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The opinion of the court was delivered by Kingman, C. J.: The court below made an order temporarily restraining the trustees holding a contract between the plaintiffs in error and defendant in error from collecting the same, and the treasurer Tracy from making any payment on the same. The order also restrained the trustees from letting certain bonds of the city of Troy pass out of their hands. This order is brought to this court for review. It appears that the city of Troy subscribed $50,000 in stock to the Atchison & Nebraska railroad, and agreed to issue its bonds for the same amount in payment therefor. The bonds were to run thirty years, and to bear six-per-cent, interest, payable annually. Subsequently, on the 21st day of October 1870, the city of Troy issued bonds to the amount of $25,000, and placed them in the hands of trustees to be holden as security for a contract that day made between the city and the railway company, which stipulates among many other things, that if the city will pay $6,000 in certain defined payments, with ten-per-cent, interest thereon, then the bonds issued shall be delivered up by the trustees, and the bonds not issued shall not be required from the city. This contract had been assigned to James E. Joy before this litigation 'commenced. The motion was heard upon the petition and answers, which were verified, and upon affidavits. The only papers used by the plaintiffs were the petition and affidavit of Leon D. Noyes, city clerk of Troy. The petition averred that the city never authorized Tracy to make the subscription to the stock of the railway company;' that the city had no power to make such a subscription and bind the city for its payment; that the city had no power to make such subscription without the matter being first submitted to a vote of the electors of the city, after 30 days’ notice had been given, and that no notice was given, and no legal election was held. The affidavit of Noyes was, that he was clerk of the city of Troy, and as such clerk was the custodian of the books, papers, and records of the city, and that he had examined the books of said city and found no entry showing that any ordinance No. 48 ever passed the city council of said city, nor could the affiant find among the files and records of said office any evidence showing that any notice was given or attempted to be given to vote upon the proposition of subscribing stock and issuing bonds to the Atchison & Nebraska Railroad Co. The affidavits read oq the hearing of the motion by the defendants (plaintiffs in error,) showed with a convincing preponderance, that the ordinance was passed authorizing a submission of the question of taking stock and issuing bonds to a vote of the people; that such question was submitted to a vote of the people after more than thirty days’ notice thereof had been given; that a large majority of the voters had voted in favor of the proposition; that Tracy was fully authorized to make the subscription, and that the location of the depot was made in such substantial conformity with the ordinance of the city as to give entire satisfaction to the mayor and council as they manifested by solemnly ratifying the same. These facts were made so clear that it is not deemed desirable to state the evidence of them in detail. Whatever may be made to appear on a final trial, we cannot say, and do not wish to forestall. But the affidavits made out a clear prima fade case of all the steps having been taken that were required to authorize the issue of the bonds, if the city had the power; and that question as we understand it, has been decided in this court in favor of the power. We do not feel inclined however on this hearing to decide this question finally, because if there was no power to issue the^ftffids, and no power in the city authorities to bind the city to their payment, then no temporary injunction is necessary, for payment can never be enforced, no matter into whose hands the bonds may pass. As litigation is commenced, it may be proper, if no power exists to create the indebtedness, to close further litigation by a final injunction. A simple point remains. The defendant in error claims that the city authorities had no power to make the agreement by which on the payment of $6,000 they were to be released from the payment of $25,000. Although no express power may.be found we are inclined to think the general power to manage the finances is sufficient to uphold such a transaction. It is not the creation of an indebtedness, but a change of it ,so advantageous that the surprise is that the defendant in error is willing to raise the question. Doubtless the owner of the agreement would be willing to have it held void, and consequently do.es not argue this point in his brief. We must hold that the temporary injunction was improvidently granted, and the casbfis remanded with instructions to vacate the •order. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: The decision of the case of Bobbett v. Dresher, (ante 9,) in Avhich the opinion has just been filed, disposes of this case. This is an application for a mandamus; and the only interest the plaintiffs sIioav is, that they are qualified voters and freeholders of Rock Creek toAvnship. The relief sought is, the passing by the county board of an order directing and causing an election to be held in such township on the question of issuing bond's. It comes plainly within the rule laid down in that case. This question was raised upon motion to dismiss sometime last fall, and argued before the Chief Justice and the writer of this opinion. The motion was overruled, but it was stated that the question would be reserved for fuller and further consideration by the whole court on the final submission of the case. Judgment will therefore be entered for the defendants. All the Justices concurring.	[ 114, 108, -39, -4, 10, 96, 50, -104, 121, -79, -95, 83, -83, -37, 4, 33, -69, 123, 85, 91, -44, -106, 119, -29, -76, -13, -109, -51, -77, 91, -10, -9, 72, 33, 10, -43, -58, -50, -59, 92, -114, -121, 11, -64, -45, 88, 48, 122, 114, 11, 21, -66, -29, 46, 25, -31, 41, 40, -55, 61, 81, -79, -68, -59, 93, 6, -127, 101, -104, -121, -8, 46, -104, 49, 13, -24, 115, -90, -122, -76, 41, -103, 12, 98, 99, 3, 36, -51, -24, -87, 4, 91, 29, -26, 83, 24, 98, 40, -74, -97, 125, 18, -121, -2, -29, 5, 21, 124, 4, -54, -10, -73, -113, 124, -102, 1, -21, 97, 112, 117, -51, 126, 92, 103, 50, 27, -98, -72 ]
The opinion of the court was delivered by Valentine, J.: This action was for medical services rendered by the plaintiff to two prisoners confined in the county jail of Pottawatomie county. The plaintiff (Roberts) filed his petition. The defendant (the county) demurred thereto, on the ground that the petition did not state facts sufficient to constitute a cause of action. The district court sustained the demurrer, and the plaintiff now complains in this court of such ruling. The petition was certainly not very profuse or prodigal in its statement of facts. It did not state whether the said prisoners were confined in the county jail in a civil or in a criminal action; it did not state that the medical services of the plaintiff were necessary; nor that the prisoners themselves were unable to pay for said services; nor that the plaintiff was employed by the county commissioners; nor that the compensation which the county commissioners allowed him (which was ten dollars) was not a reasonable or sufficient compensation, or a “moderate compensation” as mentioned in the statute. The plaintiff claims compensation for his services under §331 of the criminal code. Said section reads as follows: “Sec. 331. Whenever the tribunal transacting county business of any county in which the offender shall have committed any crime, for which he is imprisoned, may be satisfied of the necessity of so doing, they may make an allowance for ironing- the prisoner, and may allow a moderate compensation for medical services,’ fuel, bedding and menial attendance for any prisoner, which shall be paid out of the county treasury.” Now' for the purposes of this argument vre will suppose that said prisoners were confined in the county jail for a criminal offense; that they were sick, and needed medical aid; that they were poor, and unable to pay for such aid; and that the ten dollars paid to the plaintiff was not a sufficient compensation for the plaintiff's services, and still we think the plaintiff could not recover on said petition. One important defect still remains in the petition. It docs not show that the county commissioners, “the tribunal transacting county business,” (Comp. Laws, 409, §§ 3, 5, 15; Gen. Stat., 254, §§ 3, 5, 16,) ever authorized such services. It is true that under § 331 of the criminal code (above quoted,) the county commissioners “may allow a moderate compensation for medical services” rendered without authority from them, but they arc not bound to do so. If a physician chooses in such a case to volunteer his services without authority from the county board, even though he should be requested so to do by the sheriff of the county, as in this case, or by some other person, he must trust to the discretion and the liberality of the county board for compensation. A county is not bound to pay a physician for medical services rendered by him in attending on prisoners confined in the county jail unless such services were authorized by the county board. The judgment of the court below' is affirmed. All the Justices concurring.	[ -48, -18, -11, -68, 11, 97, 33, 8, 83, -93, 36, 115, 109, -60, 1, 123, -70, 119, 85, 121, 67, -73, 51, 99, -78, -14, -5, -43, -79, 75, -20, -12, 76, 48, -118, -43, 102, 64, -57, 80, -54, 7, -87, -63, 80, 2, 48, 46, 66, 11, 53, -114, -29, 42, 16, -61, -23, 44, 91, 59, -47, -71, -40, 29, 13, 6, -95, 38, -100, 39, -8, 40, -104, 49, 64, -24, 83, -106, -122, 116, 79, -71, 13, 102, 99, 33, 29, -49, -88, -95, 30, -98, -99, -90, -112, 88, 107, 13, -106, -99, 117, 20, -122, 126, -25, 4, 93, 108, 1, -114, -68, -109, -113, 44, -118, -13, -29, 3, -80, 113, -60, -14, 93, -57, 56, -37, -81, -102 ]
The opinion of the court was delivered by Brewer, J.: The petition filed by defendant in error alleged in substance that in July 1864 Mrs. Kelley and Mrs. Larimer, the parties hereto, were taken captive by the Sioux Indians; that both escaped, Mrs. Larimer in forty-eight hours, and Mrs. Kelley after five months; and afterward, and in December 1865, in Johnson county, Kansas, they entered into an agreement to prepare a statement of their experiences in captivity, and publish the same with the names of both appearing as the authors. The expenses of the publication were to be borne by Mrs. Larimer, and the profits equally divided; that in May 1869, when the manuscript was nearly completed, Mrs. Larimer secretly and fraudulently took possession thereof, carried it to Philadelphia, and there published it in her own name, and'as her own work, thereby depriving Mrs. Kelley of the credit and reputation of such authorship, and her share of the profits of such publication; that the other defendant, "William J. Larimer, conspired with Mrs. Larimer in thus defrauding plaintiff of her rights, and aided and abetted and counseled in the commission of such fraudulent acts. To this petition was filed an answer, setting up 4 five defenses: 1st, a general denial; 2d, a specific denial of any agreement or partnership, verified by the affidavit of Mrs. Larimer; 3d, an averment that at the time of the alleged agreement Mrs. L. was the wife of her co-defendant, and had no trade, business or property on her sole account, and had no earnings from any such trade or business, or the performance of any labor or services, and was incapable of making any. such contract, and was not authorized thereto by her husband; 4th, that plaintiff was at the same time a married woman, and incapable of such contract; 5th, that the alleged arrangement was not to, be performed within one year, and was not in writing, nor evidenced by any note or memorandum signed by defendants, or any person thereunto authorized. To these last three defenses a several demurrer on the ground of insufficiency was filed, and sustained by the court; and the rulings on this demurrer present the first question for our consideration. The third and fourth defenses are, that a feme covert cannot make a contract such as is set forth in the petition. That ■contract is one for labor. Each is to furnish her skill and knowledge, her time and labor, in the production of a book. The nature of'the contract is the same, whether the object sought is the production of a book, or the fencing of a farm. Each is a contract for labor and services. The married woman’s act of 1859, the law in force at the time of this contract, (Comp. LaAvs, p. 698, § 10,) authorizes any married Avoman to perform any labor or services on her sole and separate account, makes the earnings therefrom her sole and separate account, and declares that she may sue and be sued, as if sole, in regard to such labor, services, and earnings. If she can perform labor and services on her separate account, she can contract for them. If she performs them, she can recover for them. The coverture of the parties ■did not therefore