly clear that such an injury did happen. So that there would be no such conflict between the testimony and the answers, and general verdict, as would compel the granting of a new trial, and no such conflict between the answers and the verdict as would in any way disturb the latter. Whether the plaintiff was frightened or no, could not affect the verdict in her favor. We think therefore the substantial rights of the city were not injured by the refusal to submit these questions. Plaintiff in error claims that no judgment for costs should have been rendered against the city, because no bill duly verified had been presented to the city council for allowance before suit was brought. The petition alleges, and in answer to one of the defendant’s questions the jury find, that such a bill was presented. It is true the bill presented was for only $600, while the amount sued for was $10,000, and the verdict and judgment $1,200. But if the city council fail to allow the' amount claimed in the bill presented, we know of nothing to prevent the claimant suing for and recovering all the damages sustained. While the testimony was conflicting, there was enough to sustain the verdict. The judgment will be affirmed. All the Justices concurring.	[ -16, 106, -43, -83, 72, 98, 34, 26, 81, -107, -76, 83, -115, -117, 13, 43, -9, -3, 81, 107, 83, -93, 7, -126, -42, -110, 115, -59, -77, 108, -12, -9, 77, 48, -54, -107, 102, 75, -43, 92, -114, -106, 10, -19, 73, 80, 56, 123, 4, 75, 113, -113, -13, 46, 24, -61, -88, 44, 107, 61, -14, -80, -56, 5, 127, 4, -77, 54, -66, -93, -38, 40, -104, 49, 1, -72, 115, -74, -125, -44, 105, -117, 76, 98, 98, 33, 13, 111, -72, -71, 46, 116, -115, -89, 2, 24, 75, 41, -73, -99, 101, 80, 7, 124, -6, 92, 29, -24, 3, -50, -106, -79, -17, 44, -108, 103, -57, -125, 22, 113, -50, 104, 93, 4, 51, -101, -97, -66 ]
The opinion of the court was delivered by Valentine, J.: Counsel for defendant in error, plaintiff below, says that “there are but two questions in this case: First, What salary is the county superintendent of public instruction entitled to in Jefferson county from September 1st, 1871, to January 1st, 1873? Second, Was the claim presented by defendant in error to the county board ‘for all his dues in full,’ and if so can the verbal agreement of plaintiff and defendant that it should not be in full be offered in evidence?” I. The defendant in error was county superintendent of public instruction for Jefferson county from September 1st, 1871, to January 1st, 1873, and for that time the county board paid him as salary $1,600, or at the rate of $1,200 per annum. The county board claims that this was all that the defendant in error was entitled to receive, but he claims that he was entitled to receive a salary at the rate of $i,500 per annum. The statute provides that “county superintendents of public instruction of counties reporting three thousand and less than five thousand children over the age of five and under the age of twenty-one years, shall receive a salary of twelve hundred dollars per annum; and county superintendents of public instruction of counties reporting five thousand children and over, of school ages, shall receive a salary of fifteen hundred dollars per annum: Provided, That in the above enumeration incorporated cities shall be excluded.” (Laws of 1869, page 174.) It seems to be admitted that under the above proviso cities of the first class and cities of the second class are to be excluded from the enumeration in determining the salaries of county superintendents; but it is claimed that cities of the third class are not to be so excluded. The reasons for this claim seem to be as follows: 1st, There were no cities of the third class when the act.fixing the salaries for county superintendents was passed and took effect. 2d, When cities of the third class were organized they still remained under the superintendency of county superintendents. If cities of the third class are to be excluded from said enumeration, then the defendant in error is entitled to receive only $1,200 salary per annum; but if such cities are to be included in the enumeration, then he is entitled to receive $1,500 salary per annum. We think they are to be excluded. The salary-act provides that all “incorporated cities shall be excluded.” Now cities of the third class are unquestionably “incorporated cities.” They are as much so as any other class of cities. They are not only so by virtue of the powers, privileges, franchises and immunities granted to them, but they are so by virtue of positive and specific enactment. The act incorporating them provides that “each city governed by the provisions of this act shall be a body corporate and politic.” (Laws of 1869, p. 80, §4; Laws of 1871, p. 122, §13.) The first act incorporating cities of the third class was passed by the same legislature that passed the act fixing the salaries of county superintendents; and it was passed three days earlier. Hence the legislature must have known at the time they passed the act fixing the salaries of county superintendents that “incorporated cities” of the third class would soon come into existence. And hence, as they used language in said proviso broad enough to exclude all incorporated cities, they must have intended to exclude cities of the third class as well as other cities from said enumeration. It can hardly be supposed that the legislature, when they used said language excluding all incorporated cities had forgotten what they had done only three days before that time. We suppose it will hardly be urged seriously that said proviso had relation to such cities only as were in existence at the time when the act in which said proviso is found was passed; for if such construction should be put upon said proviso, then all cities of the second class organized since the passage of said act would have to be included in the enumeration in determining the amount of the salary of county superintendents. Besides, upon general principles of construction said proviso could not be so construed. It does not purport to have been passed for the present only. Its operation is not limited by the language in which it is couched to things as they existed at the time of its passage. On the contrary it was clearly enacted for the future. It was clearly intended to operate upon things as they should exist when its operation could be called practically into effect. And laws are generally passed for a future state of things, and not for the present merely. If the salaries of the county superintendents of some of the western counties of this state were to be determined by the number of school children within their respective counties at the time said act was passed, instead of at the present time, their salaries would certainly not be very large. But such a construction cannot be put upon said act. We suppose it is hardly necessary to consider the other question raised in this case. The defendant in error having been paid in full for his services as county superintendent, we suppose it will make but little difference whether he and the county board had a verbal understanding or not that he was not paid in full. The judgment of the court below is reversed, and cause remanded for further proceedings. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: This was an action in the district court of Cloud county upon a forfeited recognizance. As the record fails to show affirmatively that all the evidence is preserved we must presume that there was sufficient to sustain the general finding in favor of the plaintiff So that the only questions before us arise on the overruling of a demurrer to the petition, and the effect of a fact admitted by the county attorney upon the trial. The petition alleges no proceedings prior to the information. It alleges the filing of an information charging Hezekiah Jennings with the crime of grand larceny. It does not aver a prior arrest, a preliminary examination, nor a waiver oí one. Hence counsel claim that the petition fails to show that the principal defendant was legally in custody, or that any recognizance could lawfully be required of him. This is a mistake. Under some circumstances an information may be filed without prior proceedings. (Gen. Stat., 832, §§ 69, 71; Laws 1871, page 279, § 2.) If a party pleads to an information and goes to trial upon it, he cannot thereafter claim a discharge from custody, or an arrest of judgment, because of the want of a prior examination. So where a petition alleges the filing of an information by the proper officer, in the proper court, the continuance of the case, and an order of the court requiring the defendant to give bail or be committed to the custody of the sheriff, it will be presumed that the information was.filed under such circumstances as warranted its filing. Greater fullness seems unnecessary. (Mix v. The People, 26 Ill., 32.) A second objection is, that the warrant to the sheriff is not signed by the judge, but is signed by the clerk and attested bv the seal of the court. It is right as it is, and would not be right it as counsel claims it ought to have been. The order is the order of the court, and not of the judge. The warrant is the process of the court, and should be under the seal of the court, and signed by the clerk. (Gen. Stat., 768, § 700; p. 770, § 716; Gen. Stat., 840, § 126.) Again, it is urged that the warrant does not show where the crime was charged to have been committed, nor indeed does that fact appear anywhere in the petition. qqie information is not copied into the record, and we must therefore presume that it sufficiently and fully charged a crime of which that court had jurisdiction. The warrant might properly refer to the filing of the information, and then a mere statement of the character of the crime charged would be sufficient. It is not necessary that each paper in a criminal case show all the proceedings in a cause, or disclose the facts necessary to give the court jurisdiction. (Redmond v. The State, 12 Kas., 172.) A fourth' objection is, that the instrument sued on is in form a penal bond, rather than a recognizance. This ques tion has already been settled in this court. (Ingram v. The State, 10 Kas., 630.) It was admitted by the county attorney that the recognizance had not at the time of the forfeiture been filed or recorded, as required by § 144, criminal code, Gen. Stat., 842. This omission did not invalidate the instrument. It is an irregularity merely, one which under § 154 of the criminal code would clearly not affect the right pf recovery'. Again, it is objected that the recognizance is void because of a misdescription of the court. It is described as “the twelfth judicial district court, sitting in and for tbg county of Cloud.” The only possible objection we can see to this description is, that it is unnecessarily full. It describes the court correctly, though it would probably be sufficient to call it “the district court of Cloud county.” There are some other points urged by counsel, but we think, under the liberal rule prescribed by § 154 above cited, none of them are sufficient to defeat a recovery upon this recognizance. Counsel for plaintiffs in error has been very diligent, and collected numerous authorities, and presented his points with clearness and force, and under the old rules which obtained prior to the enactment of said §154 might properly have expected a different decision from this court. But language could hardly be more sweeping and comprehensive than that of §154. It has at one blow swept away, so far as this state is concerned, nearly the entire accumulation of authorities on the matter of recognizances. It has, as we think, introduced a truer and better rule,' and one which will tend to promote the interests of justice. The judgment will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: Plaintiff in error, plaintiff below, presented an account to the board of county commissioners of Crawford county for rent of offices, etc. The board disallowed the account. He appealed. By change of venue the case was transferred to the Bourbon district court. On September 19th, 1871, both parties appeared in open court and by consent a journal entry was made postponing the case for two days and until September 21st. On September 21st the defendants failed to appear, and judgment was rendered in favor of the plaintiff. On January 22d, 1872, the judgment was assigned by assignment on the margin of record to E. Playter. On February 26th, 1872, defendants filed their motion supported by affidavit to vacate and set aside such judgment. Of this motion notice was served on E. M. Hulett, the attorney of record of said plaintiff, and service accepted by him as such attorney. When the motion came on to be heard neither the plaintiff nor his attorney appeared; the motion was sustained and the judgment vacated and set aside. At a subsequent term plaintiff made his motion to set aside said order vacating and setting aside the judgment. This motion was overruled. New pleadings were filed, the case tried, and judgment rendered for defendants. To reverse this judgment plaintiff now brings this proceeding in error, and the principal question for our consideration is, the action of the court in vacating and setting aside the judgment of Septem ber, 1871. The application therefor was by motion. It was made under the third clause of §568 of the code, the section that authorizes district courts to vacate or modify their judgments at or after the terms at which they aré rendered. This third clause reads, “ For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.” A subsequent section provides that an application under this clause shall be by motion. The facts, as disclosed by the motion and accompanying affidavit, are, that at the September Term, and prior to the taking of the judgment, the plaintiff and defendants agreed upon a continuance of the case to the subsequent term, communicated this agreement to the clerk, and instructed him to make a journal entry thereof, and that relying upon such agreement the defendants’ attorney left the court and returned home. Judgment was, notwithstanding such agreement, and in the absence of the defendants, taken by the plaintiff. ' It will hardly be doubted that a court might properly set aside a judgment rendered under such circumstances. Counsel for in error insists that there is a rule of the district court which provides that “no verbal agreement of counsel or parties with each other, or an officer of the court, concerning 1¡he progress or management of a cause or proceeding will be enforced unless made in open court.” No such rule appears in the record, and we do not take judicial notice of the rules of the district courts. Even with such a rule it would not follow that a court was bound to tolerate so gross a breach of faith. The rules are designed to prevent injustice, not to further and accomplish it. The question is not, whether the court would have erred after notice of such a parol agreement in compelling the plaintiff to go to trial, but whether a party after making such an agreement can be allowed in a court of justice to profit by breaking it. Counsel insists that no sufficient notice was given of this motion. The notice was served on E. M. Hulett, who was counsel of record for plaintiff, and service was accepted by him in writing as such counsel. There was no appearance ot plaintift to the motion. Prior to the service of notice the judgment had been assigned of record to Frank Playter. Upon the motion to set aside this order vacating the judgment the affidavit of E. M. Hulett was filed, stating that when he accepted service of notice of the prior motion he told the defendants’ attorney that he was not attorney in the case, and that when the motion was called he stated to the court that he had no employment of record in the case, and would not appear to the motion. Mr. Hulett’s name appears signed to the petition as attorney for the plaintiff; nor do we understand the affidavit as asserting that it was wrongfully there, or that he did not appear at the trial as the plaintiff’s attorney. We understand rather that since the assignment he did not consider himself as attorney in the case, or as representing the assignee of the judgment, the real party in interest. This, it is true, is not stated in the affidavit, but seems to us the explanation most consistent with the good character of the parties concerned. It might be a question under the statute whether any further notice was requisite, notwithstanding Mr. Hulett’s disclaimer, and whether notice to the assignee was essential. But we do not care to investigate that question. The facts may not be all before us. The record fails to show that this affidavit of Mr. Hulett was the only evidence used on the motion. It may have been clearly shown that the assignee had actual notice of the motion, or indeed that he appeared to the motion, or that the assignment was not bona fide, or for value, or that Mr. Hulett was in fact fully authorized to appear for the assignee. It is useless however to speculate. It is enough that we can see that there might have been at least one .satisfactory answer to the facts stated in the affidavit. (Backus v. Ciarle, 1 Kas., 303; Altschiel v. Smith, 9 Kas., 90.) Subsequent to these proceedings amended pleadings were filed, both parties appeared by their counsel, a full and fair trial was had before a jury, and a verdict returned for the defendant. We are not willing to set aside a judgment rendered after such a trial in which both parties participated, and affirm one based upon an ex parte hearing, unless upon a clear showing of error. Complaint is also made of the proceedings upon the trial, of the admission of evidence, of the instructions, and that the verdict is against the evidence. None of these objections are well taken. There was no error in the admission of the testimony. The county commissioners were allowed to testify as to what oral propositions had been made to them by plaintiff. No action of the board was thus shown, but simply the statements of the plaintiff. And whenever any parol testimony was sought as to the action of the board upon such propositions it was promptly ruled out. We think this amounted to nothing more than showing the statements and admissions of plaintiff, and as such was competent. It is urged that the court misdirected the jury as to the amount that the plaintiff might recover under the pleadings and testimony. As the jury found for the defendants this error, if error it were, cannot have wrought any prejudice to the plaintiff. (Branner v. Stormont, 9 Kas., 51.) There was testimony sufficient to support the verdict. The judgment will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: Plaintiffs in error commenced an action against defendant in error before a justice of the peace, and at the same time sued out an order of attachment. There after, upon motion of the defendant and hearing, as provided for in § 53 of the justices act, the order of attachment was discharged by the justice, but a judgment was rendered in favor of the plaintiffs for the amount of their claim. From this judgment they appealed, and filed an ordiJ ° , . J . . . . 1 nary appeal bond, reciting the judgment, etc., but making no mention of or reference to the attachment or its discharge. On the trial in the district court they obtained a judgment, as before the justice, for the amount of their claim, and then asked for an order of sale of the attached property. This was refused. They then asked leave to amend the appeal bond, so as to show that they appealed from the order discharging "the attachment. This also was refused, and they were taxed with the costs of the appeal. Upon these facts' two questions arise: First, Did the appeal from the judgment bring up for review, or retrial, the proceedings in attachment? Second, If not, ought the district court to have allowed an amendment of the appeal bond? Both of these we think must be answered in the negative. The attachment is but an ancillary proceeding, and may stand or fail without affecting the progress of the suit. The judgment is rendered for or against the plaintiff, and upon the sufficiency of his cause of action, without reference to the disposition of the attachment. Boston v. Wright, 3 Kas., 230. It was of the judgment the plaintiffs complained in their appeal bond, and that only which they sought to change. If they sought a review of the attachment proceedings, something more than an appeal from the 'judgment on the merits of the case was necessary. While the district court has ample power to permit an amendment of the appeal bpnd, when insufficient in form or amount, (Justices Act, §131,) yet an amendment .g no^ a mafter 0f right, upon which in all cases of insufficiency a party may insist. The court must exercise a sound discretion in deciding whether, under the circumstances of the particular case, the party should be allowed to amend. In this case we cannot from anything before us see that the court improperly refused the application for leave to amend. The attachment had been discharged by the justice. For aught that appears the property attached had been returned to the defendant, and by him wholly disposed of. No notice had been given of an intention to retry the question of the attachment. It might be that if the attachment was brought up for retrial, and sustained, an unpleasant question would arise as to the responsibility of the constable for not having the goods in his possession. It is useless, however, to speculate. It is enough that the record fails to show that the court abused its discretion. The costs of the appeal were properly taxed to the appellant. (Justices Act, §128.) The judgment will be affirmed. It is understood that the same questions arise in the case of Eames, Crampton & Eberle against this defendant in error, and the same judgment will be entered in that case. All the Justices concurring.	[ -112, 124, -67, 62, -118, -32, 34, -40, 65, -95, -89, 83, -81, -29, 0, 105, 113, 41, 117, 122, 94, -73, 23, -61, -10, -77, 18, 85, -79, 125, -26, 22, 12, 48, 66, -43, 70, -54, -59, 84, -50, -121, 25, 77, -23, 106, 48, 59, 22, 71, 113, -36, -29, 44, -104, 83, 73, 41, 106, 61, -48, -7, -119, 13, 91, 4, -77, 21, -100, 71, -40, -92, -112, 49, 3, -24, 114, -74, -122, 52, 97, -101, -88, 102, 98, -127, 109, -21, -72, -88, 38, -34, 47, -89, -110, 24, -55, 1, -74, -99, 109, 6, -121, 124, -22, 85, 95, 108, 14, -54, -108, -73, -113, 80, 24, 67, -17, -125, 16, 97, -51, -96, 92, 102, 17, -69, -50, -102 ]
The opinion of the court was delivered by Bbeweíí, J.: Plaintiff in error, plaintiff below, brought his action against the defendants upon a promissory note. The petition was in the ordinary short form. The defendants, or rather the two of them who were served, filed an answer with several defenses. To these a demurrer was filed, which was overruled as to the second, third, fourth, sixth and seventh defenses. To reverse this ruling on the demurrer plaintiff brings this proceeding in error. The second defense which presents the substantial merits of the controversy is as follows. It appears from the petition, it should first be stated, that the defendants were partners under the firm-name of Bancroft Bros. & Co.; that the note sued on was a partnership note, dated Dec. 28th, 1868, and due in one year. Now the second defense in the answer alleges that this note was the only indebtedness of the defendants to the plaintiff; that in March, 1870, the firm entered into an agreement with all their creditors, including the, plaintiff, which agreement is then recited in full. It is this in substance: The creditors make with the members of the partnership “the arrangement following for the settlement of their claims respectively against said partnership and its members.” The partners shall at once transfer to a trustee certain specified property in trust for said creditors. The trustee shall proceed without delay to convert the same into money, and, after paying the expenses of the trust, pay the same pro rata to the creditors, “ until the satisfaction of their claims,” and the residue return to the partners. Harvey Bancroft, one of the firm, shall also at once execute a mortgage on certain specified property to said trustee in trust for said creditors, conditioned that he will in three equal annual payments pay said creditors or said trustees for said creditors “any balance of their said claims which the said other property and assets, and the proceeds thereof, shall be insufficient to pay;” and then follows this stipulation: “ The foregoing conditions being complied with, we agree to extend the time of the payment of our claims, one-third in one year, one-third in two years, and one-third in three years,” which agreement was signed by all the creditors. The defense also alleges that defendants conveyed the property to the trustee as required, that the trustee^ received the property and accepted the trust, and that Harvey Bancroft executed the mortgage as stipulated in the agreement. The question then arises as to the effect of this agreement. Was it simply an extension of time by the creditors, or did it change the form of the debt, and the person of the debtor? Counsel for de fendant in error claim that the intention of the parties, as expressed by the instrument, was — “ 1st, That the defendants should convey certain property specifically described in the instrument to the trustee therein named. “2d, That the defendant Harvey Bancroft and his wife should make and deliver to this trustee a mortgage upon certain property mentioned and described, which was to be conditioned that the defendant Harvey Bancroft should pay all of the indebtedness of the partnership which the property transferred to the trustee should be insufficient to pay. “3d, That the creditors (including plaintiff in error,) would thereupon release their several claims as against the defendants respectively, and look only to the trust fund in the hands of the trustee for the payment of their several claims, and to Harvey Bancroft for any balance that might be due to them on their claims after the trust fund had been exhausted in the payment of their claims. “4th, That the trustee should dispose of the property thus to be transferred to him without delay, and apply the proceeds pro rata to the payment of the various claims of their creditors until such claims should be satisfied. “ 5th, That in case this trust fund should be insufficient to pay the full amount due to each creditor out of it, the creditors should postpone the payment of this deficiency so that Harvey Bancroft would be obliged only to pay one-third of it in one year, one-third in two years, and the remaining third in three years.” Counsel also alleges in this second defense that such was the understanding and agreement of the parties. The contract speaks for itself. The parties have reduced their agreement to writing, and that writing is the best evidence of their agreement. True, if the contract is fairly susceptible of more than one construction, that which is alleged to be the true construction and the intention of the parties will be taken to be correct when the question arjses on demurrer. (Craft v. Bent, 8 Kas., 328.) But this rule does not apply when the contract is clear and unequivocal. Then an allegation that so and so was the intention and understanding of the parties, will be held for naught, as against the obvious import of the language. Now we fail to see in this contract anything which directly or by implication contains any such stipulation as appears in the third paragraph of the quotation from counsel’s brief. There is certainly no express stipulation to release any one, or to look to any particular fund or funds for payment. On the contrary, the simple agreement of the creditors is, to give an extension of one, two and three years. That which the debtors were to do is plainly stated, and then as plainly is it said, “the foregoing conditions being complied with, we agree to extend the time of the payment of our claims,” etc. That which each party was to do appears as clearly and plainly as language can make it. The one was to secure, the other extend. Counsel lays some stress on the use of the word “ settlement” in the first clause of the agreement, which is as follows: “The undersigned, creditors of the late co-partnership of Bancroft Bros. & Co., of Columbus, Ohio, make with the members of said partnership the arrangement following for the settlement of their claims respectively against said partnership and its said membersand argues, that as it could' not mean arrangement of accounts so as to ascertain the balance due, it must mean payment in full. The word “settlement” is not necessarily used with either signification. There would be no impropriety in its use in reference to just such a