aAroid their contract, and the demurrer to .the third and fourth defenses Avas properly sustained. The fifth defense presents a question under the statute of frauds. Sec. 5 of that act, (Comp. LaAvs, 569,) is thus: “Sec. 5. No action shall be brought, Avhereby to charge the defendant * * * upon any agreement that is not to be performed Avithin the space of one year froni the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged thereAvith, ■or some other person thereunto by him or her lawfully .authorized.” The pleader has in this fifth defense used the very language •of this section, and has thereby alleged that Avhich, if true, constitutes a perfect defense to an action for a breach of such an agreement. The laAAr declares that no action can be maintained on an agreement that is not to be performed Avithin one year, unless such agreement is evidenced by some writing. The pleader alleges that this .agreement AAras not and Avas not to be performed within a year, and that there AArere no writings. Does not that bring the ■case Avithin the statute? But it is said by counsel for defendant in error that this fifth defense is insufficient “because before the defendants below could set up the statute of frauds they must admit the contract, and then show that ft was voicj foy the provisions of 'the statute. A plea in avoidance cannot be interposed until a confession of the agreement has been made.” If counsel mean by this to claim that this defense must contain a formal admission of the making of the agreement set forth in the petition before alleging that it was void by the statute, we think they mistake the rules of code pleading. Whether the allegation, that the supposed agreement was void, is an implied admission that such an agreement was made, so as to avoid the necessity of proof, may or may not be correct. Whether correct or not, it does not determine the sufficiency of this defense. All that the defendant need state is his defense. The petition alleges an agreement. The defense is that such agreement was void. Is it not enough to allege, that the supposed agreement set forth in the petition was void, and , _TT . , _ . _ n _ , whyc We think it states the defense, and is therefore enough. If counsel mean to claim that it is insufficient because contradictory to the second and verified defense, and that contradictory defenses are not tolerated, this answer is complete: such objection cannot be raised by demurrer. The question on demurrer is, whether this defense be sufficient; not, whether it contradicts or is inconsistent with some other. We think therefore the court erred in overruling the demurrer to this fifth defense. It does not follow, even if the alleged agreement should turn' out to be void on this account, that the plaintiff would be remediless, or that the defendants could without liability appropriate the fruits of her labor. If they have taken her property they are responsible for all damages she may have sustained thereby. With reference to the scope of this clause of the statute, and the contracts included within it, see 2 Parsons on Contracts, 316, and notes. The pleading, process and journal entries are certified to by the clerk, and any errors apparent in these are therefore properly before us for examination; and the matters we have thus far considered arise on the pleadings.- The record,, which is very voluminous, embracing' some three hundred pages, contains also a case made. In this appears some of the testimony, all the instructions,- and a part of the special findings, and motions subsequent to the verdict. It is earnestly insisted that the case made must be complete in itself,, and include “so much of the proceedings and evidence, or' other matters in the action as may be necessary to present', the errors complained of,” and that from the testimony and’ instructions alone, without the pleadings, it is impossible to affirm error. As the examination already made compels us to order a reversal we shall not consider the question thus raised, nor the various errors claimed to exist in this case. ¥e shall content ourselves with laying down certain princL pies and deciding certain matters which may assist in the-subsequent trial of the case. And first, we consider the' petition sufficient. It presents facts which if true entitle the-plaintiff to relief. Before one is competent as- an expert .to1 testify as to the value of the manuscript alleged to have been-taken by defendants he must show that he is a publisher, or familiar with the publication of books, and the values of manuscripts like the one in question. The measure of damages for breach of the contract as shown in the petition would be one-half the value of the manuscript at the time it was-taken by defendants. There is no allegation of any delay in the preparation caused by the defendants. It is perhaps-unnecessary to proceed further in this direction. The judgment of the district court will be reversed, and-the case remanded for further proceedings. All the Justices concurring. —The case being remanded to the district court, and the' order of reversal entered, the plaintiff, Mrs. Kelley, on leave filed a reply to the fifth defense stated in the answer. The substance of this reply is stated in the opinion, infra. The defendants demurred to the reply. The case was heard on this demurrer at the March Term 1873 of the district court. The demurrer was overruled. A motion was also made by defendants to dissolve the attachment unless plaintiff should give an undertaking to support the same, on the ground that defendants had, since the issuance and service thereof, become residents of this state. The motion was overruled and denied, and from the orders overruling the demurrer and denying the motion to dissolve the attachment defendants Larimer and Larimer appeal, and bring the case here on error for review. The case was heard here, on this second appeal, at the July 'Term, 1873. L. W. Keplinger, for plaintiffs in error: 1. The court erred in overruling demurrer to the reply. Said reply shows defendants’ cause of action to be barred either by the statute of frauds or the statute of limitations. The reply alleges that the contract sued on was to be performed within one year, or it does not. If it does not, her ■cause of action is barred by the statute of frauds. If it does, her cause of action is barred by the statute of limitations. The reply is composed of two distinct parts, which are entirely different in nature and design. The first is an attempt to evade the statute of frauds, while the second is exclusively devoted to an attempt to extricate the cause of action from the statute of limitations. So far as the questions raised by the fifth defense stated in the answer are concerned, our law -divides all verbal contracts into two classes: first, those which .are to be performed within one year; second, all other verbal contracts. The contract sued on must belong to one or the ■other of these two classes. There is no third class. It was to be performed within one year, or it was not. There is no obscure middle ground for it to occupy, nor can it be on one .side the line for the purposes of the statute of frauds, and on the' other for the purposes of the statue of limitations. If the first part of the reply saves the contract from the statute of frauds, it is simply and solely because it is equivalent, in legal effect, to an allegation that the contract was to be performed within one year, for there is no other defense known to the law. If this reply be true, if the contract was “to be” performed within one year from December 1865, plaintiff’s right of action for any possible breach of the contract sued' on was barfed by the statute of limitations long before this action was instituted. After the year expired, defendants were liable at any time within the period prescribed by the statute of limitations for any breach of the contract which had occurred prior to the expiration of the year, but the instant the year expired defendants’ power to break the contract expired also. But the second part of the reply alleges a> modification of the original contract which continued it in force until May 1869. This is impossible. The slightest effort of the parties to prolong the life of the contract by extending the time necessarily proved fatal. The first part of the reply temporarily rescues the cause of action from the statute of frauds, but strands it upon the statute of limitations. The second part of the reply extricates cause of action from the statute of limitations only to leave it hopelessly shipwrecked upon the statute of frauds. The channel between the statutes is too narrow for her craft. 2. The court erred in overruling the motion for a discharge of the order of attachment: ist, Because the pleadings show no cause of action against the defendant; 2d, Because the grounds upon which the order was issued no longer exist. If the plaintiff persists in keeping defendants’ property tied up for years after they have ceased to be non-residents, it is within the authority of the court to discharge the order of attachment, or compel plaintiff to give security, even in the absence of express statutory authority. Otherwise nonresident defendants might suffer irreparable damage at the hands of malicious and unprincipled plaintiffs, without' the possibility of relief. A plaintiff might claim exorbitant damages, and attach every dollar’s-worth of a defendant’s property for the purpose of hampering him in his defense, and the forms of law and courts thus be made to subserve the ends of private animosity. W. A. Johnson, for defendant in error: 1. The contract sued on, and set forth in the petition was ■not, by its terms, “not to be” performed within the space of one year from the making thereof; that is, the contract did not in terms stipulate and provide specifically for its performance at a specified time more than a year beyond the day on which it was made. Not so providing, the contract is valid. Where no definite time is fixed between the parties in which a contract is to be performed, the law presumes that it is to be done in a reasonable time; and if the labor necessary to complete a contract can be performed in one year it is not void as against the statute of frauds. A contract is not void under the statute of frauds unless it is a contract by the terms of the agreement, not to be performed within one year. Gen. Stat., ch. 43, § 6; .3 Pars. Con't., 35. 2. But for the purpose of this suit we claim that it makes no difference whether the agreement is in derogation of the Statute of frauds or not. The plaintiff prepared the manuscript for her history as alleged, and the defendants tpok and appropriated the fruits of her labor, secretly and fraudulently, and without her knowledge or consent, and thereby greatly ■ damaged her. They sought to make a profit from the experience and suffering as well as of the labor of the plaintiff; and they are answerable to her in damages. 3 G. Greene, 228. 3. Plaintiffs in error claim that the reply shows the cause of action to be barred either by the statute of frauds or the .statute of limitations. The petition and the reply of the plaintiff below both show clearly that her cause of action •accrued to her in May 1869, within the period prescribed by the statute of limitations. 4. The second error alleged by plaintiffs in error is that the ••court erred in overruling their motion for a discharge of the order of attachment. There was no error. The attachment was rightly sued out, and rightly levied on defendants’ property. A change of domicile by a defendant cannot make that wrong which was right when done. The attachment having properly issued and there being sufficient cause for attachment no subsequent act of the defendant other than payment of the debt or giving the undertaking as required by law will relieve his property from that liability. The opinion of the court was delivered by Brewer, J.: The defendant in error, Fanny Kelley, filed her petition in the district court of Allen county on the 26th of October 1870 against Sarah L. Larimer and William J. Larimer, the plaintiffs in error. ' A judgment rendered in her favor was reversed by this court in October 1872; (ante, pp. 298, 303.) The ground of reversal was error in sustaining a demurrer to the fifth defense stated in the answer. It appears by the record in this case that thereafter a reply Ayas filed to this fifth defense, and a demurrer to that reply Avas overruled, and this ruling is one of the errors now complained of. The substance of the petition, and of said fifth defense, were fully stated in the opinion filed in the former case, and it will be unnecessary to repeat the statement here. It is enough to say, that the petition alleged the making of a contract in 1865 to mutually write and publish a book, and that in 1869 Mrs. Larimer carried off the manuscript then nearly completed, and published the book as her oAvn production, and for her individual profit. The fifth defense stated in the answer alleged that this contract Avas not to be, and Avas not, performed Avithin one year, and was in parol, and therefore void under the statute of frauds. The reply alleges that no definite time Avas fixed in said contract Avithin which the manuscript Avas to be prepared, but that the same was to be prepared as speedily as possible, and that it could have been completed within one year with ordinary attention and labor; that the parties prosecuted the same from time to time, and treated it as a continuing contract, until May 1869, and that each party continued said contract in force by mutual agreement until May 1869; that the contract as set forth in the petition had been by mutual consent and agreement kept alive and in full force until May 1869, and was then well known and understood by the parties to be the contract under which the book was to be published for their mutual benefit. Was-the demurrer to the reply properly overruled? We think it clearly was. In 2 Parsons on Cont., 316, the rule is thus stated: “If the executory promise ggpg^g 0f entire performance within, one year it is not within this clause of the statute. The decision of the question does not seem to depend entirely upon the understanding or intention of the parties. They may contemplate' as probable a much longer continuance of the-contract, or a suspension of it and a revival after a longer period; it may in itself be liable to such continuance and revival, and it may in this way be protracted so far that it is not in fact performed within a year; but if, when made, it Avas in reality capable of a full and bona fide performance Avithin the year, without the intervention of extraordinary circumstances, then it is to be considered as not within the statute.” The reply clearly brings the contract Avithin the rule thus laid dÓAvn. Nor does the reply present any departure from the petition, or allege a new or modified contract, within the scope of the authorities cited by plaintiff in error. The contract as disclosed in the petition Avas apparently valid. The petition did not allege when it Avas to be performed, nor did the contract appear at all incapable of easy performance within one year. Prima fade then it Avas good. The answer plead the statute in hcee verba. A general denial in the reply would probably have been sufficients Instead thereof the pleader alleges specifically that the contract Avas capable of performance Avithin one year, and by agreement Avas to be performed as speedily as possible. If true, this overthrows and is a complete reply to the defense set up in the ansAver. The ruling of the district court on the demurrer must be sustained. One other question is presented in the record. A motion was made to dissolve the attachment, or to require the plaintiff to give security. This motion Avas overruled. It is alleged that the court erred in this, 1st, because the pleadings show no cause of action against the defendant. This reao : s°n is disposed of by the decisions already made, jn £ormer e age of Larimer v. Kelley (ante, p. 303,) we decided that the petition was good, and we have now decided that the reply is sufficient. The second ground for discharging the attachment is, that the grounds upon which the order of attachment was issued no longer exist. The defendants were non-residents when the suit was commenced. An order of attachment under those circumstances properly issued without the giving of any undertaking. Code, Gen. Stat., pp. 664, 665, §§ 190, 192. They have since become residents, and upon that ground insist that the attachment ought now to be discharged, or at least an undertaking required. There is nothing in the statute authorizing any such action as was asked. There is nowhere any intimation that the defendants can by removing into the state after the commencement of a suit, affect the lien of an attachment rightfully issued and rightfully levied. We are referred to no authorities which sanction such practice, and it does not appear to us to be consonant with the spirit and purpose of the attachment law. The attachment does not divest the defendants of title to their property; it only enables the plaintiff to obtain security for an anticipated judgment. And when .that security has been once properly acquired, we suppose it will remain until the final disposition of the case, unless released raider some express provision of the statute. These being the only questions in the record the judgment will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Prager, J.: This is an action to recover damages for the wrongful death of Deraid L. Bourne. The suit was brought by Juanita L. Bourne, his widow, individually and as the mother and next friend of their two children, Robert Lee and Ginger Lee Bourne. Deraid L. Bourne was killed at a rural railroad crossing in Osage County, Kansas, on March 1, 1969, when the truck in which he was riding and a passenger train of the Atchison, Topeka and Santa Fe Railway Co. collided at the crossing. The record discloses that the action was filed on August 20, 1969. The case was set for trial on September 20, 1971, by a Notice of Assignment for Jury Trial issued by the clerk of the District Court of Osage County on August 10, 1971. Accompanying the notice was a special notice issued by the clerk directing counsels’ attention to Rule 4-7 of the Fourth Judicial District. This rule provided as follows: “4-7 Jury Number “In all misdemeanor and civil cases the jury shall consist of the number of six. The parties will be deemed to have stipulated thereto unless written motion requesting an order for a greater number of jurors shall have been filed and served for a hearing at least ten days before the date assigned for trial.” (Adopted July 21, 1971.) On August 23, 1971, the defendant railway company filed its Motion for Twelve Jurors. The motion was argued and overruled on September 2, 1971. The trial of this suit commenced on September 20, 1971, before a jury consisting of six members. Following the selection of the jury the railway company moved for a mistrial predicated on the lack of 12 jurors which motion was overruled. The railway company moved for a mistrial on the same grounds at the close of all of the evidence on September 21, 1971. This motion was likewise overruled. The six-member jury returned a sizeable verdict against the defendant. Following the rendition of the verdict and the entry of judgment thereon on September 22, 1971, the railway company filed a motion for a new trial alleging among other trial errors that it had been denied its statutory right to a trial by 12 jurors as provided by the laws of the state of Kansas. The defendant’s motion for a new trial was argued and overruled on October 13, 1971. A timely notice of appeal was filed to this court. In order to focus the attention of the court on this one issue of the denial of the right to a jury of 12 members, all other trial errors were abandoned by the appellant in this appeal. The basic question presented on this appeal is whether the district court by Rule 4-7, as interpreted and applied by the district court, may direct that a civil case be tried before a jury of six members when the parties !did not stipulate to a jury of six members and when one of the parties by motion specifically demanded a jury of 12 members. The case has been ably briefed and argued by counsel for both sides. The case presents an issue of first impression before this court — a question of great importance to the people of this state and one involving significant considerations of public policy and the administration of justice in Kansas. At the outset it should be emphasized that the parties have not raised any constitutional issues arising either under the Constitution of the United States or the Constitution of the State of Kansas. Both parties concede the power of the state legislature to make reasonable regulations as to the practice and procedure in civil cases involving jury trials, including the power to declare the number of members to constitute a jury in the trial of civil cases. This is true so long as the right to a jury trial is not seriously impaired. In this regard both parties cite and rely on the decision of the Suprme Court of the United States in Williams v. Florida, 399 U. S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893. Before considering the various contentions of the parties it would be helpful to look at some of the provisions of the Kansas law pertaining to the right of trial by jury. The right of trial by jury is provided for in the Constitution of the State of Kansas in Section 5 of the Bill of Rights which declares as follows: “§ 5. Trial by jury. “The right of trial by jury shall be inviolate.” K. S. A. 60-238 provides a statutory right to trial by jury as follows: “60-238. Jury trial of right. “(a) Right preserved. The right of trial by jury as declared by section 5 of the bill of rights in the Kansas constitution, and as given by a statute of the state shall be preserved to the parties inviolate.” Other sections of K. S. A. 60-238 permit a party to demand a trial by jury and provide that the failure to serve the demand for a jury constitutes a waiver of the right to trial by jury. K. S. A. 1971 Supp. 60-248 provides as follows: “60-248. Jury trial procedure. “(a) Stipulation as to number. The parties may stipulate that the jury shall consist of any number less than twelve (12) or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.” It should be noted that as of this time there is no provision in either the Kansas Constitution or the Kansas Statutes which declares specifically the number of persons to constitute a jury in civil cases tried in the district court. Since the beginning of statehood the legislature has from time to time enacted statutes declaring with particularity the number of persons necessary to constitute a jury in different types of cases in different courts in this state. In G. S. 1868, Chapter 54, Sections 9 and 21, reference is made to the drawing of 12 persons to serve as petit jurors. Prior to the enactment of K. S. A. 60-248 by the 1963 legislature, G. S. 1949, 60-2907, was in effect from 1909 to 1964 and provided that in civil cases after the jurors are passed for cause and preemptory challenges have been exercised the remaining 12 shall constitute the jury to try the cause. The justice court procedure in Kansas provided for trial by a jury of six in all civil actions in justice court unless the parties agreed on a lesser number. This was governed by G. S. 1949, 61-816, which was in effect from 1949 until 1969 when the Code of Civil Procedure before Courts of Limited Jurisdiction was enacted. The present statute governing civil procedure in courts of limited jurisdiction provides for a six-member jury and for agreements for a lesser number (K. S. A. 1971 Supp. 61-1716 [c].) Civil juries in county courts consisted o£ six members unless request was made in writing by either party for 12 jurors according to K. S. A. 20-812 until that statute was repealed and replaced by K. S. A. 1971 Supp. 61-1716. The legislature has specifically provided for the trial of felony cases in district court to a 12-member jury both in our old code of criminal procedure (K. S. A. 62-1412) and in our new code of criminal procedure (K. S. A. 1971 Supp. 22-3403.) Under K. S. A. 22-3403 ( 2) the parties may agree in writing at any time before the verdict, with the approval of the court, that the jury shall consist of any number less than 12. Under the new criminal code the trial of misdemeanor cases in the district court shall be in the same manner provided for the trial of felony cases, but a jury in a misdemeanor case tried in a state court other than the district court must consist of six members unless the defendant requests a jury of 12 or another number is agreed upon by the parties. (K. S. A. 1971 Supp. 22-3404.) All of these statutory provisions are cited to show that historically the legislature has customarily declared the number of persons to constitute a petit jury in our state courts. With these constitutional and statutory provisions in mind let us turn to the contentions of the parties. Counsel for the appellant contends in substance that the legislature has the power to establish the number of jurors by statute and that under the provisions of K. S. A. 1971 Supp. 60-248 (a), it is the legislative intent that litigants in civil cases in district court be entitled to a jury of at least 12 members unless there is an agreement or stipulation to the contrary. It is further contended that statutory provisions for the number of jurors are binding upon the courts. The rationale is that the right of trial by jury is a fundamental right having its origin in the mists of the past in the common law and which has traditionally been protected and regulated by constitutional and statutory provisions. Hence it is argued that the district court committed prejudicial error in compelling the appellant to go to trial before a six-member jury over its objection contrary to the provisions of a controlling statute. The appellees contend that Rule 4-7 of the Fourth Judicial District is not contrary to any statute of the state of Kansas nor is it contrary to Rule 119 or any other rule of this court. The argument is made that although the legislature has the power to regulate the number of jurors required in civil cases it does not have the exclusive power to do so. Appellant calls our attention to K. S. A. 60-2607 which declares