transaction as is disclosed here. The creditor extends time and obtains security. He may properly say he has thus settled his claim. He has made a new arrangement in reference to it. But whatever force the word “settlement” might have, standing by itself, it is here qualified by preceding language. The creditors make “the arrangement folloimng for the settlement,” etc. This refers us to the stipulations following to ascertain what kind of a settlement they did make. It is to them we must look to determine the nature of the agreement and the rights of the parties. Counsel claims that such a construction makes the contract strange, harsh and inequitable. It does not seem so. The defendants were in debt. Some of those debts were due. As to the others we are not advised. They had some property which was liable for those debts. It was their duty to pay them, and to use their property therefor. To convert property into money by judicial proceedings always involves considerable waste. They surrendered certain property absolutely, and gave other as security, whether adequate or not we are not advised, and obtained a considerable extension of the time of payment. This is certainly no small consideration to men in business. The contract might or might not be a generous one on the part of the creditors. If the value of the property surrendered and mortgaged was but a small per- cent, of the indebtedness, then the contract was a very liberal one; if greater than the indebtedness, not so much so. But it is useless to speculate as to which party profited by the agreement. It is enough for us that both parties entered into it, and are bound by its terms. We think the contract clear and unambiguous; that the claim sued on was not extinguished or released as to any of the debtors; that the only stipulation of the creditors was to grant an extension; and as this action was not commenced until more than three years after the date of the agreement, nothing in this second defense discloses any defense, and the demurrer to it should have been sustained. In the third defense of the defendants’ answer they set up that by the terms of the written agreement set out in the second defense of their answer, all of the creditors of the defendants, including the plaintiff, Amos Bobb, expressly agreed with defendants that upon defendants complying with the terms of said agreement that the creditors (parties to said agreement) would thereupon cause William Jamison, the trustee mentioned in said agreement, to sell and dispose of all the property, notes and accounts, and all the merchandise assigned to him, and to pay the proceeds thereof pro rata to all of said creditors, including the plaintiffs; and that the plaintiff and the other creditors agreed to accept and receive any and all such pro rata payments and apply the same as a full payment to the amount of such pro rata payments; and that said creditors, including the plaintiff, would in no event and under no circumstances attempt to enforce the payment or collection of their claims until after Jamison should have sold all of the assets transferred to him, and applied the proceeds of such sales pro rata to the payment of all said creditors ; and that the said creditors, including the plaintiff, have “failed, neglected and refused to have or compel the said Jamison to sell and dispose” of the assigned property, or collect the bills and accounts and apply the proceeds thereof pro rata to the payment of said claims, and -that said Jami-son has wholly failed, neglected and refused to 'convert said property into money and apply the proceeds upon said claims, and all this without any fault on the part of the defendants or either of them. This, it will be seen, simply sets up another statement of the intention of the parties to the agreement previously recited, an intention of which we fail to gather any intimation from the agreement itself. Surely, we search in vain to find in that instrument any express agreement to wait till the trustee has fully executed his trust, or to supervise his conduct and compel him to execute the trust, or even to be responsible for his negligence, delay or misconduct. "Whatever implications there might be, there is nothing expressed. The demurrer was improperly overruled. In their fourth defense the defendants allege that the plaintiff has received from Jamison large sums of money as pro rata payments on the note in addition to the amounts for which the plaintiff has given credit to the defendants, and that the plaintiff has neglected and refused to credit such payments upon the note. The plea further alleges that the amounts of such payments are wholly and solely within the knowledge of the plaintiff and Jamison. We see no objection to this defense, at least none that can be considered on a demurrer. It alleges partial payments in excess of those admitted, and if true, reduces the amount to be recovered. Because the defendants are ignorant of the amount actually paid they are not thereby deprived of the benefit of such payments, or the right to prove as large an amount as possible. The demurrer to this count was properly overruled. The sixth defense in the defendants’ answer alleges that the plaintiff must first deliver and return to the defendants all of the money that he has received from Jamison, and not credited upon the note, and also release, assign or return to the defendants all right, title and claim or interest the plaintiff may have in or to any of the property assigned by the defendants to Jamison on the 11th of March, 1870. Or in other words the claim is, that a creditor having a note which is secured must, before he can maintain an action at law on the note, release and return the security. We do not so understand the law. The creditor may ignore the security altogether and sue upon his note. Of course, whatever money has been realized from the security is a credit on the note; and if after the note, or the judgment rendered thereon, has been fully paid, the creditor still holds any security, he may be compelled tc¡ release and return it. Perhaps also in some cases equity might interfere and compel restitution before or at the time of payment, but we doubt whether equity would ever make the release of the security the prerequisite to an action on the debt. The demurrer was improperly overruled. The seventh plea of the defendants alleges that the property transferred and delivered by the defendants to Jamison was and is sufficient in value to have paid any and all of the indebtedness of the firm of Bancroft Bros. & Co., and also the expenses of carrying out the terms and conditions of the assignment. We need hardly comment upon this defense. For reasons already fully suggested it was insufficient, and the demurrer to it ought to have been sustained. The judgment of the district court in overruling the demurrer to the second, third, sixth, and seventh defenses set up in the answer, will be reversed; and in overruling the demurrer to the fourth defense will be affirmed. The costs of this court will be divided. . It is understood that the same questions are in the succeeding case of Israel M. Bobb against same defendants, and the same order will be made in that as in this. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: Portions of this litigation have been brought to -this court at least six times. Four cases have been reported, to-wit: Wheatley v. Tutt, 4 Kas., 195; Wheatley, et al., v. Tutt, 4 Kas., 240; Wheatley v. Terry, 6 Kas., 427; and Ferguson v. Tutt, 8 Kas., 378. One case was dismissed, to-wit, A. B. Bartlett v. Wheatley, et at.; and this is the sixth case. Other cases were litigated in the court below, which have not been brought to this court. In this opinion we shall mention such cases only as have some bearing upon the case now before us. In the investigation of this case it will be necessary to examine more particularly the rights of said Thomas E. Tutt, Dent G. Tutt, and John F. Baker, than those of most of the others, as they are the real parties in interest in asking to have the judgment of the court below in this case reversed. The record upon which this reversal is asked shows as follows: On September 9th, 1861, an action was commenced by Thomas E. Tutt, Dent G. Tutt and John F. Baker against Wilkins T. Wheatley and Thomas F. Thatcher. An attachment was issued therein and levied on Lot 5, in Block 6, in the city of Wyandotte. Judgment was rendered in the case on April 10th, 1863, in favor of Tutts and Baker and against Wheatley & Thatcher for $1,483, and costs, and said lot was ordered to be sold. Afterward the undivided-half of said lot was sold at sheriff’s sale to Tutts and Baker for the sum of $1,667, and the sale was.confirmed October 5th, 1863. Tutts and Baker took a sheriff’s deed for said undivided-half of said lot, and the sheriff returned the writ for the sale of said property satisfied. Afterward the confirmation of said sale was reversed by the supreme court, (Wheatley v. Tutt, 4 Kas., 195,) and the mandate from the supreme court was filed in the district court at the January Term (so the record shows, but qucere,) 1867. Nothing seems to have been done with said case, or concerning it, since. ■ Hence we suppose Tutts and Baker have lost their judgment-lien, (code of 1859, §434; code of 1868, §445,) and have also lost their interest in the lot, (code of 1859, §458; code of 1868, §467.) On May 20th, 1865, another suit was commenced in which Michael Dively, Edward McCarty and Edmund Terry were plaintiffs, and Wilkins T. Wheatley, Thomas F. Thatcher, Moses M- Brodwell, The Great Republic Insurance Company, Thomas E. Tutt, Dent G. Tutt, John F. Baker, John M. Chrysler, Gabrilla H. Wheatley, Mary Thatcher and Isabella Chrysler were defendants. This action was on a note given by Wheatley & Thatcher to Brodwell, and indorsed by Brodwell (waiving presentment, notice, etc.,) to Terry. The action was also to foreclose a deed of trust given by Wheatley and wife (to-wit, Gabrilla Wheatley,) to Dively & McCarty, trustees, on the undivided-half of said Lot 5 to secure the payment of said note. Hence Terry was the real plaintiff, and Dively and McCarty were merely nominal plaintiffs. The defendants Tutt & Tutt and Baker seem to have set up their claim against said Wheatley '& Thatcher, and their interest in said Lot 5. Judgment was rendered October 10th, 1865, in favor of Terry and against Wheatley & Thatcher for $2,317.90, and costs. The court found that Terry’s lien on said lot was prior to that of Tutts and Baker, and ordered that if said judgment was not paid in ten days said undivided-half of said lot should be sold to pay, first, the costs, next, Terry’s judgment of $2,317.90 and interest, and then that the remainder should be paid to Tutts and Baker, and that all the parties’ interests in said undivided-half of said lot should be forever afterward barred and foreclosed. It seems from the record that on October 20th, 1865, (precisely ten days after the judgment was rendered,) Brodwell paid to Terry in New York city the precise amount of Terry’s judgment, (less costs and interest,) to-wit: $2,317.90. Yet, strange as it may seem, nobody knew of- this payment, except possibly Brodwell and Terry, until about six years afterward. After this supposed payment Terry’s counsel, to-wit, Bartlett, filed a precipe in the district court for an execution on said judgment. The clerk of the district court, said James A. Cruise, issued it; and the sheriff of said county, said P. S. Ferguson, sold the said property under it to said M. M. Brodwell, the person who, it is said, paid said judgment. But Brodwell failed, however, to make payment on said sale, and the sheriff therefore returned no sale. Upon this execution however the sheriff collected from Chrysler about $125, which was sufficient to pay all the costs. An alias execution was then, on May 24th, 1866, issued by said clerk (on the precipe of Tutts and Baker) to said sheriff, and the sheriff then sold said property, (the undivided-half of said lot,) on July 14th, 1866, to said Bart lett for $4,500. The sheriff returned that said amount of $4,500 was paid by Bartlett, although in fact it never was paid. The sale was confirmed on November 1st, 1866. No sheriff's deed was ever executed to Bartlett under this sale, although it seems that Bartlett afterward claimed to own the property, and afterward, on January 21st, 1868, sold the property to one John Arthur for $4,500. Arthur still claims and has possession of the property. Bartlett now claims “ that he did have an interest in said property derived from another source in no way connected with this matter.” On June 16th, 1869, counsel for Wheatley and Thatcher, to-wit, J. P. Usher, moved the district court to set aside said sale, and to set aside said confirmation, on the ground of irregularities, to-wit, “because said sale was not duly advertised nor was made in conformity to law.” No notice of this motion was given to any one except Bartlett and Ferguson, and no one else appeared on the hearing of the motion. There are some mistakes in this motion in the title of the case, in the number of the case, etc.; but still we are inclined to think it was sufficient as to Bartlett and Ferguson, who voluntarily appeared to answer to it, and would perhaps have been sufficient as to any one if notice had been given. The motion was overruled at the June Term 1869 of the district court. On July 8th, 1869, Wheatley and Thatcher alone proceeded by petition in error in the supreme court against said Terry alone for the purpose of reversing the said rulings of the district court. And at the July Term 1870 the supreme court reversed said rulings of the district court. (Wheatley v. Terry, 6 Kas., 427.) The mandate from the supreme court ordering the reversal was filed in the district court on March 24th, 1871. Counsel for Terry, J. P. Usher, (so the record shows, though probably it should have said counsel for Wheatley and Thatcher,) moved the district court to allow said mandate to be filed among the papers of the case, and to set aside the order confirming said sale in accordance with said mandate. The district court however never took any action upon the motion, or the mandate, except to order the mandate to be filed. Previously, however, to-wit, on March 6th, 1871, counsel for Tutts and Baker filed a motion in the district court “for leave to file additional evidence of the publication of the advertisement of the time and place of” said sheriff sale, etc. And on the said 24th of March, 1871, said motion was sustained. Additional evidence was then introduced showing that the sale was regularly made. The notice was all regular, showing that “Lot No. 5” would be sold on the 14th of July 1866, and was published regularly for five weeks before the sale, while the notice appended to the sheriff’s return, and brought to the supreme court, was an irregular notice that had been previously published for two weeks only, and then discontinued, when the said regular notice was inserted in the newspaper in its place. This irregular notice stated that “Lot No. 2” would be sold on June 30th, 1866. It should not have been annexed to the sheriff’s return, nor should it have been used in the case; and if Tutts & Baker had received any notice of any motion, or any proceeding in any court to set aside said sheriff sale, they would probably have had said irregular notice stricken out, and the regular one inserted in its place. Or if the sheriff had done his duty in the first instance, and inserted the regular notice instead of the irregular one, no such motion or proceeding would have been instituted. Or even after said motion was made, if the sheriff, instead of making a voluntary appearance to the motion as he did, and waiving all .objections thereto, and consenting that it should be heard instanter-, had asked the court to allow him to amend his return in accordance with the facts, said sale would not have been ordered to be set aside by the supreme court, as it was, or by any other court. For the district court would have allowed the sheriff to make such amendment, and then the return would have shown the sale, the notice, etc., to have been regular, and the supreme court would have sustained it. It now seems that Terry, and his counsel, (Bartlett and Usher,) and the purchaser Bartlett, as well as Wheatley and Thatcher, the prin cipal defendants in that action, all wanted the sale to be set aside. The money for the payment of costs, officers’ fees, etc., had already been collected from Chrysler without any sale of said lot. Hence the officers as well as others entitled to costs had but very little interest in the matter. This leaves Tutts & Baker as being about the only persons who were particularly desirous that said sale should not be set aside, and yet no notice was ever given to them of any proceeding in either the district court or the supreme court instituted for the purpose of having said sale set aside or vacated. It is a general rule of equity, (and the casé at bar is an equity proceeding,) that he who seeks equity must do equity. Good faith must be practiced as,well by the person who seeks equity as by the person from whom equity is sought. On February 7th, 1868, Thomas E. Tutt, Dent G. Tntt, and John F. Baker commenced an action against P. S. Ferguson, sheriff, and John E.. Zeitz, Isaiah Walker and James A. Cruise, sureties on the official bond of said sheriff, to recover from said sheriff and his sureties the amount , which said sheriff collected or ought to have collected from Chrysler and Bartlett on the last-mentioned judgment after deducting the amount it would take to pay the judgment in favor of Terry and costs. In June, 1869, judgment was rendered in this case in favor of Tutts and Baker, and against Ferguson and his sureties, for $2,350, and costs. This case was taken to the supreme court by Ferguson and his sureties, and at the July Term 1871 of the supreme court the judgment of the court below was affirmed. (Ferguson v. Tutt, 8 Kas., 370.) In October, 1871, an execution was issued for the collection of this last-mentioned judgment, and following said execution the following proceedings were had: On December 30th, 1871, the present action was commenced by Pembroke S. Ferguson, James A. Cruise, John E. Zeitz, Isaiah Walker, Moses M. Brodwell, and Allison B. Bartlett as plaintiffs, against Thomas E. Tutt, Dent G. Tutt, John F. Baker, Wilkins F. Wheatley, Thomas F. Thatcher and Edmund Terry as defendants, for the purpose of forever enjoining the collection of the judgment rendered in favor of Tutts and Baker and against Ferguson and his sureties on said sheriff’s bond; and on June 17tb, 1872, judgment was rendered in the district court perpetually enjoining the collection of said judgment, as prayed for by the plaintiffs below, (defendants in error in this court,) Ferguson and the others. This judgment was rendered upon the ground solely that said sheriff sale to Bartlett was void, and the reasons given why it was void are as follows: First, the Terry judgment had been paid before said sheriff sale was made; second, said sheriff sale was ordered to be set aside by the supreme court. First. The said Terry judgment was paid on October 20th, 1865. The judgment on the sheriff’s bond, now sought to be perpetually enjoined, was rendered in June, 1869, nearly four years after said payment was made. The judgment in the case at bar perpetually enjoining the last-mentioned judgment was rendered June 17th, 1872, nearly seven years after the payment of said Terry judgment, and about, three years after the judgment was rendered now sought to be enjoined. Now if the fact.of the payment of said Terry judgment is a good ground for enjoining the said judgment on the sheriff’s bond, then, a fortiori, it would have been a good ground for not rendering said judgment on the sheriff’s bond. In other words, said payment would have been a good defense to the action in which said judgment on the sheriff’s bond was rendered. But it was not interposed in that action. Why not? The principal defendants in the court below, except Ferguson, (who did not testify in the case at bar,) testified that they did not know of said payment at the time said action was pending, nor at any other time since up to about the time of the commencement of this action, which was December 30th, 1871, over six years after said payment was made. But why did they not know it? Did they exercise any diligence in hunting up their defenses? Were they not guilty of the grossest negligence in not knowing of said payment in time to make it available as a defense to said action ? If the sheriff sale was void because of said payment, then the payment ought to have been known in less than six years. In fact, it ought to have been known before any execution was issued, certainly before the sale or the confirmation of the sale; most certainly before said motion was made to set aside the sale; and beyond all question, before said judgment was rendered on the sheriff’s bond. The want of such knowledge can only be accounted for on the ground of fraud or gross negligence. Cruise was the clerk of the district court who issued said executions, who made all the entries in the case, and who kept, all the papers connected with the case. Ferguson was the sheriff who sold the property, who returned that the money for which the property was sold was paid and who allowed his said sale to be confirmed. Counsel for defendants in error say that the sheriff did not make return that said money was paid. It is true that he did not make such a return in just so many words. But he did so return by necessary and unavoidable inference or implication. He returned that the property “was then and there duly struck off and sold by me [him] to Allison B. Bartlett for the sum of $4,500, he being the highest and best bidder therefor.” He did not return that the money was not paid. It was his duty to collect the money before he made his return. (Ferguson v. Tutt, 8 Kas., 370.) And in his return he says, “this writ is returned satisfied.” (See Armstrong v. Garrow, 6 Cowen, 465, 467.) Besides, we do not think it would be good policy to allow an officer, after he has made a return Avhich if liberally construed would show that he did his duty, and after other persons have acted upon such construction, to come in for the purpose of evading another duty and say by drawing fine distinctions concerning the construction of his own language that his return does not show that he did his duty and thereby by means of his own ambiguous language escape and evade the just consequences of his own omissions or laches in other respects. Bartlett, another plaintiff below in the case at bar, made an affidavit on March 9th 1872, which affidavit was used as evidence in the case at bar on the trial thereof, and in which affidavit he states among other things the following : “He was employed as attorney for the defendants in the suit of Thomas E. Tutt, et al., v. Wilkins T. Wheatley, et al.;” “that he has been employed in such capacity on-one side or the other in all suits and actions that grew out of the proceedings therein; that he was sole attorney of the plaintiffs in the cause wherein Edmund Terry et al. were plaintiffs and Wilkins T. Wheatley et al. were defendants; he had the sole control of the note and trust-deed declared upon in said last-named suit, and had the entire control of the judgment rendered therein;” “that he has had frequent and continued correspondence with said Edmund Terry, who recovered the judgment upon the note and trust-deed aforesaid;” “that this deponent had no knowledge or intimation from said Terry, or from any other jterson, by letter or otherwise, that the judgment in favor of said Terry in said cause had been paid until since the last term of this court, and a short time before filing the petition in this cause.” The petition in this cause was filed December 30th, 1871, and the said judgment was paid October 20th, 1865. Brodwell who paid said judgment to Terry is still living, and is one of the plaintiffs below (defendants in error) in this case. It will be remembered that it was nearly a year after said judgment was paid by Brodwell before said sale was made; more than a year before it was confirmed; nearly four years before any attempt was made by any one to set aside either the sale or the confirmation thereof; and more than six years before any attempt was made to avoid the sale on the ground that the judgment had previously been paid. Does this show diligence? Why did not some of the parties inform Terry or Brodwell that there was litigation concerning said sale? Why did not the sheriff, (Ferguson,) or Terry’s counsel, (Bartlett,) inform Terry of said sale, and inquire of him what they should do with that portion of the proceeds thereof, to-wit, $2,317.90 and interest, belonging to Terry? Why did not some one of the parties now interested in having said judgment against the sheriff and his sureties enjoined exercise some diligence in ascertaining that the Terry judgment was paid? Not one of these questions is answered by the record. Now, as the record does not show that there was any diligence exercised in ascertaining this fact of payment so as to set it up as a defense in the action on the sheriff’s bond, we think the judgment rendered on said bond cannot be perpetually enjoined merely because of said payment. Neither the petition in the court below, nor the evidence, nor the findings of the court, show any diligence. In this respect all are defective. None of them show a complete cause of action. And for this reason we think the'judgment of the court below ought to be reversed, and a new trial granted. The record shows that a motion for a new trial was made and overruled. In this the court below also erred. Second: But it is claimed that said judgment should be enjoined bécause said sheriff sale was subsequently ordered to be set aside by the supreme court. There are several answers to this: lst.-Said sale was ordered to be set aside for a supposed irregularity, which never in fact existed. It was ordered to be set aside purely for the fault of the sheriff himself in making a false return. And can he now take advantage-of his own wrong? Is it possible-for an officer to ci’eate a good cause of action, (as is claimed he can in this case,) or a good defense (as is claimed he can to the action on the sheriff’s bond,) in favor of himself by his own wrongful acts? We suppose not. 2d.-Tutts and Baker were not made parties, and had no notice of said motion to set aside said sale, and hence the motion was rightfully overruled in the district court as to them. (Mitchell v. Milhoan, 11 Kas., 617.) Whatever order however might have been made on the motion would under such circumstances have been immaterial as to them. 3d. — Tutts and Baker were not made parties to the petition in error in the supreme court, nor had they any notice thereof; and hence said order of reversal could not affect them or their rights. (Ferguson v. Smith and Dunham, 10 Kas., 401; Armstrong v. Durlund, 11 Kas., 15; Hodgson v. Billson, 11 Kas., 357.) No judgment of reversal was ever rendered in the supreme court against Tutts and Baker, nor could there have been any such judgment, for the supreme court has no more power to render a judgment against a party over whom it has no jurisdiction than any other court has. 4th.-Said sale has never been set aside as against Tutts and Baker. 5th.-Nor can it now be set aside for a mere irregularity on the part of the sheriff in making his return of the sale, after the sale has been confirmed, after judgment has been rendered against the sheriff and his sureties for refusing to pay over money collected on said sale, so as to benefit the sheriff and his sureties and to the injury of the parties who obtained such judgment. The decree of the district court perpetually enjoining the collection of said judgment is reversed, and a new trial awarded. All the Justices concurring.	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Rees, J.: In this action brought for possession of land founded upon claim of ownership, plaintiffs appeal from a judgment holding the warranty deed given them by defendant Kenneth Franklin dated June 3, 1977, was an equitable mortgage and ordering foreclosure. Plaintiffs also complain of the trial court ruling that certain charges and fees contained in a contemporaneous agreement were usurious. Defendant cross-appeals from that part of the judgment prohibiting his invocation of the usury penalties provided by statute, K.S.A. 1980 Supp. 16-207(d). As correctly stated by plaintiff, evidence offered to show a deed was understood and agreed to be a mortgage must be clear and convincing. Clear and convincing evidence means simply that witnesses to a fact must be found credible. The facts to which the witnesses testify must be distinctly remembered; details must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking confusion as to the facts at issue. Nordstrom v. Miller, 227 Kan. 59, 65, 605 P.2d 545 (1980). This standard of proof refers to the quality of the evidence (Hoyer v. Cannedy, 4 Kan. App. 2d 228, 229, 604 P.2d 76 [1979]) and is for the guidance of the trial court. On appeal we assume the trial court knew of and applied the rule. Klusmire v. Dixon, 150 Kan. 871, 875, 96 P.2d 634 (1939). We are guided also by the principle of appellate review that findings of fact supported by evidence possessing something of substance and relevant consequence will not be set aside on appeal. Berger v. Bierschbach, 201 Kan. 740, 744, 443 P.2d 186 (1968). If the purpose and intent of a transaction is to secure a debt, equity will look through form to the substance of the transaction and give effect to that purpose and intent. A lien follows if evidence of facts surrounding the transaction discloses the intent to charge property as security for an obligation. Fuqua v. Hanson, 222 Kan. 653, 655-656, 567 P.2d 862 (1977). Upon examination of the record, we find sufficient evidence to support the findings of the trial court. There was testimony by defendant and his ex-wife, Annette Franklin, unsuccessful offerors to buy, and even plaintiff Raymond Schulte that the underlying purpose of the complex transaction was not sale and purchase of the land but instead the advancement of money to defendant for his immediate payment of divorce judgment obligations. We are mindful of the decision in Reeder v. Gorsuch, 55 Kan. 553, 40 Pac. 897 (1895), cited to us by plaintiffs, wherein it was held that to construe a deed as a mortgage it must be found that both grantor and grantee considered the conveyance to be as security for a debt. Plaintiffs take the position there is no direct evidence in the present case establishing that to have been their intent. Plaintiffs read Reeder v. Gorsuch too literally. Intent by the grantee that title to the property pass as security for a debt need not be shown by direct evidence from the grantee, but may be gleaned from the circumstances surrounding the conveyance. Fuqua v. Hanson, 222 Kan. 653. Those circumstances in this case—defendant’s desperate need for cash, his insistent refusal to sell to others, provisions in the agreement for repurchase, and the security agreement executed by the parties—support the finding that the parties intended this conveyance to operate only as a mortgage. We can find nothing compelling a contrary conclusion. As to the ruling that certain identified fees and charges imposed upon defendant for repurchase of his land were usurious, we must agree with the trial court. At the time the transaction documents were executed, the statute prohibiting the assessment of usurious interest, K.S.A. 1977 Supp. 16-207, provided in part: “(a) The parties to any bond, bill, promissory note, or other instrument of writing for the payment or forbearance of money may stipulate therein for interest receivable upon the amount of such bond, bill, note or other instrument of writing, at a rate not to exceed ten percent (10%) per annum unless otherwise specifically authorized by law.” The trial court found plaintiffs were not authorized to assess more than a 10% per annum interest charge upon the money loaned. Plaintiffs now point to subsequent change in K.S.A. 16-207 which raised the legal ceiling for interest to 11% (L. 1978, ch. 72, § 1; K.S.A. 1979 Supp. 16-207[a]), and ask this court to allow the collection of the higher rate. This we cannot do. It is a general rule that the validity, construction, effect and execution of a contract are governed by the law in existence at the time it is made. 17 Am. Jur. 2d, Contracts § 257. See also Ark. S&L Assn. v. Mack Trucks of Ark., 263 Ark. 264, 566 S.W.2d 128 (1978) (a statute raising interest ceilings is not applicable to contracts entered into prior to the effective date of the statute). Once the trial court construed the conveyance to be a mortgage, it was obliged to characterize as usurious those fees and charges in excess of the 10% maximum allowed by law at the time of the transaction. The trial court found a $50,000 payment, crop share payments and rate of interest charges exceeding 10% were charges assessed against the borrower which resulted in a greater return to the lender than authorized by law and hence were usurious. K.S.A. 1978 Supp. 16-207(a). This finding cannot be assailed. Finally, defendant asserts that he should be awarded those statutory penalties provided in K.S.A. 1978 Supp. 16-207(b) (now K.S.A. 1980 Supp. 16-207[d]). We agree. K.S.A. 1980 Supp. 16-207(d) provides: “(d) Any person so contracting for a greater rate of interest than that authorized by this section shall forfeit all interest so contracted for in excess of the amount authorized under this section; and in addition thereto shall forfeit a sum of money, to be deducted from the amount due for principal and lawful interest, equal to the amount of interest contracted for in excess of the amount authorized by this section and such amounts may be set up as a defense or counterclaim in any action to enforce the collection of such obligation and the borrower shall also recover a reasonable attorney’s fee.” (Emphasis added.) The trial court held, in conclusion of law No. 17: “17. Where a party asks a Court to declare a deed to be in effect a mortgage, he may be required, as a condition to receiving such equitable relief, to forego the advantage of any statutory penalties for the exaction of usury, and submit to a charge of the principal of the debt and legal interest.” This finding is taken verbatim from language found in Live Stock Co. v. Trading Co., 87 Kan. 221, Syl. ¶ 5, 123 Pac. 733 (1912). After study of Live Stock Co. and various writings on equity jurisprudence, we conclude defendant is entitled to exercise the penalty provisions of K.S.A. 1980 Supp. 16-207(d), notwithstanding the facially contrary language in Live Stock Co. Courts have long adhered to the maxim that he who seeks equity must do equity. Application of this rule to facts not unlike the present case is found in 3 Pomeroy’s Equity Jurisprudence § 937, p. 719 (5th Ed. 1941): “It Is a firmly settled rule, in the absence of contrary statutes, that where a borrower, who has not already paid the debt, brings a suit for affirmative relief against a usurious contract, he can obtain the remedy only upon the condition of repaying, or offering to repay, the sum which is justly and equitably due his creditor, — the amount actually loaned and legal interest.” Defendant did not bring suit for relief; the equitable mortgage and usurious interest issues were raised in defense against plaintiff’s action for possession. Thus, the historical impediment to a claim for statutory usury penalties is inapplicable (see 1 Storey’s Equity Jurisprudence § 424 [14th Ed. 1918]), and renders Live Stock Co. distinguishable. We conclude that in this case, K.S.A. 1980 Supp. 16-207(d) requires the assessment of penalties for the usurious interest charges. The trial court erroneously denied defendant this relief. We affirm the rulings of the trial court that the deed was an equitable mortgage and that the identified fees called for by the transaction were usurious. We reverse the ruling denying defendant’s request for recovery of statutory penalties. We direct invocation of the penalty provisions of K.S.A. 1980 Supp. 16-207(d) by the grant of setoff against the judgment debt and by an award to defendant of a reasonable attorney fee to be fixed by the trial court. Affirmed in part, reversed in part and remanded with directions.	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Prager, J.: This is an action for a declaratory judgment and an injunction to enjoin the city of Garden City from improving a certain street and levying assessments for the improvements. The facts in the case are not in dispute. On July 2, 1980, the governing body of the city of Garden City adopted a resolution in accordance with K.S.A. 12-6a04, setting a hearing on the advisability of creating an improvement district along Campus Drive in Garden City for the purpose of improving that roadway. The hearing on advisability was held on July 23, 1980, and the governing body, finding such an improvement advisable, adopted a resolution authorizing the improvements. The resolution made provision for the assessment of the improvements against those individuals owning property within the improvement district. Thereafter, the city published the resolution in the Garden City Telegram. Within the twenty-day period established by K.S.A. 12-6a06 for the filing of protests, plaintiffs, as resident property owners, filed with the city clerk a petition protesting the formation of the proposed improvement district and the assessment of the costs of such improvements against them. The city then held a hearing for the purpose of determining the validity of plaintiffs’ protest petition. At that hearing, the city determined that it was unnecessary to address the issue of the petition’s validity based upon its interpretation of K.S.A. 12-6a06, which provides as follows: 12-6a06. “The governing body may, by a majority vote of the entire members-elect thereof, at any time within six (6) months after the final adjournment of the hearing on the advisability of making the improvements, adopt a resolution authorizing the improvement in accordance with the finding of the improvement, as provided in K.S.A. 12-6a04, which shall be effective upon publication once in the newspaper: Provided, The improvement shall not be commenced if, within twenty (20) days after publication of the resolution ordering the improvement, written protests signed by both fifty-one percent (51%) or more of the resident owners of record of property within the improvement district and the owners of record of more than half of the total area of such district are filed with the city clerk: Provided, however, Whenever adjoining parallel streets have been improved, and the proceedings are to improve the intervening connecting street to the same extent as the streets to be connected, or when two portions of any street have been improved and an intervening portion not exceeding two blocks has not been improved, and the proceedings are to improve such intervening portion to the same extent as the improved portions, or when the proceedings are to improve sanitary and storm water sewers, no protest shall be accepted by the cittj clerk and such improvements may be made regardless of protests. The genuineness of the signature and addresses of all signers of each protest shall be verified by some signer of such protest. The governing body shall be judge of the sufficiency of any protest and its decision shall be final and conclusive: Provided, Names may be withdrawn from any protests by the signers thereof at any time before the governing body shall convene its meeting to determine the sufficiency thereof.” (Emphasis supplied.) The parties have stipulated that the city had no evidence to controvert the fact that the named plaintiffs, who signed the protest petition, are in excess of 51% of the resident owners and the owners of 51% of the area subject to improvement. Ignoring the petition, the city determined that it would proceed with the street improvements. Plaintiffs then brought this action seeking declaratory and injunctive relief. Plaintiffs moved for judgment on the pleadings. The trial court sustained plaintiffs’ motion and granted an injunction prohibiting the city from proceeding with the improvements on Campus Drive. The city appealed. The map of Garden City discloses the following undisputed facts: Kansas Avenue is a four-lane street running east and west in Garden City. Mary Street lies about one mile north of Kansas Avenue and also runs from east to west. The two streets are separated by a large portion of the residential area of the city. There are a number of intermediate residential streets running parallel to Kansas Avenue and Mary Street in the area lying between those two streets. Several of these streets intersect Campus Drive which runs north and south on the west edge of the city and intersects Kansas Avenue and Mary Street. The parties agree that Kansas Avenue and Mary Street are parallel streets. The issue to be determined is whether those streets are “adjoining” parallel streets within the meaning of K.S.A. 12-6a06 so as to authorize the city to improve Campus Drive, notwithstanding the protest petition filed by the plaintiffs as resident property owners. The district court held that they are not. We agree. The term “adjoining” is defined in Webster’s Third New International Dictionary 27 (1967) as “touching or bounding at some point or on some line: near in space.” It lists “adjacent” as being a synonym. In Packing Co. v. Insurance Co., 94 Kan. 630, 635, 146 Pac. 1175 (1915), the court quoting Corpus Juris, defined “adjoining” as follows: “ ‘Adjoining. ... In its etymological sense the word means abutting; lying next to or in contact with; contiguous; in contact with; lying or being next to or in contact; meeting at some line or point of juncture; next to; touching or contiguous, as distinguished from lying near or adjacent. “ ‘According to the more approved definitions, the word carries with it the idea of actual contact and touch; but this is not necessarily the meaning of the word in all connections. “ ‘The word has been variously construed by the courts according to circumstances, as “along,” “fronting,” or in the sense of “adjacent,” “near,” or “nearest or most accessible.” Thus when the word is used in statutes relating to arson, burglary, change of venue, eminent domain, or local assessments, its meaning must be gathered from the context and the intention of the particular statute in which it is used. The meaning of the word in any given instance must be determined by the intention of the parties or statute, and by the situation of the property sought to be included or excluded from the meaning of the term.’ ” In that case, the question was whether a park across the street from a certain property was “immediately adjoining” that property. The court held that if the word “adjoining” had been used alone, the park could be said to be “adjoining” the property, but that the word “immediately” prevented that interpretation to those facts. Again in State, ex rel., v. Bunton, 141 Kan. 103, 105, 40 P.2d 326 (1935), the court said that “[a]djoin means to be contiguous to; to be in contact with; to abut upon; and adjoining means contiguous, adjacent.” In Words and Phrases, Vol. 2, numerous cases are found defining “adjoining” as being contiguous or touching, or near or next to. From these cases, we have concluded that, for two things to be “adjoining”, they must be either actually touching or next to each other. Since, by definition, parallel streets cannot touch, it follows that they must be next to each other to be “adjoining.” It is clear from the stipulated facts that Kansas Avenue and Mary Street are not “adjoining” streets. They are at least a mile apart with numerous parallel streets in between. We believe that when the legislature used the word “adjoining” it meant to use the word in its usual meaning. Accordingly, the term “adjoining parallel streets” cannot be construed to apply to two streets which are in fact parallel but which have intermediate parallel streets in the area between them. We are impressed by the plaintiffs’ argument that to hold that the two streets in question did fall within “adjoining parallel streets” would lead to an absurdity. K.S.A. 12-6a06 clearly provides a protest procedure for the improvement of streets. If the city’s argument were correct, then the protest procedure could easily be nullified in most instances. We do not believe that this was the intent of the legislature in enacting K.S.A. 12-6a06. We, therefore, affirm the district court in holding that portions of Campus Drive could not be improved in view of the protest petition. The district court, as an additional reason for its decision, found that Campus Drive was an improved road, which precluded the city from relying on the second exclusionary provision in K.S.A. 12-6a06 which permits a city to ignore a protest petition “when two portions of any street have been improved and an intervening portion not exceeding two blocks has not been improved, and the proceedings are to improve such intervening portion to the same extent as the improved portions.” That issue was neither relied on by the city nor briefed by the parties in district court. We find it unnecessary to determine it here. Suffice it to say, the second exception was not applicable, since the proposed improvement district was intended to improve a portion of Campus Drive nearly one-half mile in length and far in excess of the two-block limitation provided in the statute. The judgment of the district court is affirmed.	[ -44, -20, -107, -50, -50, 96, 10, -100, 64, -79, -27, 95, -83, -53, 28, 99, -102, 125, -48, 123, -59, -90, 71, -62, -76, -13, -13, 93, -69, 93, 118, 87, 78, 20, -54, -67, 70, -126, 25, -34, -50, -121, -117, -47, -39, 64, 38, 122, 18, 15, 85, 44, -11, 40, 24, -29, 96, 44, -37, 41, -61, -7, -83, -107, 120, 14, -96, 100, -100, 7, -44, 43, -112, 57, 4, 104, 119, -90, -106, 118, 103, -37, 12, 38, 98, 35, 33, -49, -32, -84, 78, 80, -81, -124, -105, 89, 98, 33, -97, -105, 117, 22, 7, -2, -25, 21, 31, -68, -57, -118, -12, 49, -49, -14, -125, -119, -1, 69, 16, 97, -55, 102, 94, -9, 49, -37, -97, -8 ]
Rogg, J.: The principal issue in this appeal is the exclusiveness of the Kansas workmen’s compensation act as a remedy for an injured employee whose injury was the result of the employer’s wanton conduct. For purposes of its summary judgment motion, employer Phillips Petroleum Company admitted its acts were wanton and constituted reckless disregard for the safety of its employee, Carol Lawrence. The trial court granted summary judgment to the employer and the employee appeals. A detailed recitation of the facts is not necessary to determination of the issue. The plaintiff was severely injured on August 5, 1976, in an explosion and fire at the defendant’s refinery in Kansas City. Workmen’s compensation benefits were applied for and received. The examiner’s award was affirmed by the director and no appeal was taken from it by either party. Plaintiff then commenced this common-law action against her employer. Plaintiff argues on appeal that the Kansas workmen’s compensation act was not intended to abrogate an employee’s common-law right to seek a remedy for wanton conduct by an employer causing death or injury to the employee. Three arguments are presented in support of that contention: (1) The act was intended to supplant only common-law actions based on negligence; (2) public policy requires that wanton conduct be subject to a common-law action; and (3) a construction of the act that wanton conduct is within its coverage encourages wanton conduct and discourages safety in the workplace. Plaintiff first argues the act was intended only to supplant common-law actions against the employer based on negligence. An analysis of K.S.A. 1980 Supp. 44-501 indicates that the employer is liable for “personal injury by accident arising out of and in the course of employment.” The essence of plaintiff’s argument is that an injury resulting from an employer’s wanton conduct is not “by accident” and is therefore not covered by the act. “Wanton conduct” is defined as an “action indicating a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of that action.” Anderson, Administrator v. White, 210 Kan. 18, 19-20, 499 P.2d 1056 (1972). “Willful conduct” is likewise defined at 19 as an “action indicating a design, purpose or intent on the part of a person to do wrong or to cause an injury to another.” Plaintiff does not contend that her employer’s conduct was “willful” within the definition set out above. Plaintiff has focused on “wanton” conduct which, as defined above, is something more than ordinary negligence, yet is something less than willful injury. See Friesen v. Chicago, Rock Island & Pacific Rld., 215 Kan. 316, Syl. ¶ 1, 524 P.2d 1141 (1974). This issue was squarely presented to the Kansas Supreme Court in Duncan v. Perry Packing Co., 162 Kan. 79, Syl. ¶ 3, 174 P.2d 78 (1946). There the court held: “If the injury of an employee who is under the workmen’s compensation act is in other respects ‘a personal injury by accident arising out of and in the course of employment,’ the fact that such injury was occasioned by acts or conduct constituting wantonness on the part of the employer does not take such injury out from under the act, and a common-law action to recover damages for such injury will not lie.” The essence of plaintiff’s argument is that “wanton” conduct is not covered by the act in that it involves foreseeable danger or the realization of the imminence of danger on the part of the employer, and therefore cannot be categorized as an “accident.” The Duncan court rejected this argument when it said at 85-86: “Appellant urges, however, that while the injury may have been an injury ‘by accident’ as far as the employee was concerned, it was not in reality an ‘accident’ as far as the employer was concerned, being readily foreseeable by him, in the light of the preventable peril to the employee which he knew existed, but of whose existence the employee had no knowledge or warning. We find no support in the act or in the authorities to support this restricted definition of ‘accident.’ The word ‘accident’ has been frequently defined in our cases (Echord v. Rush, 124 Kan. 521, 261 Pac. 820; Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793; Barker v. Shell Petroleum Co., 132 Kan. 776, 297 Pac. 418; Kearnes v. Reed, 136 Kan. 36, 12 P.2d 820; McMillan v. Kansas Power & Light Co., 157 Kan. 385, 139 P.2d 854). It has been said that the necessary elements of an accident are: (1) undesigned; (2) sudden; (3) unexpected; (4) usually of an afflictive or unfortunate character; (5) often accompanied by a manifestation of force; and (6) referrable to a definite time, place and circumstance. The injury here clearly falls within the definition. It is stated in 71 C.J. 571 that in determining the statutory meaning of the word ‘accident’ as used in workmen’s compensation laws ‘it is the expectation, intention, or design of the workman that is to be regarded.' In Gilliland v. Cement Co., supra, it was said: “ ‘The word “undesigned” must not be taken too literally in this connection, because a person may suffer injury accidental to him, under circumstances which include the design of another. The same warning may be extended regarding other elements of the definition.’ (Italics supplied.) (p. 773.) “Furthermore, it should be noted that the plaintiff did not allege that the employer intended to injure the employee or that he knew that an injury to an employee was certain to result, or that any of the defendants harbored any ill will toward her. “Whether the facts alleged in the petition show negligence only or whether they show wantonness on the part of the employer may be debatable. But even if the acts or conduct alleged do show wantonness, we find no authority either in the statute or in our decisions construing the statute that would justify us in saying that the injury was not compensable under the workmen’s compensation act. Considering the whole subject broadly, the legislature has made certain exceptions such as agricultural pursuits (G.S. 1935, 44-505), interstate commerce (G.S. 1935, 44-506) and others, but has not included ‘willful misconduct’ or ‘wantonness’ of the employer among the exceptions. Nor is there any distinction between ‘gross negligence’ and any other degree of negligence, as far as applicability of the act is concerned (see 71 C.J. 1485). If so compensable, an action at common law will not lie. To hold otherwise would open a by-pass around the act and permit attempted recovery in common-law actions which the act was intended to supersede. If the plaintiff here had established the same facts in a proceeding to secure compensation under the act, can there be any doubt that he would have been entitled to an award? If so entitled, it follows, under our decisions, that such relief is exclusive.” Plaintiff fails to deal with the rationale of Duncan in that “accident” has reference to the viewpoint of the employee, while the charge of “wanton” conduct looks to the employer. Plaintiff argues only that a construction of “accident” to include wanton ness is a contradiction in terms. This argument looks only to the employer. The rationale of Duncan would still seem to be valid. Plaintiff’s second and third arguments are that public policy requires that an independent action for an injury occasioned by “wanton” employer conduct be permitted, and to hold otherwise is to encourage such wanton conduct and to discourage employers in providing safe working conditions. In this regard, plaintiff correctly states that Kansas law allows punitive damages for wanton and reckless conduct. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976). Plaintiff fails, however, to present any sound analysis to indicate why the loss of such punitive damages is not a part of the “trade-off,” which was part of the enactment of the workmen’s compensation act. Some states allow additional compensation in cases of an employer’s wanton conduct. The Kansas statute does not do so. The fact the act does not permit increased compensation for wanton conduct does not mean that the act does not apply to injuries resulting from wanton conduct on the part of an employer. The argument that such construction of the Kansas workmen’s compensation act discourages safety is a policy argument and is more properly addressed to the legislature. We conclude the trial court did not err in granting summary judgment to defendant on the basis that plaintiff’s remedy under the workmen’s compensation act was exclusive. The second issue raised on appeal relates to the propriety of a statute of limitations ruling relative to another defendant. No error is shown and this issue is affirmed under Rule No. 7.042(d) (229 Kan. v [Advance Sheet No. 1]). The judgment is affirmed.	[ -112, 120, -40, -99, 8, 99, 58, 18, 113, -113, 37, 83, 93, -3, 13, 127, 114, 101, -47, 107, -9, -93, 31, -37, -10, 51, -103, 69, -80, 75, -12, -2, 77, 48, 74, -43, -90, 64, -63, -44, -118, 4, -54, -24, 89, 64, 60, 122, -112, 75, 49, -98, 122, 42, 16, -41, -115, 46, 123, -82, 97, -15, -53, 13, 126, 16, -93, 5, -100, 47, -48, 31, -102, 25, 33, -56, 82, -90, -62, 116, 111, -119, -60, 99, 98, 49, 21, -25, 104, -72, 47, -58, -115, -123, -104, 89, 25, 11, -106, -99, 85, 4, 15, 120, -16, 29, 95, -84, 1, -121, -76, -15, -49, 108, -74, -117, -17, -121, 38, 101, -34, -94, 94, 7, 114, 31, -97, -100 ]