that the Supreme Court shall have the power to amend the provisions of the Code of Civil Procedure and also to K. S. A. 60-267 which grants to the district courts of Kansas the power to make rules governing practice in particular judicial districts in any manner not inconsistent with the civil code and other rules prescribed by the Supreme Court. The thrust of the argument of appellees is that since neither the legislature nor the Supreme Court has specifically provided for the number of jurors in civil actions in district court, the district court may fill the vacuum by a specific rule in this area under the authority of K. S. A. 60-267. It is further urged that Rule 4-7 of the Fourth Judicial District regulates practice in that judicial district in a manner which is not inconsistent with the Kansas Code of Civil Procedure. Appellees emphasize the desirability of a six-member jury in civil cases because of the substantial financial savings it will effect, especially in view of the recent doubling of the per diem paid for jurors in this state from $5 to $10 per day. (K. S. A. 1971 Supp. 43- 171.) It is urged that a six-member jury will expedite the trial of civil jury cases in district court in addition to the substantial monetary savings in jury costs. We turn now to a resolution of the problem which is before us. We hold that Rule 4-7 of the Fourth Judicial District as interpreted and applied by the district court of Osage County is contrary to the provisions of K. S. A. 1971 Supp. 60-248 (a) and that therefore the district court erred in compelling the appellant to submit to a trial of a jury of six when appellant had expressly requested a jury of 12 members and had not stipulated to a jury of less than 12 members. The right of trial by jury is a substantial and valuable right and should never be lightly denied. The law favors trial by jury, and the right should be carefully guarded against infringements. (Gard v. Sherwood Construction Co., 194 Kan. 541, 400 P. 2d 995.) Our decisions have always recognized that the state has an interest in the subject of trial by jury as a matter of public policy. (State v. Ricks, 173 Kan. 660, 250 P. 2d 773.) The state has declared its policy on the subject not only by the decisions of its cotuts but also through acts of the legislature. We recognize and approve the current movement to improve procedures in the area of judicial administration so that the courts may serve the people more efficiently and less expensively. Nevertheless, the constitutional provision for trial by jury is not directed at trial efficiency, but to protect the individual from oppression. (Hasty v. Pierpont, 146 Kan. 517, 520, 72 P. 2d 69.) As we stated in the beginning the legislature may make any reasonable regulations as to the practice and procedure in civil cases involving jury trials as long as the right to a jury trial is not materially imparied. Pursuant to this power the legislature has by statute expressed the public policy of this state in this area. See for example K. S. A. 1971 Supp. 43-155 through 43-172 where the public policy of this state is declared to be that jury service is the solemn obligation of all qualified citizens and where the legislature established comprehensive rules governing the selection, qualifications and exclusion of prospective jurors and other procedures governing jury service. The parties in this case agree that the legislature has the power to regulate the number of jurors required in civil cases in district court. The problem presented is whether the legislature by statute has in fact prescribed any mandatory number of jurors in a civil case. We hold that the obvious intent of K. S. A. 1971 Supp. 60-248 (a) is simply that litigants in the district court are entitled to have their cases tried by a jury of not less than 12 members unless there is a stipulation by the parties to the contrary. To hold otherwise would make the language of K. S. A. 1971 Supp. 60-248 (a) meaningless. Why require a stipulation unless some valuable right is being waived or given up? A stipulation has been defined as an agreement, admission or concession made in judicial proceedings by the parties thereto or their attorneys. (Bodle v. Balch, 185 Kan. 711, 714, 347 P. 2d 378.) Stipulations are ordinarily entered into for the purpose of avoiding delay, trouble or expense. In the absence of withdrawal with consent of the court, stipulations made by parties or then- attorneys in a judicial proceeding are binding upon those who made them. If the legislature had not intended to require 12-member juries as a matter of statutory right, there would have been no reason to require a stipulation in order for a jury to consist of some number less than 12. Prior to Williams v. Florida, supra, we all assumed that trial by jury meant a trial by a jury of 12 members. Such a conclusion was based largely upon language used by the Supreme Court of the United States in Thompson v. Utah, 170 U. S. 343, 42 L. Ed. 1061, 18 S. Ct. 620. Both Thompson and Williams which overruled Thompson, were criminal cases where the right of trial by jury under the Sixth Amendment was involved. This court relied upon Thompson in State v. Simons, 61 Kan. 752, 60 Pac. 1052, where we held that the common law requires a jury of 12 for a trial of issues of facts in criminal cases in courts of record. We think it crystal clear that K. S. A. 1971 Supp. 60-248 (a) was enacted by the legislature with the purpose that all litigants in civil cases in district court be entitled to a jury of 12 members as a matter of right which could be denied only by agreement or stipulation of the parties. This view was also the prevailing view as applied to cases tried in the United States District Courts. (Wright and Miller, Federal Practice and Procedure: Civil §2491.) In the discussion in Wright and Miller the authors point out that in the months following the Williams decision a great many districts adopted local rules provide ing for a jury of fewer than 12 — usually six — in some or all civil cases. The Judicial Conference of the United States has endorsed the use of six-man juries in civil cases. The authors raise questions about the validity of the local rules, pointing out that local rules inconsistent with the Federal Rules of Civil Procedure are invalid and that Federal Civil Rule 48 allowing the parties to stipulate for a jury of fewer than 12 certainly presupposes that in the absence of a stipulation there will be 12 jurors. It is worthy of note that in 1971 the newly-reconstituted Advisory Committee on Civil Rules informed the Judicial Conference of the United States that it believed that any change in the size of the jury in federal civil actions should be made by legislation rather than by exercise of the rulemaking power. On March 6, 1972, the United States Court of Appeals for the Ninth Circuit upheld a local rule of procedure adopted by the United States District Court for the District of Montana which provided that a jury for the trial of civil cases shall consist of six persons. (Colgrove v. Battin, 456 F. 2d 1379.) In Colgrove the court held that the Seventh Amendment to the United States Constitution which applies to civil cases does not require a jury of 12 members and further that the local rule was not inconsistent with Rule 48 of the Federal Rules of Civil Procedure which is practically identical with K. S. A. 1971 Supp. 60-248 (a). This decision adds strength to the position of the appellees in the case at bar. Since the Williams case there has been much discussion throughout the United States in regard to the desirability of a six-man jury in civil cases. See for example in favor of the six-man jury the following: The memorandum of Chief Judge Arthur J. Stanley, Jr. in regard to the Local Court Rule Providing for Juries of Six Members in Civil Cases in the United States District Court for the District of Kansas dated March 19, 1971; Wiehl, The Six Man Jury, 4 Gonzaga L. Rev. 35, 38-39 (1968) at 40-41; Tamm, The Five-Man Civil Jury: A Proposed Constitutional Amendment, 51 Geo. L. J. 120, 128-130 (1962), at 134-136; Cronin, Six-Member Juries in District Courts, 2 Boston B. J. 27 (1958); Six-Member Juries Tried in Massachusetts District Court, 42 J. Am. Jud. Soc. 138 (1958); New Jersey Experiments with Six-Man Jury, 9 Bull, of the Section of Jud. Ad. of the ABA (May, 1966); Phillips, A Jury of Six in All Cases, 30 Conn. B. J. 354 (1956); Devitt, The Six Man Jury in the Federal Court, 53 FRD 273 (1971). Some of the articles which take a position opposed to a six-man jury are as follows: Zeisel, The Waning of the American Jury, 58 American Bar Association Journal 367; Justice Walter R. Hart, Long Live the American Jury, 1964; The United States Jury System: Pros and Com: The Question of Curtailing the Size and Use of Juries. Congressional Digest 193-225 (Aug.-Sept. 1971); Ziesel, And Then There Were None: The Diminution of the Federal Jury, 38 U. of Chi. L. Rev. 710 (1971); Defendant’s Right to a Jury Trial — Is Six Enough? 59 Ky. L. J. 997 (1970-1971). In arriving at our decision in this case we hold that the invalidity of Rule 4-7 lies not in the rule itself but in the manner in which it was interpreted and applied by the district court in the case at bar. We note that similar rules regulating the number of jurors in civil cases have been adopted by the 21st Judicial District and by the 11th Judicial District of the State of Kansas. There is nothing which prevents the district court from encouraging the use of a six-member jury in the trial of civil cases. We find nothing in the Kansas Code of Civil Procedure which precludes the district court from adopting a rule such as Rule 4-7 which declares that the parties will be deemed to have stipulated to a six-man jury unless written motion or notice requesting a greater number of jurors is filed within a certain time before the date the case is scheduled for jury trial. We consider this a matter of sound judicial administration. What we have proscribed in this decision is compelling a party in a civil case to try his case before a jury of less than 12 members in the absence of a stipulation to that effect. In this case the trial corut in interpreting and applying its local rule has compelled the appellant to submit to trial by a jury of six members over its objection. The appellant has been denied a substantial statutory right. This case is reversed and remanded to the trial court for a new trial before a jury of 12 members.	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The opinion of the court was delivered by Habman, C.: The single issue on appeal in this divorce action is the propriety of the amount awarded the wife as alimony. After thirteen years of wedded life the parties were divorced in September, 1969. The wife, then thirty-five years of age, was granted the divorce because of extreme cruelty and gross neglect of duty by the husband, then forty years of age. The wife received custody of two sons, one aged nine years and the other four months. By way of property division the wife was awarded the family home, the household goods and furnishings, and a 1968 Chevelle automobile. The house was valued between $16,000 and $17,000. It was subject to a mortgage of $11,317 which the wife was required to assume and pay. The husband was awarded his books, tools, a camera and a 1966 Chevelle. He was directed to pay debts of the parties approximating the sum of $4,400, which amount included an indebtedness owing on the automobile awarded the wife. He was also directed to maintain one-half the amount of his life insurance with his two sons named as beneficiaries. The husband was ordered to pay child support in the amount of $75.00 per month per child for a period of one year, such amount to be increased $15.00 per month per child for each of the three years following the one year period, and to pay the wife alimony in the sum of $150.00 per month until her remarriage, death or until further order of the court. Upon appeal the husband asserts that in the light of the property division the alimony award was excessive. The record reveals that the wife, a high school graduate, had been employed as a secretary prior to the marriage and as a result had accumulated $2,000 and an automobile, which she brought into the marriage. The husband, who had just left the naval service, commenced civilian employment and at the same time began attending college. Eventually he obtained a bachelor’s and a master’s degree in physics and had done work toward a doctorate. During the first three years of marriage the wife continued to work and saved about $4,000 while the husband supported the family from his earnings. Of the wife’s savings $3,000 eventually went into family expenses; the remaining amount was put in a savings account but it was pledged for a loan to the parties and appears not to be the basis of any contention by the husband. At the time of the divorce hearing the husband was employed at Kansas State University but had resigned his position for the coming year. He had done some part time work outside his regular employment. His 1968 income tax return reflected income of about $10,800. He testified he expected thereafter to have an annual income from earnings of about $12,000. The wife testified he owned some land of fund at the university, amounting to about $1,600, nature not shown. As indicated, there is no complaint concerning the property division. The complaint is that, in the light of it, the alimony award is not fair, just and equitable as required by K. S. A. 1971 Supp. 60-1610 (c). We cannot sustain the contention. Rules applicable to alimony have been stated many times and need not be repeated (see Cool v. Cool, 203 Kan. 749, 457 P. 2d 60). It is apparent from the colloquy revealed by the record the trial court was greatly concerned with making adequate provision for the children of the parties and that it gave careful consideration to all the orders made. The husband’s principal argument is he cannot on his anticipated income pay the indebtedness of the parties, support money for the children and maintenance for himself and at the same time pay the alimony ordered by the court. This contention is largely bottomed on a substantial monthy payment schedule proposed by him of so much per month to be paid on each item of indebtedness in addition to his other required expenditures. The proposal calls for payments large enough to liquidate the indebtedness in a comparatively short time. The indebtedness appears to consist of at least fifteen separate accounts, mostly unsecured, and is not of a nature where the kind of payments postulated by the husband are normally expected or required. . Everything considered, we are unable to declare an abuse of judicial discretion in the alimony award and that judgment is affirmed. APPROVED BY THE COURT.	