Bullock, J.: After three years of marriage, Richard H. Long, Jr. sued his wife Bonnie for divorce on grounds of incompatibility. As part of that proceeding, the parties entered into an agreement covering, among other things, the payment of their debts and the division of their property. The provision of that agreement pertinent to this lawsuit reads: “Bonnie K. Long shall assume the financial obligations with the Southwest National Bank, Dr. Don George, Sears and the attorney fees for Richard H. Long, Jr/s attorney in the sum of $200.00 and hold Richard H. Long, Jr. harmless from payment of same.” In the divorce decree filed on September 27, 1973, the court found “that the rights, remedies and obligations of the parties contained in said agreement are fair and reasonable, and should be approved and ratified in all respects.” Based upon this finding the court entered the following order: “The parties are hereby directed and ordered to comply in all respects with the terms of said agreement.” The property division agreed to by the parties was then made an order of the court and custody of the couple’s child was awarded to Bonnie. For reasons not detailed in the decision below, Richard paid the obligations to Southwest National Bank and Sears in 1976 and 1977. The next court involvement with the case occurred on March 3, 1977, when the trial judge entered an order, on the joint motion of the parties, to transfer custody of the child to Richard. No further legal proceedings occurred until June 20, 1979, when Richard filed an affidavit in contempt alleging Bonnie had complied with neither the March, 1977 custody order nor the September, 1973 decree ordering Bonnie to pay the debts previously mentioned. On March 21, 1980, Bonnie was found in contempt of the court’s prior orders. In lieu of the imposition of sentence, Bonnie was given the opportunity to purge herself of the contempt by reimbursing Richard at the rate of $100.00 per month for the sums he had paid to the Bank and Sears. Bonnie moved for an amendment to that part of the court’s March, 1980 contempt order relating to the parties’ debts on the grounds that the judgment contained in the divorce decree was dormant. The trial court, in an order entered in December, 1980, found the agreement containing the agreement to pay debts constituted a contract which Bonnie had breached by not paying the obligations assigned to her, but that the judgment (the divorce decree) pertaining to the obligation to pay debts did not become effective until 1980 when it was reduced to a sum certain. Alternatively, the court concluded, even if the judgment were dormant, Bonnie had waived, was estopped, or was barred by laches from asserting the defense of dormancy because she had not raised the same in the original contempt hearing. On the basis of these conclusions, the finding of contempt and the conditions for purging were confirmed. The significant questions presented by this appeal, as we view it, are four: 1. Did the terms of the property settlement agreement of the parties become a judgment of the court upon confirmation by the decree of divorce? 2. If the agreement became a judgment, is the provision requiring Bonnie to pay the Bank and Sears a judgment in favor of Richard? 3. If the decree is a judgment, and one in Richard’s favor, did it grow dormant for want of enforcement for five years and did it become wholly extinguished when no motion for revivor and request for execution, attachment or garnishment was filed within two years thereafter? 4. If the order to pay the Bank and . Sears is a judgment in Richard’s favor which has become extinguished for want of enforcement and revivor, can Bonnie now be punished for contempt for failing to comply with that judgment? The first three questions have been previously decided in our law. The last, insofar as we can determine, is one of first impression. We shall deal with the questions in the order presented: 1. K.S.A. 1973 Supp. 60-1610(d) (now [f] L. 1981, ch. 236), in effect when the divorce decree at issue here was entered, requires that every property settlement agreement “shall be incorporated in the decree.” The effect of this incorporation was settled in 1972 with the decision of In re Estate of Sweeney, 210 Kan. 216, 500 P.2d 56 (1972). In that case the supreme court held that although the agreement retains its characteristics as a contract, it also becomes a judgment of the court—“a hybrid in the law.” 210 Kan. at 224. Thus, we conclude that the property settlement agreement in the case at bar, although also a contract, became a judgment upon its confirmation in the divorce decree. 2. In Fiske v. Fiske, 218 Kan. 132, 542 P.2d 284 (1975), the husband agreed, as part of a property settlement agreement, later incorporated into the decree, to make the bank payments on the wife’s house trailer. When he fell behind in the payments, the wife sought to garnish his wages. The husband moved to dismiss, arguing there was no judgment on which to base the garnishment. After commenting on the rule that confirmation of a property settlement agreement makes that agreement also a judgment, the court, without discussion, held that the wife had a judgment for the bank payments which was immediately enforceable by garnishment. We find Fiske indistinguishable from the case before us and, therefore, conclude the provisions of the agreement relating to the payment of the Bank and Sears bills by Bonnie constitute a judgment in Richard’s favor, and that this judgment, contrary to the views of the court below, was effective from the date the decree was entered in 1973. 3. The questions relating to the dormancy and extinguishment of Kansas judgments, presented by this appeal, were effectively determined by this court in Clark v. Glazer, 4 Kan. App. 2d 658, 609 P.2d 1177 (1980). In that case we said that, pursuant to K.S.A. 60-2403, judgments grow dormant in five years, if not enforced by execution, garnishment or proceeding in aid of execution; and, if not revived, as provided in K.S.A. 60-2404, such dormant judgments become absolutely extinguished and unenforceable two years thereafter. Glazer makes plain that nothing other than revivor under K.S.A. 60-2404 can serve to revitalize a dormant judgment and that, once the period for revivor passes, there is absolutely nothing left of that judgment to which even “equitable principles could be applied.” 4 Kan. App. 2d at 661. A review of K.S.A. 60-2404 reveals that revivor of dormant judgments can only be accomplished by a combination of (1) a motion for revivor, coupled with (2) a request for the immediate issuance of an execution, garnishment or attachment. Accordingly, we are obliged to conclude, again contrary to the result reached below, that, in the case at bar, neither Richard’s affidavit in contempt (filed in the sixth year following the entry of the judgment) nor Bonnie’s failure to raise the dormancy of the judgment in the original contempt proceeding (held in the seventh year of the dormant and unrevived judgment) were sufficient to revive the judgment contained in the divorce decree. 4. Having concluded that Richard’s judgment for the payment of the bills to the Bank and Sears was dormant and unrevived at the time Bonnie was held in contempt and noting that the judgment is now totally extinguished, having never been revived by Richard within the time permitted by K.S.A. 60-2404, we turn at last to a consideration of the trial court’s final December, 1980 order finding Bonnie in contempt for failing to comply with the extinguished judgment. We are cited to no authority concerning whether one can be lawfully held in contempt for failing to pay an extinguished judgment. Logic, however, dictates that the answer is no. The instant action provides ample illustration. Here, although Bonnie no longer owes the money covered by the extinguished judgment and although there is nothing Richard can do to revive that obligation, the trial court ordered Bonnie to pay it or go to jail. If this order stands, Richard acquires by indirec tion that which the law, because of his own neglect, would deny him directly. Such a result is neither logical, reasonable nor fair, especially when it is compelled solely by means of a threat of incarceration. Accordingly, we hold that it is not lawful to punish by contempt the failure to pay an extinguished judgment. The order of the trial court below is reversed and this cause remanded with instructions to dismiss the proceeding in contempt insofar as it relates to the failure of Bonnie to pay the two bills in question.	[ -80, 120, -43, 108, 10, 96, 27, -102, 123, 105, 5, -41, -1, 98, 21, 105, 119, 105, 80, 122, -127, -77, 4, 80, -10, -101, -7, -51, -9, 79, -1, 87, 73, 48, -64, -43, 98, -125, -29, 16, 14, -126, -119, -28, -47, 6, 112, 123, 84, 15, 97, 6, 51, 46, 53, 110, 108, 42, 127, 69, -48, -80, -81, 4, 127, 3, -111, 6, -76, 47, -40, 15, -104, 57, 33, -24, 59, -74, -58, 100, 73, -67, -120, 100, 114, 2, 65, -11, -40, -103, -89, -14, -97, -89, -109, -40, 10, 70, -66, 30, 100, 64, -85, 122, 110, -116, 60, -28, 18, -86, -42, -47, 13, 54, -116, 3, -29, -93, 32, 113, -49, -94, 92, 35, 121, -109, 15, -110 ]
Bullock, J.: A tornado struck Cedar Vale, Kansas, on June 16, 1975, and damaged a high school building and a school bus garage owned by plaintiff. The extent of that damage was the subject of this action filed against defendants, the companies which insured the buildings. The total face amount of coverage provided by defendants’ policies was $251,563 for the high school building and $47,576 for the garage. After a bench trial, the trial court held that plaintiff had suffered a “total loss” and entered judgment in plaintiff’s favor for the entire face amount of both policies and for interest, costs and attorney fees as well. From this judgment defendants have appealed, raising several points for our consideration. Defendants first contend that the trial court erred in its conclusion that defendants had the burden of proof to establish that plaintiff had suffered something less than a total loss, as that term is defined by the valued policy law, K.S.A. 40-905. We concur. For many years, the law has recognized that the insured has the burden of proof to establish the nature and extent of any loss and that the loss claimed was caused by one of the perils insured against (“covered”) by the policy. The only exception to this rule pertains to exclusionary clauses within the policy, with respect to which the insurer has the burden of proof. See Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, Syl. ¶ 5, 522 P.2d 401 (1974) and Insurance Co. v. Heckman, 64 Kan. 388, 67 Pac. 879 (1902). Based upon these authorities, we conclude that the burden of proof in this cause is on the plaintiff to prove the nature and extent of its loss, whether “total” (within the meaning of K.S.A. 40-905) or not, and that the loss was “covered” by the policy. Defendants next contend that the record does not contain substantial competent evidence to support the trial court’s finding that plaintiff suffered a “total loss” and was thus entitled to the face amount of the policies pursuant to K.S.A. 40-905. Again, we concur. The term “total loss” (or “wholly destroyed,” the actual language of K.S.A. 40-905) has been consistently defined by our Supreme Court. In Insurance Co. v. Heckman, 64 Kan. at 395, the court held: “Whether the building covered by the policy, the foundation of this action, was or was not rendered by the fire a ‘total loss’ or ‘wholly destroyed,’ was, in this case, a question of fact for the jury. [Citations omitted.] “The phrase ‘total loss,’ or its equivalent, ‘wholly destroyed,’ as used when applied to the subject of insurance, does not contemplate the entire annihilation or extinction of the property insured. Nor does it require that any portion of the property remaining after loss shall have no value for any purpose whatever, but it means only destruction of the property insured to such extent as to deprive it of the character in which it was insured. Although some portion of the building may remain after the fire, yet if such portion cannot be reasonably used to advantage in the reconstruction of the building, or will not, for some purpose, bring more money than sufficient to remove the ruins, such building is, in contemplation of the law, a ‘total loss’ or ‘wholly destroyed.’ [Citations omitted.]” In Kinzer v. Insurance Association, 88 Kan. 93, 97, 127 Pac. 762 (1912), the court quoted Heckman and added the following: “Another case cited by appellant which recognizes the same rule is Royal Ins. Co. v. McIntyre, 90 Tex. 170, 37 S.W. 1068. There the test is said to depend upon the question ‘whether a reasonably prudent owner, uninsured, desiring such a structure as that in question was before the injury, would, in proceeding to restore the building to its original condition, utilize such remnant as’ a basis. See also note to the same case in 59 Am. St. Rep. 811, where the author uses the following language: ‘Undoubtedly, no matter how great a portion of the building may remain unconsumed, yet if it is so injured that it must be torn down or that what remains can not be utilized in reconstructing the building without incurring greater expense than if it were not so utilized, the property must be regarded as having been “wholly destroyed,” ’ citing O’Keefe v. Ins. Co., 140 Mo. 558, 41 S.W. 922, German Ins. Co. v. Eddy, 36 Neb. 461, 54 N.W. 856, Harriman and another v. The Queen Ins. Co. of London and Liverpool, 49 Wis. 71, 5 N.W. 12, and Seyk and others v. The Millers’ Nat. Ins. Co., 74 Wis. 67, 41 N.W. 443.” The court slightly rephrased the rule in McKenzie v. Fidelity-Phenix Fire Ins. Co., 133 Kan. 721, 724, 3 P.2d 477 (1931), stating: “The rule is well settled that property is not ‘wholly destroyed’ within the meaning of the statute if an ordinarily prudent person would use any portion of the structure in the reconstruction of the building. If, however, the structure is so injured that it must be torn down or that which remains cannot be utilized in reconstructing the building, the building is ‘wholly destroyed.’ It matters not that portions of the material in the building can be utilized in rebuilding, for it is not the material composing the building that is insured but the building itself, and if its remnant cannot be used as a basis of repair or reconstruction the loss is total. (Insurance Co. v. Heckman, supra; Kinzer v. Insurance Association, 88 Kan. 93, 127 Pac. 762, and cases there cited.)” In the case at bar, the trial court concluded that even though there is no “literal total loss” of a structure insured as to functional use, a “constructive total loss” occurs whenever the damaged structure cannot be restored to that insured functional use for a sum equal to or less than the face amount of the policy. In this conclusion, we agree. When the functional use, or intended functional use, of an insured structure is made known to the insurer and that use is specifically described in the policy, we conclude that the repairs contemplated to be made from the proceeds of the policy, in the event of loss, are those necessary to restore the structure to that insured functional use. Next, the trial court observed that plaintiff’s buildings were twice described in the policies as “high school buildings” and “school bus garage,” respectively. From this observation the trial court found that defendants had undertaken not only to insure the structures as structures, but had undertaken to insure the functional use of those structures as school and school bus garage buildings. Again, we agree. Finally, the trial court applied this “constructive total loss” test to the facts before it and found that the damage to the structures in question was sufficiently great to “trigger” the provisions of K.S.A. 31-150, and that the cost of complying with that statute caused the loss to exceed the face amount of the policies. From the record before us, we are unable to ascertain the accuracy of this critical final conclusion of the trial court. The statute in question, K.S.A. 31-150, as it existed at all times pertinent to this cause, requires compliance with the Uniform Building Code whenever certain types of repairs are made to school facilities. In examining the Building Code, we find that Section 104, subparts a, b, and c of that Code, provides: “(a) General. Buildings or structures to which additions, alterations, or repairs are made shall comply with all the requirements for new buildings or structures except as specifically provided in this Section. “(b) Additions, Alterations, and Repairs: More than 50 Per Cent. When additions, alterations, or repairs within any 12-month period exceed 50 per cent of the value of an existing building or structure, such building or structure shall be made to conform to the requirements for new buildings or structures. “(c) Additions, Alterations, and Repairs: 25 to 50 Per Cent. Additions, alterations, and repairs exceeding 25 per cent but not exceeding 50 per cent of the value of an existing building or structure and complying with the requirements for new buildings or structures may be made to such building or structure within any 12-month period without making the entire building or structure comply. The new construction shall conform to the requirements of this Code for a new building of like area, height, and occupancy. Such building or structure, including new additions, shall not exceed the areas and heights specified in this Code.” Uniform Building Code (1970 edition). The term “value of an existing building or structure” is defined in Section 423 of the Code as follows: “VALUE or VALUATION of a building shall be the estimated cost to replace the building in kind, based on current replacement costs, as determined in Section 303(a).” A careful study of these sections of the Uniform Building Code reveals that whenever school facilities are repaired and the cost of those repairs, exclusive of Code requirements, is 50 per cent or more of the amount required to totally replace the structure at current costs, the entire structure must be “brought to Code.” If, however, the cost of those repairs, exclusive of Code requirements, exceeds 25 per cent but not 50 per cent of the replacement cost of the structure, only the repairs made must comply with the Code. Therefore, in order to determine whether either of these provisions of the Code are applicable to any particular school facility restoration project, it is necessary to know two facts: (1) the cost to repair the structure to its prior condition, exclusive of any costs necessitated by compliance with the Building Code, and (2) the total amount required, at current costs, to replace the structure with a new structure fully complying with the Building Code. From these two facts the necessary mathematical calculation can be made to determine which, if either, of the subsections of the Building Code pertaining to repairs is applicable. In examining the record before us in the case at bar, we find substantial competent evidence from which the trial court could have determined the second essential fact necessary for this critical equation, that is, the total cost to replace the structures, fully complying with Code requirements. No witness at the trial, however, testified as to the cost of repairing the structures to pre-storm condition, exclusive of additional costs related to Code requirements. Without this essential fact, it cannot be determined whether either of the mentioned subsections of the Building Code are applicable and thus, the amount of plaintiff’s loss cannot be accurately determined. In reaching this conclusion, we note that the difference among the amounts required (1) to simply repair the structures to pre-storm condition, (2) to repair the structures with repairs complying with the Building Code, or (3) to repair the structures, fully updating them to Code requirements, is enormous. Our review of the sketchy evidence on repair costs in the trial record tends to indicate that if the first or second option mentioned is open to plaintiff, the loss may well be something less than the face value of the policies. On the other hand, if the third option is the only one legally open to plaintiff, the cost may well exceed the face amount of the policies and thus require payment of that sum under the valued policy law, K.S.A. 40-905. For these reasons, we are persuaded that a new trial must be granted, wherein these essential facts can be established and plaintiff’s ultimate loss determined. In reaching this conclusion, we are impelled to comment upon one particular facet of the evidence before the trial court below. At the trial, the then State Architect, Louis Krueger, testified concerning a written report given by him shortly after the storm, in which report he stated: “I am of the opinion that the damage resulting from the high winds is of such an extent that the renovation of the building would require an expenditure greater than 50% of its value and as such would require that the entire building be brought up to a standard as required by the present building code. I am of the opinion that the dollar expenditure of such a decision would far out weigh the value received when such an undertaking were completed. In other words, I do not think it is financially feasible to renovate this building to a usable condition again.” Upon examination and cross-examination, however, Krueger indicated that he had made no investigation into the current costs of either (a) repairing the structures to pre-storm condition, with out regard to Code requirements, or (b) totally replacing the structures, fully complying with Code requirements. He further indicated he had obtained no repair estimates and had neither prepared nor reviewed plans for repair. Krueger also testified he had made no determination of the structural integrity of plaintiff’s buildings, an issue of some importance at trial, nor had he consulted structural engineers concerning it. His “opinion,” baldly asserted, rested upon a brief “eyeball” inspection of the premises shortly after the storm and “long years of experience.” Although considerable weight is usually given to the opinion of experts in technical matters such as the one before us, in view of the admissions of Krueger concerning what he did not do and did not know, we find his conclusions to be purely speculative in nature. Thus, we cannot conclude that his opinion, standing alone, constitutes substantial competent evidence to support the judgment rendered in this cause. Because this cause is to be tried again, we feel constrained to comment further on one additional facet of the Krueger testimony. In weighing Krueger’s opinion at trial, the trial court was apparently influenced by the fact that, under then K.S.A. 31-150, no construction or repair of school facilities could begin until Krueger, as the State Architect, had approved the plans. Based upon this circumstance, the trial court apparently concluded that plaintiff’s structures could not be repaired without bringing them fully to Code because that was the opinion of the State Architect and no repairs could be lawfully made without his approval. In this conclusion of the trial court, we are bound to disagree. First, Krueger testified that plaintiff had not submitted plans for repair of the structures; that no official determination had been made by him with respect to the necessity of complying with the Building Code; and that, upon future submission, any repair plans would be carefully considered and a determination with respect to Building Code requirements then made. Second, even though Krueger was the State Architect, his authority to approve or reject proposed construction plans could not have been arbitrarily, capriciously or unreasonably withheld. Accordingly, we conclude that the preliminary opinion of the State Architect was not determinative of the issue before the trial court and, on retrial, should not be thus considered. Two final issues raised in this appeal deserve attention. De fendants argued before the trial court and in their briefs to this court that their liability should not include any costs necessitated by compliance with the Uniform Building Code, should that be required under the facts ultimately determined, for the reason that the terms of the policies exclude coverage for such costs. In this connection, we observe that the policies before us insure plaintiff “to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair. ” (Emphasis added.) Likewise, in the replacement cost endorsements affixed to these policies, we find the following, which is said to be substituted for the words “actual cash value” in the insuring clause quoted above: “3. This Company shall not be liable under this endorsement for any loss— (a) Occasioned by enforcement of any local or state ordinance or law regulating the construction, repair or demolition of buildings unless such liability has been specifically assumed under this policy.” The trial court found that these provisions did not constitute limitations of the defendants’ liability for two reasons: (1) defendants insured the functional use of the buildings in question as school facilities, which are, by definition, subject to the Building Code, and thus, contractually assumed Building Code cost liability in the replacement cost endorsements by virtue of the quoted policy phrase: “such liability has been specifically assumed under this policy” and, or alternatively; (2) limitations of liability in policies of insurance, such as those under consideration, are void and unenforceable as against public policy inasmuch as those limitations conflict with statutory requirements applicable to the insured’s structures which were known, or should have been known, to the defendants at the time the policies were written. At the time of the oral argument before this court, defendants tacitly conceded that the view of the trial court with respect to these contended limitations of liability was correct when they indicated they did not “seriously argue” to the contrary. We agree. The notion that ambiguities in written contracts are construed against the author is so ancient a maxim of contract law as to require no citation of authority. Accordingly, if it be assumed that the replacement cost endorsement is inconsistent with the insuring clause of the policies in question, thus creating an ambiguity, that ambiguity must be construed against those who prepared the documents, the defendants. The obvious result of any such construction is the inescapable conclusion that defendants, having contractually undertaken to insure plaintiff’s structures as school facilities, facilities known to be subject to the Building Code, have also assumed liability for the costs of complying with that Code upon loss. Thus, defendants are liable, up to the limits of coverage, for the cost of plaintiff’s necessary repairs, including any added costs in making those repairs occasioned by Code requirements. Turning to the trial court’s second reason for rejecting defendant’s argument, we find that the authorities dealing with the enforceability of attempted limitations of liability concerning building code or similar governmental requirements are comprehensively collected in an annotation at 90 A.L.R.2d 790. Although these authorities are somewhat divided, we find that those holding such limitations unenforceable are the more persuasive. See, especially, Stahlberg v. Travelers Indem. Co., 568 S.W.2d 79 (Mo. App. 1978). Finally, defendants contend the trial court incorrectly applied the terms of the replacement endorsement in the case at bar. Once again, we concur. The primary insuring provisions of the policies before us provide for payment to the insured, in the event of loss, of an amount equal to the “actual cash value” of the loss. Although this term is not defined in the policy and we find no Kansas cases defining the same, we are persuaded that this term means cost of repair or replacement, less applicable depreciation. See Lerer Realty Corp. v. MFB Mutual Insurance Co., 474 F.2d 410 (5th Cir. 1973). The replacement cost endorsement affixed to the policies purchased by plaintiff in this cause indicate that the insurer will pay the actual cost of repair or replacement, rather than the depreciated value of that which was damaged, but only if plaintiff actually repairs or replaces the structures. Specifically, the endorsement provides: “This Company shall not be liable under this endorsement for any loss . . . unless and until the damaged property is actually repaired or replaced by the Insured, on the same premises and with due diligence and dispatch.” We find that this provision is clear and unambiguous and requires actual repair or replacement as a condition precedent to the insurer’s liability for the additional coverage provided by the endorsement. In the case at bar, the trial court held that plaintiff could recover the actual cost of repairs without regard to depreciation, even though plaintiff elected not to replace, repair or restore the structures. In reaching this conclusion, the trial court noted that the policies in question, in other provisions, granted to the insurer, in the event of loss, the option to make repairs on its own initiative in lieu of merely reimbursing the insured for the repairs made by the insured. Inasmuch as the defendants here elected not to undertake repairs on their own initiative, the trial court determined they had waived actual restoration as a condition precedent to liability for added benefits under the replacement cost endorsement. We do not agree. These provisions of the policies are entirely separate and distinct and we conclude that the election of the defendants not to undertake repairs on their own initiative was unrelated to and did not operate as a waiver of the actual restoration requirement of the policy, which is a condition precedent to liability under the replacement cost endorsement. See Kolls v. Aetna Casualty and Surety Company, 378 F. Supp. 392 (S.D. Iowa), aff’d 503 F.2d 569 (8th Cir. 1974). In view of the substantial bona fide issues presented in this cause, we likewise find the award of attorney fees to plaintiff below unwarranted. On retrial, each party should bear its own costs of litigation. For all of the reasons set forth above, this cause is reversed and remanded for a new trial consistent with the views expressed in this opinion. Reversed and remanded.	[ -12, -20, -12, 45, -120, 32, 120, -54, 105, -95, 53, 83, -19, -62, 1, 109, -106, 9, -27, 96, 86, -89, 55, -110, -110, -65, -7, -59, -65, 95, 100, -11, 76, 112, -118, -43, -90, -56, -59, 28, 78, -116, -70, -27, 93, 81, 60, 127, 102, 3, 116, -127, -13, 40, 24, 71, 9, 44, 107, -87, -29, -79, -54, 7, 126, 17, -95, 100, -66, 67, 88, 10, -108, -69, 32, -88, 115, 38, -122, 108, 101, -103, -120, -90, 103, 49, 22, -17, -20, -116, 47, 113, 63, -92, 22, 88, 35, 13, -65, -99, 117, 16, 7, 122, -11, 84, 95, 108, 23, -114, -42, -79, -113, 100, -103, 15, -9, 27, -94, 85, -51, -74, 94, 69, 62, -101, 94, -66 ]
Meyer, J.: John Thomas (appellant) appeals from his conviction of involuntary manslaughter, K.S.A. 21-3404. Appellant operated a small private club on the east side of Pittsburg, Kansas, called the Pan Club. On April 19, 1978, four troublemakers entered his bar and began breaking glasses against the wall. Appellant confronted the group with a gun to force them out of the club. The gun discharged and one of the group was fatally wounded. Appellant contends the gun discharged accidentally. Appellant was charged with voluntary manslaughter. A jury convicted appellant of the lesser included offense of involuntary manslaughter. Appellant asserts several trial errors as the basis for appeal. The State, over objection, was allowed to ask the policeman who advised appellant of his rights whether appellant had made any statements. The policeman stated no and that appellant said he wanted to talk to his attorney. The prosecutor asked Floyd L. Bradley, a former Pittsburg policeman now with the Kansas Bureau of Investigation, “Have you ever been assaulted and battered by John Thomas?” Defendant objected and the objection was sustained off the record. The trial court did not announce its ruling on the objection or instruct the jury to disregard the matter. Appellant further complains of juror misconduct, as one juror went to a club where the conversation centered about what they would do if confronted with a situation such as appellant had faced and whether a club owner should keep weapons on the premises. The juror then went to the Pan Club, the scene of the shooting. The trial court held, after a hearing, that appellant was not prejudiced by the alleged misconduct of the juror. Lastly, appellant objected to Instruction No. 3 which defined involuntary manslaughter, because the court took judicial notice of, and included in the instruction, a city ordinance prohibiting the shooting of firearms within the City of Pittsburg. We first address the question as to whether the court erred in allowing evidence of appellant’s silence after the Miranda warnings were given. Appellant objected to questions of the prosecutor who asked a policeman if appellant had made any statements after being advised of his Miranda rights. The policeman replied that appellant said he wanted to see his attorney and that he didn’t make any statements to the policeman. “The use for impeachment purposes of a defendant’s silence at the time of his arrest and after receiving Miranda warnings, violates the due process clause of the Fourteenth Amendment to the United States Constitution. (Following Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 [1976].)” State v. Mims, 220 Kan. 726, Syl. ¶ 1, 556 P.2d 387 (1976). The State argues that because the questions were asked on direct examination of the police officer, they were not intended to impeach the credibility of appellant’s story. It was stated in dicta in State v. Fisher, 222 Kan. 76, 83, 563 P.2d 1012 (1977): “No valid distinction can be made with respect to testimony on direct or cross-examination concerning the accused’s silence at the time of his arrest because the potential for prejudice is present in both situations.” The court relied upon United States v. Impson, 531 F.2d 274 (5th Cir. 1976). In State v. Satterfield, 3 Kan. App. 2d 212, 592 P.2d 135, rev. denied 226 Kan. 793 (1979), it was held that the court erred when it allowed the introduction of evidence of defendant’s election to remain silent in the absence of his attorney. The testimony objected to in Satterfield involved direct examination of a police officer. However, the court concluded that such was harmless error. But see Lassley v. State, 2 Kan. App. 2d 158, 576 P.2d 1094 (1978), where the court considered the fact that the references to post-Miranda warning silence were all during the State’s casein-chief, and not in cross-examining the defendant or in rebuttal. The court stated: “While this evidence was all designed to show guilty knowledge, none was directly used to impeach defendant’s alibi except by way of anticipation.” 2 Kan. App. 2d at 161. Regardless of the conflicting cases, as to whether it is material that such evidence was admitted on direct rather than on cross-examination, we hold the view that admission of such evidence at any time violates the principles of Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976). Appellee also asserts that the error, if any, was harmless. "‘In applying the Kansas harmless error rule (K.S.A. 60-2105) to a federal constitutional error a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. [Citation omitted.] Where the evidence of guilt is of such direct and overwhelming nature that it can be said the misconduct of counsel could not have affected the result of the trial, such misconduct is harmless error.” State v. Hamilton, 222 Kan. 341, 345, 564 P.2d 536 (1977). It does not appear that the evidence of post-arrest silence, standing alone, would affect the verdict. However, additional errors are found herein. Appellant also cites as error a question of the prosecution as to whether the witness, a former policeman, had ever been assaulted and battered by John Thomas, the appellant. Appellant’s counsel objected, and the court sustained the objection at the bench, but the ruling was not announced, nor was the jury instructed. The prosecution had asked a similar question at appellant’s first trial, and the trial court had sustained appellant’s objection then as well, also in an off-the-record discussion. The actions of the prosecutor in asking the question with regard to evidence he knew to be inadmissible were improper and constituted misconduct by counsel, as the evidence was clearly inadmissible under K.S.A. 60-455 and 60-447. The jury should have been instructed to disregard the matter. Appellant’s next contention is that the court erred in holding that alleged juror misconduct was not prejudicial to appellant. The trial court held a hearing on alleged juror misconduct and the following testimony was taken. Charles A. Rice, a Pittsburg policeman, testified that the juror had gone to the Triple R Lounge and was seated at the bar. She stated that she was on the jury for the John Thomas case. The group at the bar discussed what they would do if some guys came in and started tearing up the place, and what they would do to defend the premises. The managers of the Triple R Lounge stated they didn’t have weapons in their bar and that they could make a phone call if they had problems. The group made no comments specifically concerning any belief that John Thomas was guilty or innocent. Mr. Rice stated at the bar that he thought it wasn’t right for appellant to be using a gun, but that appellant was scared and normally would not have used a gun since he was not a vicious person. Mr. Rice stated that the juror did join in the discussion but didn’t discuss her opinion as to how she would have handled it or whether she thought John Thomas was guilty or innocent. Sandra Lee Burke, a friend of the juror, also testified. She said that the juror had told her that she had been at the Pan Club the night after the first day at trial. Then, the following night (after the verdict) the juror went back and was thrown out, allegedly because she had gone against appellant at the trial. The juror told her friend that she was upset because she had persuaded the jury to go for an involuntary manslaughter verdict instead of voluntary manslaughter. Richard Sell, the foreman of the jury in the case, also testified. He stated that the juror had not mentioned that she had been to the Pan Club and didn’t mention any discussion with others. He stated she expressed her opinion, but no more than anyone else. Patricia Rohrbaugh, a manager of the Triple R Lounge, also testified. She stated that the juror had come into the Triple R Lounge and sat at the bar. The juror simply told Rohrbaugh that she had been picked to serve on the jury in the John Thomas case. The juror herself testified that she went to the Triple R Lounge, and didn’t talk to anyone about the merits of the case or what had been testified to. She denied that she had talked to other customers about what they would have done had a similar incident occurred. She stated that she never stated any opinions as to whether she thought appellant was guilty or innocent. She testified that she then went to the Pan Club, the scene of the crime, and appellant opened the door and said, “Norma, don’t cause any trouble,” and the juror said, “I am not speaking to you.” Appellant said, “Okay.” So she went in and appellant left. She stated that she didn’t tell other jurors that she had been to the Triple R Lounge and the Pan Club. The juror stated that she had not reached an opinion regarding the guilt or innocence of appellant prior to the submission of the case to the jury. She stated she didn’t think appellant shot the victim deliberately. That opinion, she claimed, was formed only after she heard all the evidence. She also stated that she didn’t hear Rice’s discussion but that Pat Rohrbaugh had said that after the trouble she had had with the victim’s companions before, she would have never let them in her place to start with. The trial court held that while the juror’s action bordered on misconduct, there had not been a showing of prejudice. The other jurors were not aware she was at either bar. The appellant was convicted of the lesser offense that was instructed on. The law with regard to juror misconduct was stated in State v. Allen, 4 Kan. App. 2d 534, 537-538, 609 P.2d 219, rev. denied 228 Kan. 807 (1980), citing from State v. Coburn, 220 Kan. 743, 746-7, 556 P.2d 376 (1976): “ ‘Not every jury is to be disqualified because of some improper communication or contact made to a juror prior to or during trial. The granting of a mistrial or new trial because of such conduct is generally regarded as resting in the sound discretion of the trial judge who is best able to assess the impact of any such approach upon the fairness of the trial. [Citation omitted.] To warrant reversal of a judgment because of improper contact or communication between a juror and an outsider, there must be some showing or indication of injury, actual or potential, to the complaining party, or the act or conduct complained of must be such as to afford reasonable grounds to question the fairness of the trial or the integrity of the verdict, or as would tend to destroy or impair public confidence in trial by jury. [Citation omitted.] The substance of the communication may be important. If the comment relates to the merits of the case, it will more likely to be found prejudicial. However, if it relates to the case merely in a general or incidental manner it will more likely be found harmless. [Citation omitted.]’ “ ‘[I]t must be shown that remarks so made were such as would necessarily prejudice the party complaining, or it must be shown that prejudice did result therefrom, in order to warrant this court in directing new trial . . . It is noted that the jury was instructed on self-defense so that the issue was before them of whether appellant was justified in the use of the gun as reasonable force necessary to protect his property. The discussion at the two clubs centered around what should have been done to protect the club. While we would tend to think that the jury would have found that using a gun is not reasonable force in spite of the juror misconduct, we view it as a close question whether the juror misconduct here was prejudicial to appellant. We conclude it is clear that juror misconduct occurred, and that, standing alone, would probably not have prejudiced appellant. However, such misconduct must be weighed together with other trial errors mentioned herein. The next issue raised is whether the court erred in including the city ordinance in the involuntary manslaughter instruction. Appellant’s attorney objected to Instruction No. 3, the involuntary manslaughter instruction, because judicial notice had been given to the Pittsburg city ordinance and said ordinance had been included in the involuntary manslaughter instruction. The instruction given stated: “The offense of voluntary manslaughter includes the lesser included offense of involuntary manslaughter. If you find the defendant guilty of voluntary man slaughter, then you need not consider the lesser offense. However, if you cannot agree that the defendant is guilty of voluntary manslaughter, you shall consider if he is guilty of involuntary manslaughter. “To establish the charge of involuntary manslaughter, each of the following claims must be proved: 1. That the defendant unintentionally killed Edward Jameson; 2. That it was done while in the commission of an unlawful act of shooting a firearm within the City of Pittsburg, Kansas, under circumstances that evidenced a realization of the imminence of danger to the person of another coupled with a reckless disregard for the probable consequences of such conduct; and 3. That said killing occurred on or about the 19th day of April, 1978, in Crawford County, Kansas. “The act of shooting a firearm in the City of Pittsburg, Kansas, is against the ordinances of said city and is unlawful.” Involuntary manslaughter is defined by K.S.A. 21-3404: “Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state which statute or ordinance is enacted for the protection of human life or safety.” (Emphasis added.) The Pittsburg city ordinance relied upon in the instruction is Section 15-404: “DISCHARGING FIREARMS. Every person who shall discharge firearms within this city shall, upon conviction, be punished by a fine not exceeding One Hundred Dollars ($100.00): Provided, That the provisions of this section shall not apply to the discharging of firearms in any licensed shooting gallery or by a gunsmith in his trade, or by the officers of the law in the discharge of their duties.” Appellant first states in his brief that he was not given any advance notice and was not afforded an opportunity to prepare to meet the request for judicial notice of the statute as required by K.S.A. 60-409(c)(2). Appellant raises this for the first time on appeal. Appellee states in its brief that the fact that the ordinance would be relied upon as the underlying misdemeanor for involuntary manslaughter was communicated to defense counsel well in advance of trial. Since appellant did not raise the issue at trial we have no statement in the record as to which contention is true. “A point not raised before, or presented to, the trial court cannot be raised for the first time on appeal before this court.” Fleming v. Etherington, 227 Kan. 795, Syl. ¶ 7, 610 P.2d 592 (1980). Appellant further argues that the ordinance is not a “positive law which is enacted for the protection of human life or safety.” We must determine as a matter of law whether the unlawful act relied upon involves a statute or ordinance enacted for the protection of human life or safety. State v. Brooks, 187 Kan. 46, 354 P.2d 89 (1960). We hold that the ordinance prohibiting the discharge of firearms within the city has its purpose in the protection of human life or safety. Further, appellant argues that Section 15-404 of the ordinance only prohibits the intentional discharge of firearms. A reading of the ordinance indicates that any discharge of firearms is prohibited, whether intentional or accidental. Lastly, appellant argues that when the jury foreman asked for clarification of Instruction No. 3, the trial court should have given further instruction. Under K.S.A. 60-248(e), the trial court may in its discretion make a response to the request of the jury for further information as to the law, as the court finds to be required under the circumstances. “[I]nstances may sometimes occur in the course of a trial where the jury raises questions which are irrelevant or which are already adequately covered by the original instructions. Under those circumstances the trial court may decline to answer such questions and direct the jury to reread the instructions already given. A trial court is vested with a great amount of discretion in answering questions directed to him by a jury after the jury has begun its deliberations. The important consideration is that the jury be properly instructed on the essential issues presented at the trial and this is particularly true in a criminal proceeding where the question presented by the jury involves the basic elements of the criminal offense on which the defendant is being tried.” State v. Bandt, 219 Kan. 816, 823-824, 549 P.2d 936 (1976). Appellant merely asserts that the jury asked the judge a question and was confused. He has not indicated that the essential elements of the crime were not presented. The instruction seems to contain all of the elements of the statute and follows PIK Crim. 56.06 (1971). We see no abuse of discretion in failing to further instruct the jury. We doubt if any of the aforementioned irregularities would, individually, constitute prejudice to the appellant. We believe, however, that cumulatively, the admission of evidence of appellant’s post-arrest silence, the failure to instruct the jury to disregard a prosecutor’s improper question, and the juror misconduct were such that the jury may have reached a different result had they not occurred. Reversed and remanded.	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Woleslagel, J.: This suit was filed as one to quiet title to land owned by plaintiffs except for mineral rights to coal underlying the land. Defendant's owned the mineral rights through six mineral deeds, each over fifty-five years old. In five of the six mineral deeds there were clauses giving the grantee the right to use the surface also, upon payment of $70 or $75 per acre. The trial court held that the price for use of the surface was now inequitable and that should defendant exercise its option to take any surface, it must pay the reasonable value at the time of its use. Defendant Southwestern States Management Company appeals from that part of the decision. We affirm. Southwestern States Management Company is now the only defendant. It is a subsidiary of the Missouri-Kansas-Texas Railroad Company, which was abandoning a right-of-way over part of this land. There was originally a controversy over the time personal property should be removed from the right-of-way, but that was disposed of before this appeal was heard. The only issue now relates to the clauses giving the defendant an option to use of the surface. The defendant states two issues to.be decided on this appeal. “POINT I. Did the Trial Court commit reversible error in its judgment that appellant’s deeds to the coal, purchased in 1925, providing for payments of $70.00 to $75.00 per acre for use of the surface, are unenforceable as the same has not been exercised in a reasonable time; that they are indefinite as to the land to be taken, and inequitable as to price at this time? “POINT II. Did the Trial court commit reversible error in its judgment that at any time defendant-appellant Southwestern States Management Co., a Missouri corporation, desires to mine for coal on plaintiffs-appellees’ land, that said party shall pay the market value for the land when taken for use by defendant-appellant?” Plaintiff’s land is a ranch in southwestern Labette County of about 2,040 acres. The six deeds involved cover about 880 of those acres. The original deeds were all executed over 55 years ago; this defendant obtained its conveyance in 1962. There is no dispute that the original deeds and the deeds that follow them are effective to convey to the defendant the coal underlying the 880 acres. No coal, however, has ever been mined and there was no showing of any present intent to mine. Because no use of the deeds by defendant has been shown, the defendant argues in its brief that there is no controversy and no decision adverse to the defendant should have been entered. It also argues that it was error for the trial court to, in effect, convert a petition to quiet title into a suit for declaratory judgment. In the trial court proceedings, in the briefs filed in this court, and during oral argument it appears to be conceded that the plaintiffs were attempting to sell this ranch but the prospective purchaser could not obtain a commercial loan so long as it appeared of record that 880 acres might be taken from the purchaser upon payment of $70 per acre for part and $75 an acre for the rest. The point relative to there being no actual controversy appears to be adequately answered by Woolums v. Simonsen, 214 Kan. 722, 522 P.2d 1321 (1974), which was a quiet title action to determine what, if any, rights some future beneficiaries might have under a will. The claim of no present controversy was raised. At page 729, the court stated: “The statute specifically recites that no action or proceeding shall be open to objection on the ground that a judgment or order merely declaratory of right is the only relief requested. “Furthermore under K.S.A. 60-1002 a quiet title action may be brought by any person claiming an interest in real property against any person who claims an interest therein adverse to him, for the purpose of determining such adverse claim.” The pretrial order in this case states that the plaintiffs claimed the only issue was whether the $70 and $75 per acre provisions were valid and the defendant agreed the question was whether those prices were a binding contract. Syllabus paragraph 5 of Woolums states: “As a general rule the courts will not give a construction to or declare the rights of parties upon a state of facts which has not arisen, nor upon a matter which is future, contingent, and uncertain, unless a present right depends upon the decision or there are other special circumstances to satisfy the court that it is desirable at once to decide on the future rights.” 214 Kan. at 722. The position these plaintiffs found themselves in would be as much a “special circumstance” as that faced by the devisees and legatees in Woolums. There are two additional reasons that defendant’s position on these matters is not well taken. First, a position not raised in the trial court may not be presented on appeal. Fleming v. Etherington, 227 Kan. 795, Syl. ¶ 7, 610 P.2d 592 (1980). Second, the pretrial order was apparently agreed upon by the parties. “When a pretrial order is agreed on by the parties and followed by the trial court in deciding the issues as set forth in the order, the parties have acquiesced therein and cannot enlarge those issues on appeal. Such an order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” Country Club Home, Inc. v. Harder, 228 Kan. 756, Syl. ¶ 1, 620 P.2d 1140 (1980), modified 228 Kan. 802, 623 P.2d 505 (1981). Having concluded the trial court properly proceeded by way of a declaratory judgment, we turn to the language of defendant’s conveyances. The trial judge held that the purchase of surface rights would have to be exercised in a reasonable time and 55 years was too long to qualify as reasonable. He also held the deeds were indefinite as to land that could be used. While we arrive at the same final conclusion as the trial judge, we do so by a slightly different route. Two of the deeds provided the grantee could use “so much of the surface . . . as he may desire.” One deed called for “such part of the surface of the land . . . as he may desire.” One limited the use to “such part of surface not under cultivation.” One provided the surface was to be taken “along the boundry [sic] ... or along the M.K.&T. Right of Way.” We are not concerned with the sixth deed as it called for paying appraised value at the time of taking. No time limit was set in any deed. Except for the deeds that called for uncultivated land to be used or the taking to be along the boundary or railroad right-of-way, all deeds covered the full acreage above the coal minerals conveyed and appear to satisfy any specificity requirements as to surface land that could be taken. The deeds, however, did leave to the choice of the grantee whether it would take any surface at all. If this right is classified as a legal option it would be completely void or, according to the holding of some courts, void unless exercised within a reasonable time. See Sinclair Prairie Oil Co. v. Worcester, 163 Kan. 540, 550-51, 183 P.2d 947 (1947); Campbell v. Warnberg, 133 Kan. 246, 299 Pac. 583 (1931); 77 Am. Jur. 2d, Vendor and Purchaser § 42; Annot., Option Created by Will, 44 A.L.R.2d 1214. It would come within the operation of the rule against perpetuities as an unreasonable restraint on alienation. Beverlin v. First National Bank, 151 Kan. 307, 98 P.2d 200 (1940); Beloit Bldg. Co. v. Quinn, 145 Kan. 507, 66 P.2d 549 (1937); Annot., Perpetuities—Independent Option, 66 A.L.R.3d 1294, 1300; Annot., Perpetuities—Pre-emptive Rights to Realty, 40 A.L.R.3d 920. The plaintiff relies upon Audo v. Mining Co., 99 Kan. 454, 162 Pac. 344 (1917), which we find to be similar as to controlling facts. The principal difference is that Audo involved a reservation of a repurchase right by the mining company, as distinct from an original purchase right held by the defendant in this case. In Audo, the defendant reserved the right to repurchase “all or any portion of the premises conveyed” by paying the average price per acre paid when the first transaction was made. When the plaintiff brought suit contesting the validity of the reservation, the mining company tendered a sum measured by that average price per acre and cross-petitioned for specific performance. The cross-petition was denied, apparently because of time lapse only, as the court stated: “More than ten years elapsed between the execution of the deed and the commencement of this action. The deed fixed no time within which this option to repurchase by the defendant was to be exercised. Under these circumstances that option should have been exercised within a reasonable time.” 99 Kan. at 461. While an option contract for use or purchase of land at some indefinite time is either void as violating the rule against perpetuities or valid only if exercised within a reasonable time (see Campbell, 133 Kan. at 250), the same may not be said of an option created by lease or deed. The reason for this is stated in 54 Am. Jur. 2d, Mines and Minerals § 210, p. 389, “[U]nless the language of the conveyance by which the minerals are acquired repels such construction, the mineral estate carries with it the right to use as much of the surface as may be reasonably necessary to reach and remove the minerals.” Accordingly, it would follow that when this defendant acquired the coal in place, it also acquired the right to use any surface necessary to remove the coal without need of that right to be defined in the deed. That right, of course, could only be exercised by paying fair compensation for surface use. As far as this record shows the $70 or $75 per acre would have been adequate at the time the deeds were executed. While it might seem that court decisions overreach when construing deeds to underlying minerals as carrying also the right to use necessary surface to recover the minerals, this construction is really nothing more than an attempt to practically implement the extent of the ownership of the two owners. It attempts to insure that each owner may, practically speaking, enjoy and profit from his ownership. A question arises as to whether such use of surface as is implied, without being specifically provided for in the conveyance, may be extended by terms of the grant in the deed. It is obvious that extension impairs the equalization of rights of enjoyment to the detriment of the surface owner. Some states have held that “surface necessary to remove the coal” is all that may be provided for even if the conveyance, by its terms, would indicate otherwise. For example, Colorado in Fuel Company v. Heflin, 148 Colo. 415, 366 P.2d 577 (1961), held the option in a deed to “repurchase any part of the surface necessary to carry on mining operations” plus “up to 30 acres” for housing as void in view of the rule against perpetuities. Similarly, in Middleton v. Western Coal and Mining Company, 241 F. Supp. 407 (W.D. Ark. 1965), the court held a deed clause granting the right to take overlying surface at an amount to be reached by arbitration if not by agreement was not limited to what was necessary to recover minerals, and was therefore void for the same reason. A similar decision was reached in Coal Company v. Strong, 129 W.Va. 832, 42 S.E.2d 46 (1947), where the grant covered the land above the coal conveyed and it appeared the coal company wanted to purchase in order to strip mine. In like manner, Skivolocki v. East Ohio Gas Co., 38 Ohio St. 2d 244, 249, 313 N.E.2d 374 (1974), by way of dicta indicated it would hold a surface option invalid if it involved a taking for strip mining rather than for deep mining. The court noted that strip mining causes “total disruption of the surface estate.” It felt this was not consistent with one party enjoying the mineral estate and the other enjoying the surface estate. Relative to the above cases, it is common knowledge that Southeastern Kansas has been the locale of both deep shaft and strip mining. The record here gives us no indication of which might be intended under the deeds in this case. Since the appellees here have not cross-appealed to claim the deeds are void as to surface use, but, instead, merely request affirmance of the decision of the trial court as to price per acre, we conclude they concede the deeds are not void as to conveyances of surface use. We pass no judgment about this area of law. The reach of our decision is limited to the issues as framed on appeal rather than all issues that might have been raised. In Quarto Mining Co. v. Litman, 42 Ohio St. 2d 73, 326 N.E.2d 676, cert. denied 423 U.S. 866 (1975), the mining company sought specific performance of surface purchase provisions in two 1906 deeds to coal under the defendant’s land. One deed provided for payment of $100 per acre of surface when taken and the other called for $200 per acre. The deeds contemplated underground mining and covered surface for mining, ventilating, draining, and transporting coal from other lands. We consider the case to be in point as to all issues before us. The Ohio court held: (1) The description of surface that could be acquired was not so indefinite that specific performance should not apply; (2) the grant of the reasonable use of surface constituted a vested part of the mineral estate rather than a non-vested contingent equitable interest; (3) neither $100 nor $200 per acre was fair compensation in 1975 and specific performance was conditioned upon payment of the actual value of any acres taken. To condition a grant of specific performance upon paying an adequate price rather than a price set before the value of money has eroded by inflation is common. 