[ -16, 124, -112, 127, 10, -94, 10, 89, 120, -115, -89, -41, -5, -45, 20, 105, -80, 11, 64, 106, -105, -77, 23, -63, 114, -77, -71, -35, -79, 93, -12, 87, 76, 48, -126, -43, 102, -118, -59, 84, 78, -122, -69, 109, -39, 66, 52, 107, -48, 13, 17, -113, 115, 45, 61, 126, 108, 46, 91, 57, -64, -24, -118, 12, 111, 18, -111, 4, -100, 36, 88, 14, -100, 57, 0, -31, 58, -74, -122, 52, 105, -101, 9, 32, 114, 16, 69, -3, -16, -120, 14, 120, 15, -122, 18, 80, 10, 97, -66, 28, 108, 20, 39, -2, 122, 93, 77, 101, 26, -97, -106, -111, -115, 112, -100, -120, -25, -29, 1, 113, -49, -94, 92, 100, 123, -77, -122, -78 ]
Per Curiam: This appeal consolidates four separate in rem actions seeking to foreclose oil and gas liens for labor and materials used in drilling test wells in Ellis County. The trial court entered judgment foreclosing the liens and the leasehold owners have appealed. The parties will be referred to herein as plaintiffs and defendants. The owners of the various leaseholds present three questions on appeal. However, we deem it necessary to reach only the first point raised, which relates to the question of service. The issue is present in all four cases. The parties agree that the lien claimants are subcontractors and that notice of their liens must be given in accordance with K. S. A. 60-1103 (a), as amended. (See K. S. A. 1969 Supp. 60-1103 a.) They further agree that notice was given in each case by mailing a copy of the lien statement by certified mail, return receipt re quested. The defendants contend that notice given in this manner is insufficient under 60-1103 (a) and herein lies the first dispute. K. S. A. 1969 Supp. 60-1103 (a) (which has since been amended) provides, so far as material to this lawsuit, as follows: “. . . The claimant shall either cause a copy of the lien statement to be served personally upon the owner and any party obligated to pay the same in the manner provided for the service of summons ... or shall mail a copy of the hen statement to the owner of the property and to any party obligated to pay the same by restricted registered or certified mail, or if the address of the owner or such party obligated to pay the same is unknown, and cannot with reasonable diligence be ascertained, a copy of the hen statement shall be posted in a conspicuous place on the premises.” (Emphasis added.) The heart of the defendants’ argument is that service by unrestricted certified mail does not comply with the command of the statute; that whenever notice is given by mail, either registered or certified, the mail must be restricted. The plaintiffs’ response is that the requirement of restricted mail applies only when the notice is sent by mail which is registered, and not by mail which is certified. We find restricted mail defined in K. S. A. (now K. S. A. 1971 Supp.) 60-103, the statute having been amended in 1970 as to a matter not here material. The statute reads as follows: “The term restricted mail’ as used in this chapter means mail which carries on the face thereof in a conspicuous place, where it will not be obliterated, the endorsement ‘deliver to addressee only’ and which also requires a return receipt or a statement by the postal authorities that the addressee refused to receive and receipt for such mail.” The court is persuaded by the logic of defendants’ position. It is our view that in the phrase “restricted registered or certified mail” the adjective restricted applies to mail which is either registered or certified; that it modifies both registered and certified mail. Any other construction appeals to us as illogical. No reason is suggested for requiring restricted delivery in the case of registered mail but not requiring restricted delivery in case of certified mail. We are fortified in our view by Judge Gard’s comments found in Gard, Kansas Code of Civil Procedure, § 60-103, p. 3: “The definition of ‘restricted mail’ is necessary because of the several places in Chapter 60 where the term is used in connection with process or the giving of other notice. The phrase finds a common ground of definition whether registered or certified mail is used. Both are adaptable to the definition by the postal regulations. The important thing is the requirement of restricted delivery, thus substituting for reliance on the presumption of delivery the sureness of proof by the return receipt, or, that which is the equivalent of delivery, certification of tender of delivery and refusal by the addressee. This is in keeping with the policy of the new code to require actual notice whenever it is possible to give it as essential to a just and expeditious disposition of the proceedings.” It has long been the rule in this jurisdiction that a mechanics lien is purely a creature of statute; that there is no privity of contract between subcontractor and owner; that the former can obtain a lien only by compliance with the statutory provisions; that it is not enough that the claimant has furnished material and filed his lien, but service of notice upon the owner is one of the necessary steps to obtain a lien; and that without such notice a claimant obtains nothing. (See Potter v. Conley, 83 Kan. 676, 112 Pac. 608; Bridgeport Machine Co. v. McKnab, 136 Kan. 781, 18 P. 2d 186; Jones v. Lustig, 185 Kan. 208, 341 P. 2d 1018, D. J. Fair Lumber Co. v. Karlin, 199 Kan. 366, 430 P. 2d 222.) These cases are controlling on the issue presented here. The judgments entered in the court below are reversed with directions that judgments be entered in favor of the respective defendants. It is so ordered.	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The opinion of the court was delivered by Foth, C.: Defendant was convicted of first degree robbery and he appeals. His sole contention is that certain evidence admitted at his trial was acquired as the result of an illegal search and seizure and should have been suppressed on his pre-trial motion. The state justifies the search and seizure as being incidental to a lawful arrest. Defendant counters by alleging that the arresting officer lacked probable cause to make the arrest, and this is the issue on which the case turns. On June 6, 1970, shortly before 12:30 p. m. an attendant at John’s Derby Station, located at Eisenhower Drive and Whitney Road in Junction City, Kansas, was robbed at gunpoint. After taking a billfold containing the station’s cash the robber forced the attendant to walk south on Eisenhower with him for a half a block, and then sent him back to the station. The robber was last seen walking south on Eisenhower. The attendant called the police who arrived shortly thereafter. A description of the robber was promptly broadcast over the police radio. Sergeant Richard L. Arnold of the Junction City Police Department had been having lunch at home and had just returned to duty in his patrol car at 12:28 when he overheard the radio traffic regarding the robbery. He testified: “. . . The suspect was described as a large, Caucasian male, over six feet tall and weighing approximately 240 pounds, with black, curly hair, graying on the sides, wearing a white T-shirt and dark trousers, last seen walking on foot south on Eisenhower Drive.” In an affidavit for a search warrant not material here he stated that the suspect’s age was also given, as about forty years old. With this information in mind Sergeant Arnold proceeded to Eisenhower and turned south to the first street going west. There, about five or six minutes after the robbery and about eight-tenths of a mile from the scene, he observed a car with California plates turning around and heading away from him. It lacked the Fort Riley bumper decal presumably seen on most out-of-state cars in Junction City. He followed the car to the edge of town and until it turned onto the highway, at which time he was able to see that the driver might fit the description of the robber. At this point he turned on his red lights, the car pulled over, and he asked the driver to step out. He was confronted with: a large Caucasian male; over six feet tall; weighing approximately 240 pounds; with black, curly hair graying on the sides; wearing a white T-shirt and green trousers— the defendant! Sergeant Arnold ordered the defendant into the usual spread eagle against his car and called for help. Two officers arrived who, on Sergeant Arnold’s instructions, advised defendant that he was under arrest for armed robbery. The search complained of followed. One officer found the billfold and money taken in the robbery on defendant’s person; Sergeant Arnold found a loaded pistol and a box of shells under the front seat of defendant’s car. All these items were the object of defendant’s unsuccessful motion to suppress and all were admitted into evidence at his trial over his objection. Did Sergeant Arnold act unlawfully in making the arrest and subsequent search? We have recently said: “. . . An arrest without a warrant to support an incidental search must be made with probable cause. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that a felony has been or is being committed by the person to be arrested. (State v. Hart, 200 Kan. 153, 434 P. 2d 999; State v. Brown, 198 Kan. 473, 426 P. 2d 129; State v. Hunt, 198 Kan. 222, 424 P. 2d 571; State v. Blood, 190 Kan. 812, 378 P. 2d 548; State v. Wood, 190 Kan. 778, 378 P. 2d 536; 5 Am. Jur. 2d, Arrest, § 25; 6 C. J. S., Arrest, § 6b.)” (State v. Little, 201 Kan. 94, 96, 439 P. 2d 387.) This is in accord with the federal cases under the Fourth Amendment. See, e. g., Beck v. Ohio, 379 U. S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223. We have also said (State v. Boyle, 207 Kan. 833, 838, 486 P. 2d 849): “The quantum of information which constitutes probable cause — evidence which would warrant a man of reasonable caution in the belief that a felony has been committed — must be measured by the facts of the particular case. (Carroll v. United States, 267 U. S. 132, 69 L. Ed. 543, 45 S. Ct. 280, 39 A.L.R. 790.)” We must therefore put our prudent man in Sergeant Arnold’s shoes when the defendant got out of his car. Should he arrest the subject standing before him? The subject fit a rather detailed description to a “T,” was in the general locale of the reported robbery minutes after it happened, in a “foreign” car, and was heading away from the scene. Had the Sergeant failed to make an arrest he would, in our view, have been derelict in his duty. True, the subject was wearing glasses while the description mentioned none, and true, he was driving a car while the robber fled the immediate scene on foot. Neither of these details, to our mind, detract significantly from the totality of circumstances which would lead any prudent person to believe that, in all probability, the defendant was the robber. Although each case must turn on its own facts, Sergeant Arnold had far more to go on than the arresting officers in Chambers v. Maroney, 399 U. S. 42, 26 L. Ed 2d 419, 90 S. Ct. 1975, or State v. Kelly, 203 Kan. 360, 454 P. 2d 501. Defendant concedes that if there was probable cause to arrest bim the search and seizure were valid. Since we find abundant evidence of probable cause, the judgment is affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Harman, C.: These appeals are from orders summarily denying inmates of the state penitentiary an evidentiary hearing or any relief on alleged grievances arising out of their imprisonment. The two actions were dealt with separately in the trial court and on appeal were docketed separately in this court. However, we deem it appropriate to consolidate the two actions for the purpose of this opinion inasmuch as the facts in each case are so similar as to raise the same issues of law, the adverse parties are each represented by the same counsel and the appeals were by agreement consolidated for oral argument before this court. Each proceeding was initiated by the pro se filing in the trial court of a lengthy hand written instrument denominated “Petition For Writ of Habeas Corpus Ad Testificandum”. Appellant James filed his petition February 5, 1970 — that of appellant John was filed May 22,1970. In James’ case a writ of habeas corpus was promptly issued to the warden of the penitentiary, in response to which James was produced in open court on February 20, 1970, at which time after certain colloquy between the prisoner and the trial court the latter dismissed the action. John’s action was dismissed the same day it was filed. In neither instance was counsel appointed. Neither appellant questions the legality of the sentence under which he is confined but each complains of the manner in which he has been treated while confined under it. From their petitions it appears that each appellant has undergone solitary confinement in what is known as the adjustment and training building (A & T) within the confines of the penitentiary. James has been continuously confined at the A & T since March 30, 1966. This confinement has been at his own request, under what is known as protective custody status, because he once testified against fellow inmates in a trial arising out of a prison homicide and is in fear of his life if placed at large among the prison population. Highly summarized, James complains of denial of medical treatment and proper diet for stomach ulcers he has developed and lack of exercise or work facilities and rehabilitation programs, for all of which he has repeatedly asked as provided under the prison rules and regulations for inmates. He alleges this constitutes inhumane and cruel treatment and his prayer is for appointment of counsel and an evidentiary hearing and either transfer to another suitable penal institution or release from confinement. An answer was filed in James’ action on behalf of the penal authorities. Briefly it alleges that in 1964 James had been transferred to the reformatory but was uncooperative there and was reincarcerated at the penitentiary. The answer also alleges habeas corpus is an improper remedy and that a proper one would be a civil action for damages or some form of injunctive relief. The answer also pleads the “hands-off” doctrine. John’s petition alleges he has been incarcerated in the A & T building for periods of time ranging from fourteen to 122 days, once for investigation of robbery, once upon trumped-up charges and once upon investigation of fighting; that when he was suffering from self-inflicted wounds he was denied medical attention for a long period of time and finally received incompetent treatment at the hands of an inexperienced inmate nurse; that while confined in A & T he was sprayed by guards with a high pressure water hose which bruised his body and was compelled for three weeks to sleep without adequate clothing on a flooded concrete floor while the air cooling system was operating. He complains also of the food, light, and exercise and sanitation facilities supplied in the A & T building. In dismissing James’ action the trial court stated the petition did not state a claim upon which relief could be granted. In John’s action the trial court, without appearance by anyone, entered an order of dismissal the same day the petition was filed, stating there was no basis for the issuance of a writ on the facts alleged and further that the petitioner had an appeal to this court in another habeas corpus action, referring to it by number (the trial court appears to have been in error as to this appeal as the numbered action referred to is that of James). Appellees present several arguments here in support of the trial court’s action. They assert a proceeding in habeas corpus attacking the conditions of confinement, where the imprisonment is otherwise legal, should not be entertained because traditionally such proceeding is only to inquire into the propriety of the sentence and to order complete release when the sentence is found to be illegal. Appellees suggest actions for damages or for injunctive relief, mandamus or prohibition may be appropriate to insure adherence to legislative requirements respecting penal conditions. They also in effect assert courts are not equipped to exercise supervision over the manner of treatment of those in confinement and to attempt to do so would frustrate the existing administrative function of the penal authorities to investigate alleged acts of mistreatment. Appellees further urge that the petitions relate to past occurrences which should not now be considered in the abstract because they have been rendered moot by the passage of time. Appellants point to decisions in other jurisdictions wherein relief has been granted by both state and federal courts to inmates establishing violation of their rights to humane treatment while confined even though such relief has not extended to total release from confinement. Let us look first at norms which have been established as to the rights of persons confined under conviction of crime. The infliction of cruel and/or unusual punishment is constitutionally prohibited (U. S. Const, amend VIII; Kan. Const. R of R., § 9). K. S. A. 21-119, enacted in 1868 and in effect until repealed and superseded July 1, 1970, provided: “The person of a convict sentenced to confinement and hard labor is under the protection of the law, and any injury to his person not authorized by law shall be punishable in the same manner as if he was not sentenced or convicted.” In City of Topeka v. Boutwell, 53 Kan. 20, 35 Pac. 819, an action in part for damages for harsh and cruel treatment allegedly suffered by a prisoner while confined under sentence in a city jail, this court declared: “It is the duty of all keepers of jails and prisons to treat their prisoners humanely.” (p. 32.) ' K. S. A. 21-119 was superseded by the enactment of that which is now K. S. A. 1971 Supp. 21-4615, which provides: “(1) A person who has been convicted in any state or federal court of a crime punishable by death or by imprisonment for a term of one (1) year or longer and is imprisoned pursuant to such conviction shall, by reason of such conviction and imprisonment, be ineligible to hold any public office under the laws of the state of Kansas, or to register as a voter or to vote in any election held under the laws of the state of Kansas or to serve as a juror in any civil or criminal case. “(2) The disabilities imposed by this section shall attach when the convicted person is delivered to the custody of the state director of penal institutions for imprisonment and shall continue until such person is finally discharged from parole or conditional release or is discharged from custody by reason of the expiration of the terms of imprisonment to which he was sentenced, except that when a sentence of imprisonment is modified by the court within one hundred twenty (120) days from the date thereof and the convicted person is admitted to probation, such person shall not thereafter be subject to the disabilities imposed by this section. “(3) The disabilities imposed upon a convicted person by this section shall be in addition to such other penalties as may be provided by law.” The Judicial Council which drafted the foregoing provision as a part of our present criminal code had this to say respecting it: “Under existing Kansas statutes a prisoner serving sentence for a term of years loses ‘all civil rights — during the term thereof, and forfeits all public offices and trusts, authority and power.’ A person sentenced to life term ‘shall thereafter be deemed civilly dead.’ (K. S. A. 21-118). Convicts serving a term of years retain the right and power to make contracts concerning their property. (K. S. A. 21-134). On the other hand, confinement in the penitentiary either for a term of yeai-s or for life suspends the convicts’ rights to sue (Hammet v. San Ore Construction Co., 195 Kan. 122). In other areas, the status of the inmates’ rights is less clear. “Under the proposal, the convicted person who is confined to prison loses his right to hold public office or employment, his right to vote and his right to be a juror. Otherwise, his civil rights will remain intact, excepting of course, those rights that must be limited in order to make his imprisonment effective. . . .” (Kansas Judicial Council Bulletin, April, 1968, Special Report, p. 136.) K. S. A. 1971 Supp. 21-3425 provides: "Mistreatment of a confined person is the intentional abuse, neglect or ill-treatment of any person who is physically disabled or mentally ill or whose detention or confinement is involuntary, by any law enforcement officer or by any person in charge of or employed by the owner or operator of any correctional institution or any public or private hospital or nursing home. “Mistreatment of a confined person is a class A misdemeanor.” K. S. A. 76-2404 makes it the duty of the director of penal institutions to examine into all matters connected with the government, discipline and police of the penitentiary and to inquire into any misconduct which may be alleged to have been committed by any officer of the penitentiary. The director is also charged with adoption of rules and regulations for the direction and government of the penitentiary. K. S. A. 76-2406 prescribes duties of the warden including the duty to examine daily into the state of the penitentiary and the health, conduct and safekeeping of the prisoners. K. S. A. 76-2423 provides: “There shall be no corporal punishment, and no painful and unusual kinds of punishment inflicted, such as binding the limbs or any member thereof, or placing and keeping tibe person in painful posture; and that the punishment of delinquent prisoners shall be restricted to the ball and chain, but so used as not to torture the person or limbs, and to close and solitary confinement, with such deprivation of light and such limitation in kind and quality of food as may, in the exercise of a sound discretion, produce distress without hazarding the life of the offender.” Finally at its 1972 session the legislature enacted, and the governor signed, that which has become known as the Penal Reform Act (HB No. 2030) to become effective from and after July 1, 1974. The act transfers the duties and functions of the director of penal institutions to the office of secretary of corrections which is created by the act, while the title of the chief officer of the penitentiary is changed from that of warden to director. Section 1 of the act provides: “The legislative purpose in enacting this act shall be deemed to be establishment of a policy of treatment of persons convicted of felonies in this state by placing maximum emphasis on rehabilitation of each such person while in the custody of the state or under the jurisdiction of the courts of the state, consistent with the interests and safety of the public, so that a maximum of persons so convicted may be returned to private fife in the communities of the state with improved work habits, education, mental and physical health and attitudes necessary to become and remain useful and self-reliant citizens. It is the intent of the legislature that district judges, the secretary of corrections, his agents, subordinates and employees and the Kansas adult authority, its agents, subordinates and employees will construe and apply this act and acts of which it is amendatory or supplemental liberally to rehabilitate, train, treat, educate and prepare persons convicted of felony in this state for entry or reentry into the social and economic system of the community upon leaving the custody of these state agencies and officers.” Section 11 provides: “(a) Persons committed to the institutional care of the secretary of corrections shall be dealt with humanely, with efforts directed to their rehabilitation and return to the community as safely and promptly as practicable. . . . The Kansas adult authority shall maintain a comprehensive record of the behavior of each inmate reflecting accomplishments and progress toward rehabilitation as well as charges of infractions of rules and regulations, punishments imposed and medical inspections made. . . . “(b) The secretary, with the cooperation of the state health department, shall establish and prescribe standards for health, medical and dental services for each institution, including preventive, diagnostic and therapeutic measures on both an out-patient and a hospital basis, for all types of patients. An inmate may be taken, when necessary, to a medical facility outside the institution. “(e) The secretary shall prescribe rules and regulations for the maintenance of good order and discipline in institutions, including procedures for dealing with violations. A copy of the rules shall be provided to each inmate.” Section 29 requires the keeping of a record showing all punishment inflicted upon each prisoner and the reason. Section 30 provides: “The discipline to be observed in all correctional institutions of the state shall be reformatory, and it shall be the duty of said secretary to maintain such control over all persons committed to his