71 Am. Jur. 2d, Specific Performance § 88, p. 120. Of many circumstances calling for a price adjustment in cases, the following are noted: The contract price would work a hardship not within contemplation of the parties at the time of making the contract. Munchak Corp. v. Caldwell, 46 N.C. App. 414, 265 S.E.2d 654 (1980), aff’d as modified 301 N.C. 689, 273 S.E.2d 281 (1981). When specific performance is denied, the court is allowed considerable latitude in making orders to obtain equity between the parties. Schaefer & Associates v. Schirmer, 3 Kan. App. 2d 114, 590 P.2d 1087 (1979). Specific performance is properly denied when land is worth about $1,000 or $1,500 per acre and the contract price is only $361.72. Hodge v. Shea, 252 S.C. 601, 168 S.E.2d 82 (1969). A contract will not be specifically enforced if it “drives too hard a bargain for a court of conscience to assist.” Campbell Soup Co. v. Wentz, 172 F.2d 80 (3rd Cir. 1948). Under the pretrial order the issue to be determined was whether, if defendant ever decided to use the surface, it could do so by paying $70 to $75 per acre, or whether it would be required to pay the current market value. We think the latter was the appropriate decision by the trial court. Affirmed.	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Meyer, J.: This is an action for breach of warranty, misrepresentation and breach of contract for the purchase of a new home. Elfrieda A. Scantlin (appellant) entered into a contract for the purchase of a house under construction by appellee Superior Homes, Inc. (Superior). The realtor was appellee Manning Real Estate (Manning). Appellee Peoples Savings & Loan Association of Sterling, Kansas (Peoples), financed the construction loan for the builder and also financed appellant’s purchase loan. Appellant testified in a deposition that she was told by Manning’s agents and also Peoples that Superior was a good builder and built excellent quality homes. The base price of the home was $63,900, but the contract price was $66,393 due to several changes in the house made during construction at the request of appellant to suit her tastes. Prior to closing, appellant discovered certain things wrong with the building and thus did not close on January 15, 1978, when the contract for purchase specified. Superior sued appellant for specific performance. However, the suit was dismissed in consideration of an agreement to place $1,000 of the purchase price in escrow pending completion of a specified list of defects needed to be corrected by Superior. Closing occurred on March 2, 1978. The agreed price paid at closing was $70,674.57. The closing price included costs incurred for failure to close on January 15, 1978, and also additional changes added at the request of appellant. After closing, appellant discovered that items listed were either not taken care of by the builder, or were not taken care of satisfactorily. Further, additional defects not listed at closing became known to appellant. Appellant filed suit against Superior, Peoples and Manning. At the pretrial, the court (1) denied appellant’s request for jury trial; (2) granted Peoples’ and Manning’s motions for summary judgment; (3) ruled the action did not involve breach of warranty; and (4) ruled the lawsuit was limited to the contract entered into at closing on March 2, 1978, holding an accord and satisfaction was a defense and thus limiting appellant’s evidence to breaches of that contract. Objections to the pretrial order were promptly filed. The matter was tried to the court wherein rulings from the pretrial were adopted. The court awarded appellant $750.00 plus % of the interest, and Superior was allowed to keep $250.00 plus V4 of the interest, thus disposing of the $1,000 in escrow. Appellant brings this appeal. Appellant contends the court erred in refusing her request for a jury trial. Superior argued in its brief that the appellant waived jury trial because there was no demand for jury trial in the petition, nor was a separate demand filed. The appellant requested jury trial orally at the pretrial conference. K.S.A. 60-238 provides that any party may demand jury trial by serving on other parties a demand in writing at any time within 10 days of service of the last pleading. The last pleading was filed September 14, 1978, and the pretrial conference was April 30, 1979. Hence, the “demand” for jury trial was not timely made nor was it in writing. “In the absence of a timely demand for a jury trial, a party waives the right to a trial by jury.” Horton v. Montgomery Ward, 199 Kan. 245, 247, 428 P.2d 774 (1967); Mansfield Painting & Decorating, Inc. v. Budlaw Services, Inc., 3 Kan. App. 2d 77, 589 P.2d 643, rev. denied 225 Kan. 844 (1979). Under K.S.A. 60-238, a waiver may be set aside by the judge in the interest of justice or when the waiver inadvertently results without serious negligence of the party. In addition, the court in its discretion may order a trial by jury of any or all issues. K.S.A. 60-239(b). We conclude there was no abuse of discretion in failing to set aside the waiver or in failing to order a trial by jury on its own motion. Appellant contends the court erred in granting summary judgment for Manning Real Estate and Peoples Savings & Loan Association at the pretrial conference. In Dugan v. First Nat'l Bank in Wichita, 227 Kan. 201, Syl. ¶ ¶ 1, 2, 606 P.2d 1009 (1980), the court said: “Summary judgment is proper only if there are no genuine issues of material fact. “A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist.” Furthermore, “An appellate court in examing the validity of a motion for summary judgment should read the record in the light most favorable to the party who defended against the motion. It should accept such party’s allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant.” Collier v. Operating Engineers Local Union No. 101, 228 Kan. 52, Syl. ¶ 2, 612 P.2d 150 (1980). Appellant’s main argument is that Manning and Peoples should not have been dismissed since the motions for summary judgment were not in compliance with Supreme Court Rule No. 141 (225 Kan. lxviii) which states: “No motion for summary judgment shall be heard or deemed finally submitted for decision until: “(a) The moving party has filed with the court and served on opposing counsel a memorandum or brief setting forth concisely in separately numbered paragraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record); and “(b) Any party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter, unless the time is extended by court order, a memorandum or brief setting forth in separately numbered paragraphs (corresponding to the numbered paragraphs of movant’s memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which preclude summary judgment (with precise references as required in paragraph [a], supra). "Provided, however, That said motion may be deemed submitted by order of the court upon expiration of twenty-one (21) days, or expiration of the court-ordered extended period, after filing and service on opposing counsel of the brief or memorandum of moving party notwithstanding the failure of the opposing party to comply with paragraph (b), supra. In such case the opposing party shall be deemed to have admitted the uncontroverted contentions of fact set forth in the memorandum or brief of moving party.” In Hall v. Twin Caney Watershed Joint Dist. No. 34, 4 Kan. App. 2d 202, 604 P.2d 63 (1979), the court of appeals ruled on the propriety of granting a motion for summary judgment at pretrial conference when no motion or statement of uncontroverted facts had been filed prior to the judgment as required by Supreme Court Rule No. 141. The court of appeals held that even though there was no formal compliance with the rule, all of the requisites for summary judgment were met by the pretrial conference. In Hall, no objection was made as to the procedure followed and both parties had submitted briefs to the court. In the case at bar, there was no objection made as to failure to comply with Supreme Court Rule No. 141. We conclude the failure to comply with Supreme Court Rule No. 141 did not bar the relief requested. In addition, there is no merit to appellant’s contention that an issue of material fact exists. Appellant, in her deposition, states that her basis for the allegation of fraudulent misrepresentations was that Manning’s agent and Peoples’ agent stated that the builder was a good builder and built excellent quality homes. This type of representation has been found to be insufficient to constitute fraudulent representation as a matter of law in Nordstrom v. Miller, 227 Kan. 59, 605 P.2d 545 (1980), and in Goff v. American Savings Association, 1 Kan. App. 2d 75, 561 P.2d 897 (1977). In Nordstrom v. Miller, summary judgment was held to be proper for a real estate agent who represented that certain wells were good and would last a long time. It was therein stated: “[I]n order for an agent to be liable for fraud there must be a fraudulent intent to deceive.” 227 Kan. at 63. While Nordstrom involved an agent who merely repeated what the seller told him, and the present case involved independent knowledge on the part of the agent that Superior built good homes, there is no evidence that the statement was made in reckless disregard of the truth. Even appellant admits that the other houses that she inspected which were constructed by the same builder were of good quality. In Goff v. American Savings Association, 1 Kan. App. 2d 75, summary judgment was held to be proper in favor of the financer of the construction loan. The agent of American Savings told plaintiff she had a good contractor and that the basement would not leak. It was therein stated: “The existence of fraud is ordinarily a question of fact to be heard by the trier of facts. The actionable nature of a representation, however, involves a question of law. Where the facts are undisputed and only one reasonable conclusion can be reached, or where there is an entire failure of proof, the trial court may apply the principles of law to the facts and grant summary judgment.” 1 Kan. App. 2d at 79-80. “[F]raud cannot be predicated upon what as a matter of law amounts to an expression of an opinion and which cannot reasonably be understood to be anything else.” 1 Kan. App. 2d at 81. Taking appellant’s statements in her deposition as true and construing the evidence most favorably to appellant, it can be ruled that the representations alleged here were merely expressions of opinion and were not made with intent to deceive or with a reckless disregard of the truth. We find no error in the trial court’s order granting summary judgment in favor of Manning and Peoples. Appellant further contends the court erred in ruling appellant could not proceed against Superior on the theory of breach of implied warranty. Kansas has recognized an implied warranty of fitness in the sale of new housing, at least when the seller built the house. Miles v. Love, 1 Kan. App. 2d 630, 633, 573 P.2d 622, rev. denied 225 Kan. 845 (1977); McFeeters v. Renollet, 210 Kan. 158, 165, 500 P.2d 47 (1972). “Where a person contracts to perform work or to render a service, without an express warranty, the law implies an undertaking or contract on his part to do the job in a workmanlike manner and to exercise reasonable care in performing the work or service. (Following Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P.2d 986.)” Gilley v. Farmer, 207 Kan. 536, Syl. ¶ 3, 485 P.2d 1284 (1971), cited in McFeeters v. Renollet, 210 Kan. at 163. The trial court ruled that the action for breach of implied warranty was no longer viable because such claim was settled as part of the accord and satisfaction. Whether it was error to rule that it was part of the accord and satisfaction is discussed below. Appellant’s final contention is that the court erred in limiting appellant’s proof to items within the accord and satisfaction and adopting the ruling of the pretrial conference judge that there had been an accord and satisfaction as a matter of law. The appellant was not allowed to produce evidence to prove prior existing latent defects in the home which were not discovered at the time the agreement of March 2, 1978, was reached. The court ruled at the pretrial conference that there was an accord and satisfaction as a matter of law with regard to all of appellant’s claims about the home. “An accord is a contract between creditor and debtor for the settlement of the claim by some performance other than that which is due. Satisfaction takes place when the accord is performed.” Thompson v. Meyers, 211 Kan. 26, 32, 505 P.2d 680 (1973), citing from Lighthouse for the Blind v. Miller, 149 Kan. 165, 86 P.2d 508 (1939). “To constitute an accord and satisfaction, there must be an offer in full satisfaction of the obligation accompanied by acts, declarations or such circumstances that the party to whom the offer is made is bound to understand that if he accepts it is in full satisfaction of and discharges the original obligation.” Gray v. Amoco Production Company, 1 Kan. App. 2d 338, Syl. ¶ 10, 564 P.2d 579 (1977), aff’d in part, rev’d in part, 223 Kan. 441, 573 P.2d 1080 (1978). “To have an accord and satisfaction there must be a complete meeting of the minds that the claim of the party has been fully satisfied and discharged.” Sanders v. Birmingham, 214 Kan. 769, 774, 522 P.2d 959 (1974). While it is clear that the $1,000 held in escrow was there to settle the claims for the defects listed at the time of the closing, it is not clear that the intent was to settle all possible claims for breach of implied warranty based on defects not then known or discoverable with reasonable diligence. In Gray v. Amoco Production Company, the issue was whether acceptance of a payout of suspended royalties by royalty owners barred a later claim for interest. The payout did not contain any indication whether or not interest was included. The court held that it was unable to find as a matter of law that there was a meeting of the minds that the claims were fully satisfied and discharged. “[W]here ... it appears an issue of fact exists as to what the payment and the accord and satisfaction actually covered, that question is to be determined by the trier of fact on the basis of whether there has been a meeting of the minds of the parties and the unity of purpose and intention as to the extent of the settlement.” Barton v. Welker, 185 Kan. 294, 299, 341 P.2d 1037 (1959). In order to affirm the trial court, this court would have to hold that the circumstances conclusively proved an intent to settle all possible claims for defects in the house. This we cannot do. Appellant also claims that the agreement was an executory accord. In Coffeyville State Bank v. Lembeck, 227 Kan. 857, 859-60, 610 P.2d 616 (1980), the issue was whether a particular settlement agreement was an executory accord or a novation. The court cited Elliott v. Whitney, 215 Kan. 256, 259-60, 524 P.2d 699 (1974): “ ‘Novation may be broadly defined as a substitution oí a new contract or obligation for an old one which is thereby extinguished [citation omitted]. It is a new contractual relation which has four requisites: A previous valid obligation, the parties must agree to the new contract, the new contract must be valid and the old obligation must be extinguished by the substitution for it of the new one [citations omitted]. “ ‘An executory accord has been defined in the following manner: “The term ‘accord executory’ is and always has been used to mean an agreement for the future discharge of an existing claim by a substituted performance. In order for an agreement to fall within this definition, it is the promised performance that is to discharge the existing claim, and not the promise to render such performance.” [Citation omitted.] “ ‘The distinction between a novation and an executory accord becomes signif icant in event of breach of the new agreement. If the new agreement constitutes a novation, a breach does not revive the discharged claim and the parties’ rights are controlled by the new agreement [citation omitted]. “ ‘On the other hand the effect of a breach of an executory accord is stated in the following: “Since an accord executory operates at best no more than as a suspension of the antecedent claim, a material breach of the accord by the debtor lifts the suspension and makes the creditor’s prior claim again enforceable.” (6 Corbin on Contracts, § 1275, p. 111.) “ ‘The eminent author just cited pinpoints the problem at hand in this fashion: “It is frequently difficult to determine whether a new agreement is a substituted contract operating as an immediate discharge, or is an accord executory the performance of which it is agreed shall operate as a future discharge. It is wholly a question of intention, to be determined by the usual processes of interpretation, implication, and construction.” [Citation omitted.]’ ” Appellant asserts the agreement was an executory accord and that the breach in performance of the accord made the original claim enforceable. The trial court awarded appellant $750.00 so it appears that there was a breach of the accord, in that the repairs performed were either not done or were not satisfactory. We conclude this cannot be termed an executory accord because the $1,000 in escrow appears to be the liquidated damages in the event no repairs were performed. It was not the repairs that extinguished appellant’s claims of defects but the promise to take $1,000 off the purchase price. The failure to make repairs would not make the claim for the listed defects again enforceable. We conclude that the agreement between the parties constituted an accord and satisfaction only as to such defects which were known, or should have been known, at the time said agreement was reached. We cannot say that such agreement extended to all conceivable rights the appellant has herein. Hence, we conclude that the agreement constituted a settlement as to all defects listed by appellant, as well as to all defects reasonably discoverable by appellant at the time of such settlement agreement. We conclude that the judgment of the trial court must be reversed and that this case be remanded to the trial court. That court is instructed to afford appellant the opportunity to prove any damages she suffered which were unknown to her and which were not discoverable by her with reasonable diligence at the time of settlement. Reversed and remanded with instructions.	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Spencer, J.: Following trial to a jury, defendant was adjudged guilty of aggravated burglary (K.S.A. 21-3716). Inasmuch as the issues on appeal relate only to asserted trial errors and not to the sufficiency of the evidence, a statement of facts leading to the arrest and conviction of defendant is deemed unnecessary. Defendant was charged with unlawfully, willfully, knowingly, and without authority entering into and remaining within a building located at 2510 East Stadium, Wichita, Sedgwick County, Kansas, occupied at the time by Roosevelt Frazier, Jr., and Valirae M. Dupree, with intent to commit theft therein. The offense was alleged to have been committed on or about April 28, 1980. After the jury had been selected but prior to introduction of evidence, the State presented a motion in limine seeking to prevent cross-examination by defendant of Frazier and Dupree, who were to be witnesses in the case, regarding earlier convictions of arson and attempted arson. The trial judge, out of the presence of the jury, examined the files of the district attorney, which evidently contained police reports in the two arson cases, and arrived at the conclusion the charges in those cases did not involve dishonesty. The judge announced he was not going to allow cross-examination as to those charges. Defense counsel made no objection to the ruling of the court, but announced: “If they say they are of good character, we feel we should be able to cross-examine them, if they say they are of good moral character.” The court indicated if the prosecutor raised that issue, defendant would be entitled to cross-examine. The credibility of the two witnesses was not thereafter made an issue in the trial and defendant was not afforded the opportunity to examine as to credibility. He now argues it was error to grant the motion in limine. As stated in State v. Quick, 226 Kan. 308, 597 P.2d 1108 (1979): “The primary purpose of the motion in limine is to prevent prejudice during trial. Its use should be strictly limited to accomplish that purpose. It must not be used to choke off a valid defense in a criminal action.” Syl. ¶ 3. “The order resulting from a motion in limine may prohibit reference during trial proceedings to material which is irrelevant or prejudicial to a fair trial. The order is a temporary protective order. It is subject to change during the trial; and to predicate error thereon it will be necessary to again present the material or proffer the evidence during trial on motion to reconsider.” 226 Kan. at 313. Defendant did not at any time during trial make any proffer of evidence regarding the credibility of the two witnesses, nor did he move for reconsideration of the motion in limine. Under the circumstances, unless it can be said the crime of arson in and of itself is one involving dishonesty or false statement and/or the motion in limine was used to “choke off a valid defense,” there was no error. K.S.A. 60-421 provides in part: “Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility.” In considering what constitutes the crime of dishonesty within the meaning of K.S.A. 60-421, the court in State v. Laughlin, 216 Kan. 54, 55, 530 P.2d 1220 (1975), stated: “Crimes which are impulsive or which are committed in the heat of passion, or crimes which are founded on negligence, or crimes which in no way reflect a dishonest nature, would not normally reflect on the credibility of the witness and should not be admissible. “On the other hand, there are crimes which are inherently dishonest, whether because of their willful character, disregard for decency, or general lack of fairness.” As defined by K.S.A. 21-3718, arson is knowingly, by means of fire or explosive: (a) damaging any building or property in which another person has any interest without the consent of such other person; or (b) damaging any building or property with intent to injure or defraud an insurer or lienholder. Certainly, the crime of arson as defined by (b) of the statute is inherently dishonest. However, the crime, defined by (a) of the statute might conceivably have been impulsive or committed in the heat of passion, and not reflect on the credibility of a witness. Apparent from the record before us is the fact that certain records and reports were made available to the trial judge, from which it was concluded the charges of arson and attempted arson which had been brought against the two witnesses did not involve dishonesty. Those records are not a part of the record on appeal. It is incumbent upon the appellant to designate a record sufficient to present issues on appeal, and to establish claimed error. Farmers Ins. Exchange v. Schropp, 222 Kan. 612, Syl. ¶ 8, 567 P.2d 1359 (1977). In the absence of an adequate record on appeal, it is not possible for this court to determine whether the prior crimes of the two witnesses did in fact involve dishonesty. Such being the case, we conclude the trial court did not err in granting the protective order. Defendant next complains the trial court erred in failing to instruct the jury that the intent to commit a theft must precede the illegal entry into the victim’s dwelling. At the close of all the evidence, defendant proposed the following instruction: “It is a defense in this case, if by reason of ignorance or mistake, the defendant did not have at the time the mental state which the statute prescribes as an element of the crime.” This was not accepted and the court instructed the jury: “The defendant is charged with the crime of Aggravated Burglary. The defendant pleads not guilty. “To establish the charge, each of the following claims must be proved: “1. That the defendant knowingly entered and remained in a building located at 2510 East Stadium; “2. That the defendant did so without authority; “3. That the defendant had the intent to commit a theft therein; “4. That at the time there were human beings in 2510 East Stadium; and “5. That this act occurred on or about the 28th day of April, 1980, in Sedgwick County, Kansas.” Emphasis added. Procedurally, the State contends defendant is now precluded from raising this issue on appeal because defendant failed to specifically object to the instruction. K.S.A. 22-3414(3) provides in relevant part: “No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.” The record reveals, however, that defendant attempted to voice an objection to the sufficiency of the instruction given but was not afforded adequate opportunity to do so. One purpose underlying K.S.A. 22-3414(3) is to provide the trial court with an opportunity to correct errors in instructions prior to their being submitted to the jury. Here, the trial court concluded its instructions were sufficient and it did not need to hear the basis for counsel’s objection. In any event, the attempt to object and submission of the proposed instruction satisfy the requirements of the statute and defendant should not be precluded from presenting this issue on appeal. Cf. State v. Gordon, 219 Kan. 643, 549 P.2d 886 (1976). It is obvious from this record that the trial court adapted its instruction to the charge against defendant, i.e., “did . . . enter into and remain within . . . K.S.A. 21-3716 provides in relevant part: “Aggravated burglary is knowingly and without authority entering into or remaining within any building . . . with intent to commit a felony or theft therein.” PIK Crim. 59.18 shows the alternative terms in parentheses [’’(entered) (remained in)”]. Properly prepared, this instruction would employ but one of the alternative terms, depending upon the evidence adduced at trial, for the phrases “entering into” and “remaining within” refer to distinct factual situations. “Entering into” refers to the situation where a defendant enters without authorization. The specific intent to commit a felony or theft must exist at the time of the unauthorized entry. People v. Collins, 53 Ill. App. 3d 114, 119, 368 N.E.2d 685 (1977). “Remaining within” refers to the situation where defendant’s initial entry is authorized, but at some later time that person’s presence becomes unauthorized. Thus, one who enters a department store during business hours and secrets himself or herself in a public washroom until the store is closed, remains without authority within the meaning of our burglary statute. Vernon’s Kansas Crim. C. § 21-3715 (1971). It was undisputed that defendant entered the home without authority and only his intent at the time of entry was in question. Defendant argues the jury could well have believed he “mistakenly entered the home and then it entered his mind to commit a theft which he attempted to do.” Clearly, the trial judge should have instructed only as to “entering.” However, it is obvious that under the instruction as given the prosecution was required to prove at a minimum that defendant “entered” without authority and with intent' to commit a theft. Although the court’s instruction may have been technically incorrect, defendant’s case was not prejudiced by including within that instruction the phrase “and remained.” Finally, defendant argues it was error to deny his request for an instruction on the definition of “theft” as defined by K.S.A. 1980 Supp. 21-3701. We find no merit to this contention. Instructions must contain a definition or explanation of the crime charged in precise and accurate language, setting forth the essential elements thereof. If the crime is defined by statute, it is generally sufficient to give the statutory definition although the exact language of the statute need not be used. 23A C.J.S., Criminal Law § 1194. It is not necessary to define every word or phrase in the instructions. It is only when the instructions as a whole would mislead the jury, or cause them to speculate, that additional terms should be defined. A term which is widely used and which is readily comprehensible need not have a defining instruction. A word or phrase which persons of common intelligence and understanding can comprehend is not one which requires definition. State v. Norris, 226 Kan. 90, 595 P.2d 1110 (1979). In this case, the jury’s concern was whether defendant entered the home with intent to take and keep any of the owner’s property. The word “theft” did not require further definition. Affirmed.	[ -16, -24, -19, 61, 9, 96, 56, -68, 67, -107, 34, 83, -19, -54, 4, 110, -78, 125, 85, 97, -60, -105, 27, -61, -10, -109, 81, 85, 55, -53, -16, -108, 12, 112, -54, -43, 70, 72, -57, 92, -114, 9, -72, -14, -45, 74, -96, 59, 52, 26, -15, -66, -77, 43, 21, -61, -55, 40, 75, 61, 112, -39, -69, 21, 111, 20, -93, 39, -101, 7, 116, 36, -44, 49, 1, -24, 51, -74, -110, -12, 79, 43, -24, 98, 98, 33, 27, -17, -88, -128, 15, 39, -99, -89, -72, 64, 73, 44, -105, -103, 117, 50, 38, 104, -17, -36, 93, 100, 2, -49, -112, -109, 13, 52, 0, -41, -5, -95, 0, 113, -52, -26, 86, 118, 80, -69, -50, -107 ]
The opinion of the court was delivered by Kingman, C. J.: On the 10th of April 1872 the governor, having received the requisite papers preparatory to the organization of the county of Harvey, appointed commissioners and county clerk for that purpose, as the statute requires. On the 20th of May thei’eafter a special election was held, at which a full set of county officers was elected, and immediately thereafter qualified. At the general election in November 1872 all the county officers were elected, among which C. A. Tracy was elected sheriff. At the general elec tion in November 1873 the plaintiff was elected sheriff. But the defendants, the county commissioners and county clerk of said county, refused to canvass the votes therefor. The real question raised on these facts, and the only one necessary to decide is this, Was Tracy elected for a full term of two years? If he was, it would bé an idle thing to direct the canvass of the votes for the plaintiff. If he was not, then certainly the plaintiff is entitled to the office and to have the votes canvassed and the result declaimed, so that he may enter upon the discharge of his duties. The statutory provisions bearing upon this question are these: Chapter 24 of the General Statutes (page 249,) provides for the organization of new counties, and after directing how the county offcers shall be elected at a special election fixes their term of office, in §8, (page 251,) directing that they shall hold their respective offices until the next general election and until their successors shall be elected and qualified. Sec. 2, page 428, Gen. Stat., provides for the election of sheriff and certain other county officers at the general election in 1869 and at the general election in every second year thereafter. Sec. 57 of ch. 36 provides for filling vacancies in county offices as well as others by appointment until the next general election; section 58 fixes the time when the regular term of office begins, on the second Monday of January next after the election; section 59 regulates the term of officers appointed or elected to fill vacancies, and therein declares that they shall hold during the unexpired term for which they are elected and until their successors are elected and qualified. These are the material statutory provisions on the question, and from them we think it clear that it was the purpose of the legislature to fix a uniform time for the commencement of the regular term of officers, one class to be elected in the odd years and one class in the even years, and the term of each class to commence on the second Monday in January after their election, and wherever vacancies occurred then the person elected to fill the same was only elected for the unexpired term, so that all officers of any one class should, throughout the state, be elected at the same time, thus avoiding confusion and the necessity for a great multiplicity of laws. If the statutory provisions upon the subject were alone to be consulted, we should have no doubt that Tracy’s election as sheriff in November 1872 was only for an unexpired term, and that his successor would be elected at the general election in 1873. "We think this is the fair construction of the statutory provisions on the subject; and had the question rested on these provisions it is not likely that any litigation would have ever grown out of them. The constitutional provision on this subject, and not the statutes, has given rise to the difficulties in this case. Sec. 3 of art. 9 prescribes the term of county officers in these words: “All county officers shall hold their office for the term of two years, and until their successors shall be qualified.” It is contended that this section attaches to every county officer immediately upon the election or appointment of such officer. Taken in its hardest literal terms, and the clause seems to bear this construction, and would apply alike to all county officers, upon their accession to office, whether elected to fill a vacancy or for a full term, for it applies to all county officers, making no distinction between those appointed or elected to fill a vacancy, and those to fill a full term. Such a construction would be productive of great confusion, as in the course of time, from removals, resignations, death, and other causes, it would come to pass that the commencement of the term of office would be different as to each office in a county, and in each county in the state. From other constitutional provisions it is apparent that but two elections are contemplated in a year, a township election, and a general election, so that to add to the confusion, it would happen that a great number of county officers would hold by appointment while others might be elected. It is the general policy of the constitution that the people elect the officers, and this policy is the one adopted by the legislature. But as to county officers, the constitution is silent. It prescribes the length of their term, but as to how they shall be selected, or when the term shall begin, there is no provision. The conduct of public business, under circumstances such as above suggested, would be so difficult as to be nearly impracticable. We cannot think the framers of the constitution intended any such result. Nor do we think it necessary to give such a construction to the clause. It was undoubtedly intended to fix the regular term of county officers at a uniform period of two years. The constitution furnishes general rules for the government of the state; it rarely comes down to details; and in this provision we understand the purpose to be to furnish a general rule fixing the duration of a regular term, and not provisions for a vacancy, or an exceptional case. We cannot give it the literal interpretation claimed by the defendants, without making it absurd from its impracticable workings. We must therefore give it a construction that is neither violent nor unreasonable. The provisions of the constitution as to some of the officers are explicit — that they are to be elected; that in case of vacancy it shall be filled by appointment; and the appointment runs only until the next general election that shall occur more than thirty days r after such vacancy shall have happened; (§14, art. 1; §11, art. 3;) while as to county officers the entire discretion is vested in the legislature as to how many there shall be, (with some possible exceptions,) how they shall be selected, when their terms shall begin, and what shall be their duties. The sole restriction is as to length of term. By giving this restrictive clause the fair construction of applying to the regular term of county offices, and not to vacancies or exceptional cases, we conform to the almost uniform practice of the counties of the state, to the construction placed upon it by the legislature in the statutes above referred to, and to the construction this court has heretofore given it in the case of Bond v. White, 8 Kas., 333. Does this case form one of the exceptional ones? We think so. The legislature is given the power to provide for the organization of new counties: this includes the right to prescribe the terms and conditions prerequisite thereto, and all the steps necessary to secure that result. Such regulations are prescribed, and among others it is provided that their organization may be effected at any time when the prescribed conditions exist; that the first commissioners and clerk are to be appointed by the governor; at the first election the county officers are only to hold until the next general election, when another election is to be held. If sec, 3 of art. 9 is to have any other construction than the one we have given it, then it applies with full force to the officers elected at the first election, and they must hold for a full term, and then each new county might and probably would have its political year beginning at a different period from that of any other county. It is not contended that the constitutional provisions applies to these, nor is it consistent with the position of defendants that they should so hold, for then the first officers, and not themselves, would be entitled to hold the offices. This is not said by way of estoppel on the defendants, but as a suggestion of the consequences of giving to the section the construction claimed, and applying it to the organization of new counties. We think that under the power to organize new counties the legislature had the power to designate how the offices shall be filled until the commencement of the regular term, and that the fact of its having provided for two elections, does not derogate from their power. And we think that there is no doubt that the legislature may determine when a regular term shall commence, and that they have so determined in the election law; that certain of the county officers are elected in the odd years and their terms commence in January of the even years, and that certain other county officers are elected in the even years, and their terms commence in January of the odd years. The term of all these offices is two years. The legislature cannot make them more nor less; but for vacancies, and for exceptional cases, such as the organization of new counties, we think they have the power to say how the office shall be filled up to the time when the regular term commences, even if it requires two elections in one year. With these views it follows that a peremptory writ must be awarded against the defendants, com- man ding them to canvass the votes for plaintiff for sheriff of Harvey county. Mandamus; plaintiff. While it is the duty of defendants to canvass the votes for the other officers mentioned in the alternative writ, we cannot command them so to do on the application of plaintiff. The application must be in the name of the proper public officer, or of the real party in interest) to authorize the court to act in the premises. As the defendant A. G. Richardson, one of the board of commissioners, by his answer has shown his willingness to canvass the vote at the time prescribed by law, and his attendance at the proper place and time for that , A _ _ _ „ _ purpose, and was only prevented by the refusal of the other commissioners, and has also shown by his attendance at the time and place commanded in the alternative writ for the canvass of the vote, and by his request to the other commissioners to canvass the vote then and there, the peremptory writ will go at the costs of the other defendants. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: This was an action of replevin brought by defendants in error in the district court of Bourbon county. The testimony is not in the record, and the case is before us on the pleadings, the findings, and judgment. The petition alleges an absolute ownership. The findings show that the goods were in the possession of Rucker as constable by virtue of proper and legal process against the firm of L. E. Conner & Co. Plaintiff’s title was based upon an attempted exercise of the right of stoppage in transitu. The findings are, that plaintiffs at St. Lo.uis sold the goods to Conner & Co., and shipped them to Fort Scott; that Conner & Co. were then insolvent, and that this insolvency was unknown to plaintiffs; that the goods never came into the possession of Conner & Co., but were taken by the constable from the carrier by virtue of his process; and that the constable paid the freight-charges, and also that plaintiffs demanded possession of the goods from the constable before suit, and while they were in his possession, but did not pay or tender the freight-charges. These are all the facts upon which the court based its conclusions of title and right of possession in the plaintiffs. The first finding shows a passage of the title from plaintiffs to Conner & Co.; and a .reinvestment in plaintiffs of title and right of possession is claimed only by virtue of an exercise of the right of stoppage in transitu. Now, the mere insolvency of the vendee does not of itself amount to a stoppage in transitu; there must be some act on the part of the vendor indicative of his intention to repossess himself of the goods. (1 Parsons on Contr., 478; 2 Kent, 543, and cases cited in notes.) Actual, seizure of the goods before they come into the hands of the vendee is not essential. A demand of the carrier, or notice to him to stop the goods, or a claim and endeavor to get the possession, is sufficient. No particular form of notice and demand 'is required. (See same authorities.) This right can be exercised only during the transit, and before delivery, actual or constructive, to the vendee. But a seizure by an officer under legal process in favor of some other creditor does not destroy the right. (Smith v. Goss, 1 Camp., N.P., 282; Buckley v. Furniss, 15 Wend., 135; Agmire v. Parmelee, 22 Conn., 473; Wood v. Yeatman, 15 B. Mon., 270.) Demand must be made of the party in possession. It is not sufficient to make demand of the vendee. (Whitehead v. Anderson, 9 M. & Welsby, 519; Mottram v. Heyer, 5 Denio, 629.) Applying these rules to the facts of this case and it appears that the transit had not ended; the goods were in possession of an officer holding legal process in favor of another creditor; demand was made of the-party in actual possession. It would seem therefore that the right of stoppage in transitu was not gone, and that the plaintiffs took the necessary steps to assert that right. But it is insisted by counsel that this stoppage in transitu is simply the exercise of a lien by the seller, and not a rescission of the sale; that the petition alleges absolute ownership while the findings only show the existence of a lien, a variance that is fatal to the action. It must be conceded that the great weight of authority supports the claim of counsel in reference to the nature of stoppage in transitu, though there is far from absolute unanimity on the question. But it does not appear that any objection was made to proof of this kind of interest in the property under the general allegation of ownership; no motion for a new trial was made, nor does it appear that the attention of the district court was called to this variance, and it is one of those discrepancies which under almost any circumstances might properly be corrected at the trial by an amendment of the petition. As it does not appear by exception or otherwise that the findings are against the evidence, we could not order a new trial, but must direct the judgment that ought to be entered. It does not seem to us therefore, that we ought to disturb the judgment upon that ground. One question more remains for consideration. The constable paid the freight charges when he took possession of the goods from the carrier. These charges were neither paid nor tendered to him before this suit was commenced. Who then had the right of possession at that time? Clearly the officer. The lien for charges was prior to the claims of creditors, or the rights of the vendor. (2 Kent, 541; Oppenheim v. Russell, 3 Bos. & Pul., 42.) The carrier’s possession could not be disturbed until they were paid. The officer was justified in paying them, and. having paid them was substituted to all the rights of the carrier. Before his possession then could be disturbed he must' be reimbursed the money by him thus advanced. Now, the gist of the action of replevin is the right of possession. (Town of LeRoy v. McConnell, 8 Kas., 273.) Of course, questions of title may also arise, but the action can never be maintained against anyone having the right of possession. The constable having the right of possession was entitled to judgment. He should not be subject to the expenses of a litigation which was not rightfully commenced. The law will protect the possession in him until these charges are paid. Having retained the property, the value of this possession need not and could not properly be determined, nor could any judgment be rendered for the return of the property, or the recovery of the value thereof, or the value of the possession. All that could properly be done was to render a judgment in his favor for costs. Such a judgment, upon this ground alone, we are compelled to direct the district court to enter, and the case will be remanded for that purpose. We have in this opinion discussed questions other than the one necessary to be considered,' in order that there might be no dispute hereafter as to the matters decided and disposed of between these parties by this case. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This was an action to quiet title to certain real estate. Both parties by their pleadings claimed to own the property, and to have the right of possession thereto. A trial was commenced in the court below before the court and a jury. The plaintiff below (who is also plaintiff in error,) introduced parol evidence showing that he was in quiet and peaceable possession of the property. He also introduced in evidence a quitclaim deed to himself for the land, executed August 3d, 1867, by one Gesso Chouteau, a half-breed Osage Indian. He also introduced in evidence a patent for the land issued June 10th, 1870, by the government of the United States to said Chouteau. This patent was issued under the provisions of article 14 of the treaty with the Osage Indians of September 29th, 1865, (14 U. S. Stat. at Large, 689.) When all this evidence was introduced the plaintiff rested his case. The defendant then demurred to the evidence, and the court below sustained the demurrer, and rendered judgment for the defendant. And of this ruling the plaintiff now complains. We are inclined to think that the court below erred — that the case should not have been taken from the jury. A party in the quiet, peaceable and rightful possession of real estate, claiming title thereto, has such an interest therein, although his title may be ever so defective, that he may quiet his title and possession as against any adverse claimant whose title is weaker than his, or who has no title at all. (Gen. Stat., 747; Code, § 594.) Now according to the evidence, if the plaintiff did not own this property, then Chouteau owned it. There was not a particle of evidence tending to prove that any one else owned it. There was no evidence tending to show that the defendant had the least interest in the property. Hence it would have been proper for the jury to have found that the plaintiff held the property peaceably, quietly, and rightfully, under Chouteau, although possibly the legal title may still be in Chouteau. If Chouteau was satisfied to allow the plaintiff to hold possession of the property, and to claim title thereto under said quitclaim deed, no one else could complain. Except as against Chouteau, or some other person rightfully claiming under him, the plaintiff’s title was and is sufficient. It will stand against the balance of the world. This case differs widely from the case of Wood v. The M. K. & T. Rly. Co., 11 Kas., 323. In that case the plaintiff was merely a trespasser upon government land. In this the plaintiff is neither a trespasser, so far as the evidence shows, nor is he located upon government land. The judgment of the court below must be reversed, and cause remanded for further proceedings. All the Justices concurring.	[ -16, 126, -124, 29, -88, 96, 40, -104, 64, -95, -26, 83, 105, -53, 16, 33, -14, 47, -47, 122, -58, -77, 7, 3, -46, -45, -37, 77, 49, -20, -28, -42, 76, 48, 74, -43, -26, 96, -43, 84, -122, -122, -120, 76, -61, 96, 48, 91, 80, 74, 97, -102, -29, 46, 25, -53, 105, 46, 107, -67, 48, -8, -82, 5, -33, 16, 49, 22, -104, 1, 104, 8, -104, 61, 4, -4, 123, 54, -122, 84, 13, -117, 40, -26, 107, 33, 93, -17, -96, -104, 47, -34, 5, 36, -44, 72, 2, 105, -74, -103, 60, 80, -121, 114, -25, -99, 93, -24, 47, -50, -106, -77, 31, 58, -112, 1, -37, -125, -96, 96, -49, -30, 92, 65, 57, -101, -113, -42 ]
The opinion of the court was delivered by Valentine, J.: This was an action founded upon a supposed judgment claimed to have been rendered by the circuit court of Barbour county, Alabama. The defendant in error (defendant below,) denies the validity of said judgment. The court below held it to be void; and the only question now presented to us is, whether it is void or not. The only ground upon which it is claimed to be void is as follows: It is claimed that the judgment was not rendered by the regular judge of the circuit court of said county, nor by any other person authorized to render judgment in that court. The journal entry of said judgment reads as follows: {Title.) “Judgment, May 22d, 1867. . “The presiding judge being incompetent to try this cause, and the parties failing to agree upon any one to preside in his place, John Gill Shorter was selected by the clerk to try the cause: And thereupon came the plaintiff by attorney, and the defendants being called came not, but made default. It is therefore considered by the court that the plaintiff recover of the defendants the sum of $1,910 for his damages, and also the costs in this behalf expended, for which let execution issue.” Section 758 (640) of the Revised Code of Alabama reads as follows: “When any judge of the circuit court is incompetent to try any case standing for trial, by reason of relationship to parties, or of having been engaged as counsel in the cause, or for any other reason, the parties to the suit must, when the same is reached for trial, nominate some attorney present in the court who must preside as judge for the trial of such cause during that term; and if the parties fail promptly to make such selection, the clerk of the court must nominate the attorney who shall preside over and try the cause at that term.” It was admitted in the court below that said section was in full force and operation in Alabama at the time of the rendering of said judgment, and since, hitherto. It is claimed that said judgment is void for- the following reasons: First, the record thereof shows upon its face that the judgment was not rendered by the regular judge of said circuit court; second, it fails to show any specific disqualification on the part of said regular judge; third, and it fails to show that John Gill Shorter was an attorney present in court. Now said § 758 (640) of the Alabama Code is a sufficient answer to the first objection, for under that section it was not necessary that the regular judge should try said cause; hence we need to consider only the second and third objections, and we shall consider both of these together. The circuit court of Alabama is a court of record with general original jurisdiction. This is shown by § 5, article 6 of the constitution of Alabama, (read in evidence in the court below,) by the record of the proceedings of the said circuit court, and by the certificates of the clerk and judge of said court who authenticated said record. The said circuit court had jurisdiction as a circuit court of the subject-matter of the action in which said judgment was rendered, It had jurisdiction of both of the defendants in that action by personal service of the summons upon each of them; and the whole of the record of all the proceedings in that action was introduced in evidence in the court below in this action. Hence all presumptions from silence or absence on the part of the record of said judgment should be construed in favor of the regularity and validity of the proceedings of the said circuit court, and not against them. (Galpin v. Page, 18 Wallace, 350.) It is a rule of universal application, that whenever a record of a court of general or superior jurisdiction is merely silent upon any particular matter, it will be presumed, notwithstanding the silence, that whatever ought to have been done was not only done but that it was rightly done. (Hahn v. Kelly, 34 Cal., 392.) This is the universal doctrine of the courts. Hence we think it ought to be presumed in accordance with the express declaration of the record of said judgment that the presiding judge of said court was incompetent to try said cause, although the record does not disclose the facts which rendered him incompetent; and we think it ought to be presumed that John Gill Shorter was an attorney present in court, although the record does not show that he was an attorney. The Alabama decisions referred to by defendant in error as applicable to this point have really no application whatever. They amount simply to this: whenever some special matter not coming within the ordinary jurisdiction of the circuit court, but belonging of right to some other court possessing only special and limited jurisdiction, is conferred upon the circuit court, to be by it heard and determined because of some disqualification on the part of the judge of the court of special and limited jurisdiction, the circuit court will for such special matter become merely a court of special and limited jurisdiction, just like the court to which such special matter rightfully belongs; and therefore every fact necessary to give such circuit court jurisdiction of such special matter must affirmatively appear upon the face of the record of the proceedings of such circuit court, just as it should appear upon the face of the record, of the proceedings of such court of special and limited jurisdiction, or such proceedings will be held to be void for the want of jurisdiction. That is,, the record of the court of general and superior jurisdiction must for this special matter be just as full with regard to> jurisdictional facts as the record of the court of special and limited jurisdiction. The record of the two courts for the special matter must be alike. In the present case however the subject-matter of the action in which said judgment was rendered does not belong to any court of special and limited jurisdiction. No court of special and limited jurisdiction could adjudicate upon it. But it belongs rightfully to the circuit court, and to no other court. The authority to hear and determine the subject-matter of said action is not a special authority conferred upon the circuit court, but it comes within its general and ordinary jurisdiction. It is not determined by some special statutory mode of procedure established for some court of special and