care as shall prevent them from committing crime and best secure their self-support and accomplish their reformation; and to this end said secretary shall adopt such means of reformation as consistent with the improvement of the inmates as he deems expedient. They may be employed in such labor as will best contribute to their support and reformation.” Section 43 requires approval by the state board of health of the institution in which an inmate is incarcerated. Section 44 (b) provides for the office of an ombudsman to receive and relay to the secretary of corrections complaints of inmate mistreatment. We have directed attention only to a small portion of the act, which is comprehensive in nature, but enough to indicate that when fully operative the major emphasis is to be on rehabilitation. Thus we see legislative concern as to the rights of prisoners in confinement has been increasingly evinced virtually since statehood. The essence of the foregoing was well expressed in Coffin v. Reichard, 143 F. 2d 443 (6CA, 1944), in the following language: "A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law. While the law does take his liberty and imposes a duty of servitude and observance of discipline for his regulation and that of other prisoners, it does not deny his right to personal security against unlawful invasion.” (p. 445.) Moreover, we think that such rights include entitlement to adequate food, light, clothing, medical care and treatment, sanitary facilities, reasonable opportunity for physical exercise and protection against physical or psychological abuse or unnecessary indignity— in short, the basic necessities of civilized existence (see A Model Act for the Protection of Rights of Prisoners promulgated by the National Council on Crime and Delinquency, Vol. 18, Crime and Delinquency, No. 1, (Jan., 1972, pp. 1,10). We have procured and examined the rules and regulations promulgated by the director of penal institutions and generally it may be said they prescribe standards in accord with the rights just stated. The difficulty here is, according to appellants’ allegations, the standards have not been enforced and they have not been afforded those rights. In passing we may state we are aware of no authority hold ing that solitary confinement in and of itself constitutes cruel and unusual punishment. As a matter of elemental justice such rights as an inmate has should not be without an effective means of enforcement. In the absence of adequate administrative procedures inmates should not be denied reasonable access to the courts. However, until comparatively recent times courts have largely adhered to that which has been called the “hands-off” doctrine, which essentially means that courts are without power to supervise prison administration or to interfere with the ordinary prison rules and regulations (see Banning v. Looney, 213 F. 2d 771 [10CA, 1954]). This, of course, represents a denial of jurisdiction over the subject matter of petitions from inmates alleging some form of mistreatment or deprivation. This rigid doctrine is a concept which can be fraught with injustice in its application and is one rapidly being abnegated, primarily by way of entertainment of proceedings in habeas corpus where basic rights are alleged to have been invaded. For example in Coffin v. Reichard, supra, in which assaults at the hands of guards and co-inmates were alleged, the court ruled that any unlawful restraint of personal liberty may be inquired into by habeas corpus even though the person is in lawful custody. And in United States v. Kennedy, 157 F. 2d 811, (2CA, 1946), reversed on other grounds in 332 U. S. 174, 91 L. ed. 1982, 67 S. Ct. 1588, the court speaking through Judge Learned Hand, implicitly endorsed this position when it said: “We can find no more definite rule than that the writ [of habeas corpus! is available, not only to determine points of jurisdiction . . . but whatever else resort to it is necessary to prevent a complete miscarriage of justice.” (p. 813.) For comprehensive discussion with later citations see Goldfarb and Singer, “Redressing Prisoners’ Grievances”, 39 Geo. Wash. L. Rev. 175 (1970); also Notes, 19 Kan. L. Rev. 139; Sneidman, “Prisoners and Medical Treatment: Their Rights and Remedies”, 4 Crim, L. Bull. 450; “Notes and Comments, Complaints of Convicts”, 72 Yale L. Jour. 506. We hold that under our present code of civil procedure habeas corpus is an appropriate remedy where, as in the case at bar, mistreatment of a continuing or probably continuing nature is alleged, and that anything stated to the contrary in Phillips v. Hoffman, 180 Kan. 273, 303 P. 2d 121, can no longer be said to be the law. First of all, K. S. A. 60-102 mandates that the provisions of the code “shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding”. Habeas corpus is that kind of remedy. 60-202 provides that there shall be but one form of action to be known as a “civil action”. 60-1505 (d), prescribing the judgment which may be entered in a habeas corpus proceeding, states “the court may make such other orders as justice and equity . . . may require”. Finally, K. S. A. 60-2606 provides: “If a case arises in which an action or proceeding for the enforcement or protection of a substantive right, or the redress or prevention of a wrong, cannot be had under any specific provisions of this chapter or other statutes then the court shall proceed as nearly in conformity with the provisions of this chapter as the circumstances permit to do whatever law and equity and justice require for the protection of the parties.” And under K. S. A. 1971 Supp. 22-4506 provision is made for appointment of counsel for a prisoner found to be indigent who files a petition for writ of habeas corpus where the court finds that the petition “presents substantial questions of law or triable issues of fact”, such petition to be accompanied by an affidavit that the petition is filed in good faith. At this point a caveat may be in order respecting the consequences of possible abuse of the writ of habeas corpus by those whose desire is harassment of the officials in charge of our penal institutions or who act irresponsibly. Such warning was well expressed by the Idaho Supreme Court in Mahaffey v. State, 87 Idaho 228, 392 P. 2d 279, a habeas corpus action by a penal inmate, in the following: “Because of the fact that we may not, on an application for a writ of habeas corpus, dispute the veracity of the allegations contained in the petition, it is foreseeable that any number of fabrications could be employed in order that the writ might issue. If such tactics are used, this court will not hesitate to deal harshly, through either its power of contempt or by reference to the proper authorities for prosecution on the charge of perjury, against those who would employ fraud and deceit to win a minor legal victory. Any individual who attempts to make a mockery out of procedures designed to benefit the wronged is tampering with the very foundation of our judicial process and risks having additional punishment imposed.” (p. 232.) It should also be emphasized that prison officials as executive officers of the state are charged with the control and administration of the penal institutions of the state and as such are vested with wide discretion in the discharge of their duties. Under familiar rules, that discretion should not be interfered with by the courts in the absence of abuse or unless exercised unlawfully, arbitrarily or capriciously. Maintenance and administration of penal institutions are executive functions and it has been said that before courts will interfere the institutional treatment must be of such a nature as to clearly infringe upon constitutional rights, be of such character or consequence as to shock general conscience or be intolerable in fundamental fairness. It has further been said that the “hands-off’ doctrine operates reasonably to the extent it prevents judicial review of deprivations which are necessary or reasonable concomitants of imprisonment (see 60 Am. Jur. 2d, Penal and Correctional Institutions, § 45, p. 850). In other words, disciplinary measures properly administered in accord with reasonable prison regulations are not subject to judicial review. The petitions in the cases at bar do allege deprivations which, if true, go beyond matters of mere discipline. Hence we hold the trial court erroneously denied a hearing on them and the judgments entered must be reversed with directions to appoint counsel for each appellant and to conduct an evidentiary hearing upon the joinder of issues of fact and law in each case in accord with the views herein expressed. We should emphasize disputed issues of fact respecting mistreatment of inmates should be determined administratively in a grievance procedure wherein the inmate is afforded the basic elements of due process, that is, notice and an opportunity to be heard in an orderly proceeding adapted to the nature of the case (see Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239). The particular type of administrative procedure to be employed should be left to the sound discretion of correctional authorities so as to accommodate the needs of the penal system as well as the interests of the inmates. Chief Justice of the United States Warren Burger, who has evinced a special interest in the functioning of corrections as an integral part of the criminal justice system, has recently stressed the need for “a simple and workable procedure by which every person in confinement who has, or thinks he has, a grievance or complaint can be heard promptly, fairly and fully” (Goldfarb and Singer, “Redressing Prisoners’ Grievances,” supra, p. 317). We are not unaware of the difficult and complex problems pressing penal ad ministrators for solution within available resources. We recognize that much prison discipline is necessarily peremptory and can scarcely be the subject for administrative review nor will every gripe or complaint be of sufficient gravity to warrant such cognizance. As indicated, we have examined the regulations prescribed by the director of penal institutions respecting grievances and must conclude they are so vague and ambiguous as to be inadequate for their intended purpose. Appellants here have alleged they have unsuccessfully sought relief at the prison under those regulations. Counsel for appellees have suggested nothing by way of administrative action in response to the complaints made. Until such time as adequate administrative provision is made for an impartial resolution of factual issues underlying such complaints there is no alternative to judicial inquiry respecting die facts rather than limiting judicial review of administrative actions to its ordinary scope. When appropriate administrative procedures have been established then those remedies will be required to have been exhausted prior to resort to the courts. The judgments are reversed and the actions are remanded for further proceedings heretofore indicated. APPROVED BY THE COURT.	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The opinion of the court was delivered by Foth, C.: This is a trade secret case in which the sole issue on appeal is whether plaintiff’s action was barred by the statute of limitations. The trial court held that it was so barred and dismissed the case at the close of plaintiff’s evidence. Plaintiff appeals. Plaintiff is a welder. The corporate defendant is engaged in the manufacture of welding equipment, tools and supplies, and the individual defendants are its managing officers. On April 23, 1962, plaintiff wrote to defendants saying he had invented a “rotary ground clamp” which was a great improvement over any then on the market. He pointed out its virtues and said he was enclosing a photograph of his working model. (Defendants deny receiving the photograph, but that question is immaterial to the issue before this court.) A “ground clamp” is a device for holding an electrical ground wire in solid contact with metal being welded so as to complete the circuit necessary for arc welding. A “rotary” ground clamp is one designed for use on work which is turned or rotated during welding, such as pipe or cylindrical tanks or drums. Essential features are firm contacts, both internally and with the work, to prevent arcing, and a swivel device to keep the ground wire from twisting as the work is rotated. Plaintiff accomplished these ends by using a conventional C-cIamp for contact with the work and a copper-sleeved ball bearing on a bolt, welded to the C-clamp, for a swivel contact with the ground wire. On May 9, 1962, defendants responded to plaintiff’s letter, stating that they then had no such product in their line, expressing tentative interest, and suggesting he send a sample. Plaintiff promptly complied. On May 24, 1962, defendants returned plaintiff’s working model with the comment that it appeared adaptable for low amperage work, but that their interest in and the chief use of a rotary ground was for high amperage welding with automatic equipment. Plaintiff heard no more, but seven years later, in May, 1969, he discovered in a Tweco catalogue devices offered for sale which appeared to him to be based on his idea. On June 2, 1969, he instituted this lawsuit, alleging