limited jurisdiction; but i't is determined by the ordinary mode of procedure established for the circuit court. The case is tried just as any other case is tried in the circuit court, except that it is tried before a special judge, or judge pro tem. The record is made up in the same manner;, the proceedings are under the control and within the custody of the same officers, an'd the record of the proceedings are authenticated in the same manner. The court, although temporarily presided over by a special or pro tem. judge, is still. essentially the circuit court. It is not a court exercising merely a special and limited jurisdiction, but it is a court in the exercise of a general and superior jurisdiction, although presided over temporarily by a special judge; and therefore all the proceedings of said court should be examined and construed in the same manner as the proceedings of the circuit court are usually examined and construed. If otherwise, however —if all presumptions from silence on the part of the record are to be construed against the regularity and validity of the proceedings of the circuit court in such cases, then all such presumptions are not only to be drawn against the record of a court of general and superior jurisdiction, but they are also to be drawn against the intelligence, the care, and diligence, or the good faith of the regular officers of that court. It must be presumed against the officers, the judge, the clerk, and the sheriff, that they allowed a usurper to intrude into the judge’s office, to take possession of all the paraphernalia of the court, and to preside over its deliberations. Such presumptions should not be allowed. On the contrary, we think all presumptions should be in favor of the regularity and validity of the proceedings, and in favor of the intelligence, diligence and good faith of all the officers. We would refer to the following authorities as applicable to this point: State v. Carroll, 38 Conn., 449; 12 Am. Law Reg., N.S., 105; Feaster v. Woodfill, 23 Ind., 493, 497; Starry v. Winning, 7 Ind., 311, 314. In the case of Horton v. Pool, (40 Ala., 629, 632,) Judge Byrd of the supreme court of Alabama in delivering the opinion-of the court says: “The record should have shown affirmatively that the -person chosen to preside on the trial of the cause in the court below was an attorney of the court. (Code, § 640.) But without determining whether the record so shows, we are satisfied that there is no error shown by the bill of exceptions of which the appellant can legally complain.” This is all there is said upon the subject in his decision. The supreme court of Alabama by this decision substantially says, that although the record may be silent as to whether a special judge trying the cause is an attorney or not, yet, that even where the record is attacked directly, on an appeal, no error in the record is affirmatively shown of which the party attacking the record can complain. What would the court have said if the record had been attacked collaterally, as in the case now before us? It is supposed that the court would have said that the judgment was void. The court in that case affirmed the judgment of the court below, although the record was silent as to whether the special judge trying the cause was an attorney or not. And whoever heard of an appellate court affirming a void' judgment ? Whoever heard of an appellate court making a void judgment valid by affirming the same? Even on appeal the appellate court will not examine to see whether the judge trying the cause was legally the judge, unless the question was raised in the trial court. (State v. Anone, 2 Mott & McCord, (S. C.) 27; Feaster v. Woodfill, 23 Ind., 493.) A fortiori, a court will not examine such a question when the judgment is attacked collaterally. But for the purposes of this case, suppose that the regular judge of the said circuit court of Alabama was entirely competent in every respect to try said cause, and suppose that John Gill Shorter was not an attorney present in court, then is the judgment void? Is it a nullity, when attacked collaterally, as in this case? We think not. The laws of Alabama, as admitted by the parties, provide for such an officer as a special judge pro tem. John Gill Shorter was regularly •selected and regularly installed as such officer for the trial of said cause. He took possession and control of the office for that purpose. He was duly recognized by all the officers of the court, the parties present in court, and others, as such officer. A record of his proceeding was regularly kept and preserved as in other cases, and such record was at the time it was made and still is recognized as a part of the records of said court. And the present judge and clerk of said court duly authenticate the very transcript of said record which was offered in evidence in this case, which was held to be void by the court below. John Gill Shorter was in fact beyond all doubt a special judge de facto of said court. And as such judge- de facto we do not think his proceedings can be attacked in the collateral manner in which they are now attempted to be attacked. They must be held valid and binding until attacked by some direct proceeding instituted for the purpose of attacking them. This doctrine we think is universally recognized and maintained. State v. Carroll, 38 Conn., 449; State v. Carroll, 12 Am. Law Eeg., N.S., 105; Feaster v. Woodfill, 23 Ind., 493, 497; Case v. The State, 5 Ind., 1; Starry v. Winning, 7 Ind., 311, 314; Jones v. The State, 11 Ind., 357; Taylor v. Shrine, 3 Brevord, (S. C.) 516; State v. Anone, 2 Nott & McCord, (S. C.) 27; In re Boyle, 9 Wis., 264; State v. Bloom, 17 Wis., 521; State v. Douglas, 50 Mo., 593; People v. Bangs, 24 Ill., 184; Clark v. Commonwealth, 29 Penn. St., 129; Ex parte Strong, 21 Ohio St., 610; Pepin v. Lackenmeyer, 45 N. Y., 27, 32; People v. White, 24 Wend., 520; State v. Alling, 12 Ohio, 16. We have considered said § 758 (640) of the Alabama Code as valid and operative, because the parties to this suit agreed that it was, and nothing was introduced in evidence which tended to show that it was not valid and operative. It is in fact however unconstitutional and void, and the supreme court of Alabama has recently held it to be unconstitutional and void. {Ex parte James M. Amos, decided by the supreme court of Alabama July 30th, 1874.) We cannot take judicial notice of the constitution or laws or judicial decisions of Alabama, or of any other state. They must be proved by the introduction of evidence. (Gen. Stat., 700, § 370; Porter v. Wells, 6 Kas., 455; 1 Greenl. Ev., § 489; 2 Phil. Ev., (5 Am. ed., with Co wen & Hill’s and Edwards’ Notes,) original page 428, note 1.) It is true, for the purpose of construing our own laws, or of determining what our own laws are, we take judicial notice of everything that can in any manner aid us in such construction or determination, for we are bound to know what our own laws are without any proof thereof. And as we are bound to take judicial notice of what our own laws are, we are bound to take judicial notice of everything that will in any manner aid us in determining what our own laws are. For this purpose, and so .far as they are applicable, we may take judicial notice of the existence and history of the laws of every country and of every age. We may indeed take judicial notice of everything that can be known or understood of every law that has ever been passed, of every decision that has ever been promulgated, of every transaction that has ever occurred, of every event that has ever transpired, and of every fact that has ever existed. But except for the purpose of construing our own laws and of determining what they are, we can know but very little except through the medium of evidence. Except for that purpose we can know the laws of other states only as they are proved to us like other facts. Hence we cannot take judicial notice (against the agreement of the parties) that said § 758 (640) of the Alabama Code is unconstitutional and void. We have however examined the constitution of Alabama, and we agree with the supreme court of that state, that said § 758 (640) is unconstitutional and void so far as it attempts to authorize the selection of a special judge of the circuit court. The judgment of the court below must be reversed, and cause remanded for further proceedings. All the Justices concurring.	[ -74, 110, -4, -72, 42, 96, 0, -98, 66, -95, 113, -45, -81, -62, 0, 123, -26, 123, 117, 123, 95, -109, 7, 97, -13, -109, -37, 85, 53, 109, -28, -33, 12, 32, -22, -43, 71, -21, -123, 86, -62, 59, 41, 109, 25, 105, 52, 115, 68, 77, 101, -82, -29, 42, 28, 75, -24, 40, 89, -72, 88, -79, -98, -121, 77, 0, 49, 38, -102, 3, 122, 46, -112, 49, 1, -8, 122, -74, 2, -12, 9, -101, 41, 102, 99, 0, 45, -17, -72, -104, 23, 62, -99, -90, -110, 120, 75, 13, -74, -99, 124, 16, -122, 102, 103, -123, 93, 44, 9, -113, -74, -7, -113, 44, -110, -85, -61, -93, 16, 113, -51, -38, 85, 32, 57, -37, -50, -80 ]
Herd, J.: This is an appeal from a conviction for criminal damage to property. K.S.A. 1980 Supp. 21-3720. During the early morning hours of July 8, 1980, Detective Jack Leon was staking out a commercial area in Wichita. Shortly after 1:00 a.m. he observed a black and red Oldsmobile pull up to the teller’s window at the Fidelity Savings & Loan. A white male with blond curly hair and no shirt exited the car and broke a window in the building. Detective Leon reported this but told the dispatcher not to broadcast an alarm for fear the culprits had a radio scanner in the car and would be alerted to police activity. The Oldsmobile drove away, but then returned to the area twenty to thirty minutes later. Twenty to thirty minutes after the Oldsmobile left for the second time a blue Chevrolet Monza began driving in the area of Detective Leon’s stakeout. The Monza appeared to be circling the area. At this time Detective Leon broadcast a description of the vehicle to other officers stationed in the area over a radio channel not readily picked up by a scanner. Later the police decided the stakeout had been discovered because the persons in the blue Monza had seen a marked police unit. The vehicle was then stopped because Detective Leon “thought it was suspicious and involved in at least the vandalism if not a burglary.” It was now approximately 4:00 a.m. As the Monza was being stopped, the police officer observed the passenger in the front seat “bend down in the seat as if he was attempting to hide something.” The occupants immediately got out and the officer ordered them to stay near the car. Back-up police officers then arrived and were told to check the front seat of the Monza for weapons. During this search the officer noticed the front floor mat was “all bunched up like something was underneath it.” That “something” was a radio scanner. The appellant, Mark Croft, was driving the Monza. He was placed under arrest at the scene for having no driver’s license. Detective Leon later arrived and advised the officers Mark Croft was the person he had seen break the window at the Savings and Loan. The appellant was then charged with violating K.S.A. 1980 Supp. 21-3720, the criminal damage to property statute. A red and black Oldsmobile was later found parked across the street from appellant’s house. It was registered to Don Burrell, father of the passenger in the blue Monza. On September 19, 1980, a hearing was held on appellant’s motion to suppress the radio scanner. Judge Hodge denied the motion. Prior to trial, appellant filed a motion in limine. Pursuant to that motion Judge Klein ruled that evidence regarding drug paraphernalia found in a post-arrest search of the black and red Oldsmobile should be excluded. In response to a proper question at trial Detective Leon volunteered information about the paraphernalia. Appellant then moved for a mistrial and Judge Klein denied the motion. During trial the prosecutor referred to pictures of the Savings and Loan building introduced into evidence by appellant as being “altered.” There was no direct evidence the pictures were in fact altered. On October 2, 1980, the jury returned a verdict of guilty. The judge denied appellant’s motion for new trial and pronounced the sentence. Croft appealed. Appellant claims the radio scanner seized from his car should have been suppressed because it was the product of an unreasonable search and seizure. Generally, searches and seizures without a warrant are unreasonable. This rule is, however, “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967). See also Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 29 L.Ed.2d 564, 91 S.Ct. 2022, reh. denied 404 U.S. 874 (1971); State v. Sanders, 5 Kan. App. 2d 189, 195, 614 P.2d 998 (1980). One of these exceptions is for the search incident to a lawful arrest. Appellant concedes he was arrested for having no driver’s license in his possession. The critical question, he feels, is whether the search was sufficiently limited in scope to be justified. That question was recently answered by the U.S. Supreme Court in New York v. Belton, 453 U.S. __, __, 69 L.Ed.2d 768, 775, 101 S.Ct. 2860 (1981). There it was held “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” The appellant was lawfully arrested. The scanner was found in the passenger compartment. Under the Belton rule the search was proper. Appellant next contends a mistrial should have been declared because of the spontaneous remarks of Detective Leon regarding the drug paraphernalia. At trial the judge struck the entire answer containing these remarks and admonished the jury to disregard it. The general rule is that an admonition to the jury normally cures any prejudice from an improper admission of evidence. State v. McGhee, 226 Kan. 698, 702, 602 P.2d 1339 (1979); State v. Mims, 222 Kan. 335, 336-37, 564 P.2d 531 (1977). Further, whether to declare a mistrial is largely in the discretion of the judge. A clear showing of abuse of discretion must be made before the decision of the trial court will be set aside on appeal. State v. McGhee, 226 Kan. at 702. There was no such showing in the present case. Appellant argues remarks by the prosecutor during closing argument concerning pictures introduced by appellant constitute reversible error. Referring to the pictures the prosecutor said, “So you have the pictures. They’re altered pictures.” “No rule governing oral argument is more fundamental than that requiring counsel to confine their remarks to matters in evidence.” (Court’s emphasis.) State v. Bradford, 219 Kan. 336, 340, 548 P.2d 812 (1976). Although objection should be made to such improper argument, “[w]here counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop him then and there. The court need not and ought not to wait to hear objection from opposing counsel.” State v. Gutekunst, 24 Kan. 252, 254 (1880). See also State v. Kelley, 209 Kan. 699, 705, 498 P.2d 87 (1972); State v. Wilson, 188 Kan. 67, 73, 360 P.2d 1092 (1961). The prosecutor’s remarks here were outside the evidence and should not have been allowed. The question is, however, whether the remarks were so prejudicial as to deny defendant a fair trial. State v. Bradford, 219 Kan. at 340. In State v. Thompson, 221 Kan. 176, 183, 558 P.2d 93 (1976), the court stated the issue was “whether this court in its collective judgment can declare that these errors had little, if any, likelihood of having changed the result of the trial.” In State v. Dill, 3 Kan. App. 2d 67, 75-76, 589 P.2d 634 (1979), the court stated the factors to be weighed by this court in applying the test. “(1) Is the misconduct so gross and flagrant as to deny the accused a fair trial (i.e are the objectionable statements likely to affect the jurors to the defendant’s prejudice)? (2) Do the remarks show ill will on the prosecutor’s part? (3) Is the evidence against the defendant of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors?” Although the remarks by the prosecutor were clearly improper they showed no ill will on his part. The jurors might have made the inference the pictures were altered anyway. In this sense the remarks likely had little weight in the minds of the jurors. In short, the misconduct was not so gross and flagrant as to deny the accused a fair trial. Appellant’s final contention is that the evidence was insufficient to find the defendant guilty beyond a reasonable doubt. “In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. McGhee, 226 Kan. 698, 602 P.2d 1339 (1979); State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979). In considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence and if the essential elements of the charge are sustained by any competent evidence the conviction must stand. State v. Racey, 225 Kan. 404, Syl. ¶ 3, 590 P.2d 1064 (1979).” State v. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980). See also State v. Everson, 229 Kan. 540, 542, 626 P.2d 1189 (1981). We have carefully considered the evidence in favor of the verdict. Although not overwhelming, it is sufficient. We will not second-guess the jury’s belief or disbelief of any witness. The judgment of the trial court is affirmed.	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Foth, C.J.: Plaintiff is a school teacher. Defendant is a school district for which he worked as an untenured first year teacher during the school year 1976-77. In the final analysis, plaintiff’s petition claimed extra pay for the school year 1976-77 and total breach of an alleged teaching contract for the year 1977-78. This appeal is from an order dismissing the petition for lack of jurisdiction. With one important exception, the facts surrounding plaintiff’s relationship with the defendant district are undisputed. During the year he worked for the district he performed certain coaching duties for the Osage City High School. Neither the extra duties nor any extra compensation for them was included in his teaching contract. Attempts to negotiate with school administrators for extra compensation were fruitless. On March 14, 1977, the board voted not to renew plaintiff’s contract for the following year, and notified plaintiff in writing the next day. On April 11, 1977, plaintiff appeared before the board with his attorney and requested that the board (a) reverse its decision of March 14, to terminate him, (b) allow him thirty days in which to accept or reject a contract of employment and (c) pay him $294.00 for the coaching duties performed by him during the 1976-77 school year. Plaintiff’s attorney wrote a letter to the board dated April 18,1977, restating plaintiff’s request. On April 18, 1977, the board voted to accede to plaintiff’s requests, including payment of the $294.00 if “legally permissible.” This decision was communicated to plaintiff by letter. What happened next is controverted. Plaintiff claims that within the thirty-day period he met with the district’s superintendent and, among other things, told him that he would teach the following year. If this conversation occurred, it was apparently never communicated to the board. On July 11, 1977, at a regularly scheduled meeting the board voted that plaintiff did not have a contract with the district for 1977-78 because of his assumed failure to respond to the board’s offer of April 18. The board also voted not to pay the $294.00 on advice of its attorney that to do so would violate the terms of the district’s negotiated salary schedule. Plaintiff filed a notice of appeal with the board on August 15, 1977, and his first petition in the district court on August 23, 1977. Process was served on each member of the board and on the board as an entity. Thereafter plaintiff’s theories followed a somewhat tortuous path. At the outset he relied on the continuing contract law for his primary breach of contract claim. However, with permission of the court an amended petition was eventually filed which, insofar as we are presently concerned, asserted the two claims mentioned above: (1) $294.00 for the 1976-77 extra coaching duties; (2) $10,074 for lost salary for 1977-78. As to the latter item the amended petition, when liberally construed, simply asserts that the offer of employment was made on April 18, 1977, and was accepted by him within the 30 days specified and before the board’s action on July 11, 1977. Neither claim was decided on the merits; as previously stated the petition was dismissed on jurisdictional grounds. Lack of jurisdiction was premised on the trial court’s conclusion that plaintiff’s only avenue of judicial redress was by way of an appeal under K.S.A. (now 1980) Supp. 60-2101(d), the omnibus appeal provision of our code. Both his notice of appeal and his first petition in the district court were filed more than the statutory 30 days after the board’s decision. If the board’s action was quasi-judicial, as the trial court concluded, then the court was correct in its further conclusion that it lacked jurisdiction. If, on the other hand, the board’s action was executive or administrative in nature, the action was timely brought as an ordinary breach of contract action and the court erred in dismissing it. Much has been written recently about the distinction between quasi-judicial functions on the one hand and executive or administrative functions on the other. The tests need not be restated here. Cases finding the function in question to be quasi-judicial include Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1978) (determining after a formal hearing whether a teacher had resigned), and Schulze v. Board of Education, 221 Kan. 351, 559 P.2d 367 (1977) (determining after a formal hearing whether a teacher’s conduct violated rules of employment). Cases where the function was found to be executive or administrative include Linnens v. Board of Education of U.S.D. No. 408, 3 Kan. App. 2d 662, 600 P.2d 152, rev. denied 227 Kan. 927 (1979) (determining that a school should be closed) and Concannon v. Board of Linn County Comm’rs, 6 Kan. App. 2d 20, 626 P.2d 798 (1981) (denial of a county employee’s claim for wages). The presence of a formal hearing does not guarantee that the resulting decision is quasi-judicial — indeed, executive and legis lative determinations are often made only after affording interested persons an opportunity to be heard. The absence of a hearing, however, militates strongly against the conclusion that a quasi-judicial decision was reached. Three recent teacher contract cases serve to illustrate. In Brinson, the district had adopted a grievance procedure affording a full “due process” hearing to a terminated teacher before the enactment of K.S.A. 72-5436 et seq., which now guarantees such a hearing to tenured teachers. The court held the board’s conclusion to be a quasi-judicial decision, reviewable by appeal under what is now K.S.A. 1980 Supp. 60-2101(d). In Gillett v. U.S.D. No. 276, 227 Kan. 71, 605 P.2d 105 (1980), the tenured teacher’s nonrenewal was governed by the new “due process” act of 1974 requiring a formal hearing. Again, an appeal was available under 60-2101 because, among other things, section 72-5443 specifically so provides. On the other hand, in Boatright v. Board of Trustees of Butler County Junior College, 225 Kan. 327, 590 P.2d 1032 (1979), the tenured teacher whose contract was not renewed had no opportunity for a hearing either by rule of the governing board or by statute. In holding that he was entitled to maintain an independent action for breach of contract the court observed: “It should be noted that at the time the dispute in this case arose, the due process procedure provided for in K.S.A. 1974 Supp. 72-5436 et seq., was not applicable to community junior college teachers. They were brought under the act in 1975. The due process procedure, established by these statutes, provides for a hearing before an impartial hearing committee composed of appointees of the board and the teacher in the event of a dispute over a contract termination. There was no provision for an impartial hearing to be afforded the plaintiff at the time this dispute arose. “The grievance procedure in the negotiated contract did not provide for an evidentiary hearing before any impartial hearing body. The only procedure provided was for continuing negotiations which, it was hoped, would resolve the dispute. In the present case, plaintiff Boatright followed carefully the prescribed grievance procedure, which did not include an impartial administrative hearing as contemplated by Brinson. When the grievance of the teacher, Boatright, could not be resolved, he properly filed his action in the district court to recover damages for breach of his employment contract. In determining the action, the district court was required to hear the case de novo, weigh the evidence presented at the trial, and make its own independent findings of fact and conclusions of law. When plaintiff Boatright appeared in district court, this was the first opportunity he had been afforded to call witnesses and to present evidence in support of his position. ” 225 Kan. 331-32. (Emphasis added.) It then becomes necessary to consider this plaintiff’s status and rights at the time the board made its various decisions in the spring of 1977. First, there was the decision not to renew, communicated on March 15, 1977. That decision met the deadline then provided by the continuing contract law, K.S.A. 72-5411. Plaintiff was not tenured, and was not entitled to the “due process” hearing required by K.S.A. 72-5436 et seq., for tenured teachers; at that point he had no contract for the following year nor any right to a contract. Then, on April 18, the board offered to rehire him for the next year and gave him thirty days to accept. As we see it, his position at that time was the same as that of any other prospective teacher to whom the board might have made a similar offer. He could accept or reject at any time within the thirty days; at the same time the board could have withdrawn the offer at any time before acceptance without incurring liability. Had it done so, such a teacher would have had no right to a hearing nor any cause of action for breach of contract. Whether plaintiff accepted or not is still an unresolved factual question. Finally, on July 11, the board concluded that plaintiff had not accepted the offer and proceeded about its other business. No notice of any hearing was given to plaintiff, no “grounds” for non-renewal were specified, no evidence was received, no hearing was held. As we see it, none was required — at least under the board’s view of what it was doing. It was not terminating a teacher’s contract; it was simply reassuring itself that it had not hired one. We simply cannot fit this kind of determination into the mold of a quasi-judicial determination recognized in the cases cited above. Of course, if the board was mistaken and its offer had in fact been accepted, then its decision amounted to a refusal to honor its contract. If that is so, it may be liable in damages for breach, just like any other governmental entity. Again, however, the decision to breach (if that is what it was) was an executive, not a quasi-judicial decision. As to the $294.00 claim for extra salary for extra duty, the board’s disallowance of that claim is just like any public body’s disallowance of a claim. City and county governing bodies disallow both tort and contract claims at almost every meeting. As the Supreme Court said as long ago as Comm’rs of Leavenworth Co. v. D. J. Brewer, 9 Kan. 307, 319 (1872): “A claim presented to the county commissioners is simply a claim presented to the county, and a refusal by them to pay it is simply a refusal of the county to pay it. And where a county refuses to pay a claim against it there seems to be no good reason why it may not be sued as well as any other corporation, or as any individual, under like circumstances. It is true, that the county commissioners in some cases act in a kind of quasi judicial character, and when they do so act their determinations are final unless appealed from. But when they allow or disallow a claim against their county — against their principal — they do not act in a judicial capacity. They are not then a court, acting impartially between two contending parties, but they are simply the agents of one of the parties, and acting for such party. ” (Emphasis added.) Thus, a governing body’s action may set the stage for potential lawsuits, but it has never been thought that a disappointed claimant could only appeal from the adverse decision. The judgment must be reversed and the case remanded for determination of plaintiff’s two breach of contract claims. Reversed and remanded. . Additional claims, including one for slander, were asserted at one stage of the proceeding below but were separately dismissed. On oral argument before us, those claims were formally abandoned.	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