the background recited above and: “III “That the plaintiff in good faith disclosed in confidence his rotary ground clamp to the defendants as a potential new product for manufacture and/or marketing by the defendants where the plaintiff was obviously expecting to share in the profits of the defendants and/or to be in reasonable manner rewarded for bringing his rotary clamp to the attention of the defendants, the reward to be negotiated between the interested parties prior to the manufacture, marketing, and/or disclosure of the plaintiff’s rotary clamp outside of the defendant Tweco Products, Inc. company. It was not the intention of the plaintiff that anyone make, use and/or sell or otherwise disclose his rotary ground clamp outside the said company without his consent, and/or without adequately compensating him for the right to do so. “IV “That the defendants on or about March 1, 1968, made public for the purpose of marketing the same general rotary ground clamp disclosed by the plaintiff to them on or about April and/or May, 1962, without the plaintiff’s consent, without compensating the plaintiff for his contribution in this matter, and/or without his general knowledge and consequently to the damage of the plaintiff for the defendants’ joint and/or several breach of implied contract and therefore committed a tort against the plaintiff whereby they have been jointly and/or severally unjustly enriched at tire expense of the plaintiff.” The prayer was for a temporary and permanent injunction against further use or disclosure of plaintiff’s idea, money damages for defendants’ allegedly tortious acts, an accounting, and treble damages. Defendants raised the statute of limitations defense by various pre-trial motions, in their amended answer, and by motion to dismiss at the close of plaintiff’s case, upon trial to the court without a jury. After taking the latter motion under advisement the court concluded that plaintiff had the burden of proof on the issue and permitted him to reopen his case for further evidence. After plaintiff again rested the court sustained the motion to dismiss, making the following findings: “(a) This action was commenced on June 2, 1969; “(b) The Statutes of Limitations controlling this action are K. S. A. 60-510 and sub-section (4) and the last full unnumbered paragraph of K. S. A. 60-513; (c) Plaintiffs evidence showed conclusively that the acts which plaintiff claims caused him substantial injury occurred, if at all, more than two years prior to the commencement of this action; “(d) The ‘fact of injury’, as that term is used in the last full unnumbered paragraph of K. S. A. 60-513 (if any for which defendants would be liable to plaintiff), was, as shown by plaintiff’s evidence, reasonably ascertainable to plaintiff more than two years prior to the commencement of this action. “Therefore, the Court concludes that defendants’ motion to dismiss should be granted and sustained for the reason that if plaintiff ever had a claim against the defendants upon which relief could be granted to him and against defendants, the same has been barred by the provisions of K. S. A. 60-510 and K. S. A. 60-513. “By reason of the above findings and conclusions on the issue of the Statute of Limitations, the Court deems it unnecessary to rule on the other grounds of the motion to dismiss for the reason that they are now moot and the Court does not do so.” The evidence on which this result was based showed that defendants began manufacturing rotary ground clamps in 1963, with the earliest sales in the record being made in March, 1965. By the latter date they were being advertised in a trade journal described as the “bible of the welder’s industry” and were also being shown in defendants’ sales catalogue, which had wide circulation. The particular catalogue in which plaintiff first saw the devices in 1969 had been published March 1, 1966. Plaintiff does not contest the trial court’s finding that defendants’ first use and disclosure of his idea were reasonably ascertainable by him more than two years prior to the filing of his action. His one point, which embraces everything in his statement of points, is summarized by him in his brief as follows: “The misappropriation and continuing use of a trade secret is a continuing tort with respect to which the statute of limitations is not a bar, at least as to the statutory period prior to the commencement of the action. The fact that the initial misappropriation may have occurred more than two years prior to commencement of the action is immaterial. Each misappropriation and use of the trade secret by appellee thereafter constituted a new wrong that started the limitations period running anew. . . . The court below erred in not applying the rule in this case.” Defendants, on the other hand, say that if they misappropriated any secret of plaintiff’s they did so more than two years before he sued, that the tort complained of occurred at that time and the statute then began to run, that nothing occurred which would toll the statute, and the action is therefore barred. Before discussing the positions of the parties it is perhaps well to note what is not involved here. First, because of the basis for the dismissal, we are not concerned with whether the facts proved made out a claim for relief. For purpose of this appeal we assume that plaintiffs idea was a trade secret, that it was disclosed in confidence, and that defendants did make use of the disclosure. See Mann v. Tatge Chemical Co., Inc., 201 Kan. 326, 440 P. 2d 640. Second, we are not concerned with whether the three year statute for implied contracts applies (K. S. A. 60-512). Plaintiff relies exclusively on the general, two year, “not herein enumerated,” tort limitation of K. S. A. 60-513 (4), as amended. Third, we are not concerned with when the tort first caused substantial injury nor, as noted above, with when the fact of injury became reasonably ascertainable. Both are conceded to have first occurred more than two years prior to the commencement of the action. What we are left with is the single question of whether a single cause of action arises (and the statute of limitations commences to run) when a trade secret of the nature of plaintiff’s is first misappropriated, disclosed and used, or whether each use is a new tort and gives rise to a new cause of action with its own period of .limitation. The parties tell us they find only two reported cases in the country directly in point — one going each way. Plaintiff s case is Underwater Storage, Inc. v. United States Rubber Co., 371 F. 2d 950 (D. C. Cir. 1966), cert. den., 386 U. S. 911, 17 L. Ed. 2d 784, 87 S. Ct. 859. The plaintiff-appellant here had developed a system for the underwater storage of strategic materials which it had divulged in confidence to certain employees of the U. S. Navy. The defendant-appellee published a detailed descrip Ron of the system it developed for the Navy, which plaintiff alleged must have been wrongfully obtained from the Navy employees. A three year tort limitation obtained, and more than three years after defendant’s publication plaintiff brought its suit, based on the alleged use of its secret within the three year period. The Court of Appeals for the District of Columbia allowed that after diligent search neither it nor the parties could find controlling precedent, and that “It is therefore necessary in the resoluRon of the quesRon to examine the nature of the tort with which we are concerned, treatment of the issue in analogous contexts, and the policy reasons underlying the competing posiRons of the parRes.” (Id., 371 F. 2d at 954.) Because that opinion encapsulizes principles of trade secret law scattered through a multitude of other cases, and because it cogently sets forth the arguments supporting the result there reached, we quote at some length (Id., at 954-955): “The nature of a trade secret is such that, so long as it remains a secret, it is valuable property to its possessor who can exploit it commercially to his own advantage. Once the secret is published to the whole world,’ however, it loses its protected status and becomes available to others for use and copying without fear of legal reprisal from the original possessor. Appellee argues that because the secret is destroyed upon publication, there can be no recovery by the original possessor against subsequent users since whatever exclusive rights the original possessor had in the secret qua secret cease to exist upon publication. Those using the secret thereafter cannot be sued for invasion of the rights of the possessor of the secret because there was no secret left to be invaded. Thus the idea of a continuing tort for use of a secret after publication is said to be alien to a trade secret case, and appellant is therefore barred from maintaining this action since the alleged misappropriation (by appellant’s own admission) took place more than three years prior to the institution of this action. “Insofar as appellee’s argument extends to parties who are not misappropriators in the first instance, or possessors of the secret by virtue of learning it from the misappropriator(s) with knowledge that it was stolen, we believe this argument to have merit. However, the fault in appellee’s reasoning lies in its applying as a test to its own actions the rights of appellant as against the public generally (id est, those who have acquired the secret after publication), instead of considering the rule which should obtain between the original possessor and the misappropriator or those who have received the secret from the misappropriator with knowledge of the wrongful appropriation. We do not believe that a misappropriator or his privies can baptize’ their wrongful action by general publication of the secret. Nor do we believe that the fact of the destruction of the secret prevents the continued use by the misappropriator or his privies from being a continuing wrong vis-a-vis the original possessor of the secret. It is the continuing use of another’s secret, wrongfully obtained, or used after knowledge that it has been wrongfully obtained, that makes the tort a continuing one. Once the secret is out, the rest of the world may well have a right to copy it at will; but this should not protect the misappropriator or his privies. Their gain is ill-gotten and the passage of time or publication to the rest of the world should not serve to cleanse their hands.” Their conclusion, on admitted policy grounds, was: “. . . We believe the rule should be that in trade secret cases where the secret has been misappropriated the wrongdoer and his privies are amenable to suit for any use of the secret so long as the use has occurred within the statutory period of limitations immediately preceding the bringing of the action.” (Id., at 955.) The opposing view is reflected in defendants’ case, Monolith Portland Midwest Co. v. Kaiser Aluminum & C. Corp., 407 F. 2d 288 (9th Cir. 1969). Plaintiff’s secret there was a device used in cement kilns which its employees revealed to defendant in conjunction with conversations about a potential licensing arrangement. A two year limitation applied to actions on contracts not in writing, and plaintiff brought its action more than two years after defendant started selling the devices. The court held that “Monolith’s cause of action fully matured at the moment Kaiser first made adverse use or disclosure of the trade secret in violation of its confidential relationship.” (Id., at 292.) It went on to say (pp. 292-3): “We also reject Monolith’s contention that the statute of limitations does not bar recovery because the action is upon a continuing tort. Monolith’s rationale, relying primarily upon Underwater Storage, Inc. v. United States Rubber Co. (1966) 125 U. S. App. D. C. 297, 371 F. 2d 950, is that the wrong is the adverse use of the secret disclosed in confidence; each use is a new wrong, and a continuing use is a continuing wrong. Underlying this theory is the concept that a trade secret is in the nature of property, which is damaged or destroyed by the adverse use. The law of the District of Columbia enunciated in Underwater Storage, Inc. is not the law in California. California law is, of course, controlling. California does not treat trade secrets as if they were property. It is the relationship between the parties at the time the secret is disclosed that is protected. (Futurecraft Corp. v. Clary Corp. (1962) 205 Cal. App. 2d 279, 23 Cal. Rptr. 198.) The protected relationship, contractual or confidential, is one to which, as Mr. Justice Holmes observed, some rudimentary requirements of good faith’ are attached. ‘Whether the plaintiffs have any valuable secret or not the defendant knows the facts, whatever they are, through a special confidence that he accepted. The property may be denied, but the confidence cannot be. Therefore the starting point for the present matter is not property . . ., but that the defendant stood in confidential relations with the plaintiffs. . . .’ (E. I. DuPont de Nemours Powder Co. v. Masland (1917) 244 U. S. 100, 102, 37 S. Ct. 575, 576, 61 L. Ed. 1016.) The fabric of the relationship once rent is not tom anew with each added use or disclosure, although the damage suffered may thereby be aggravated. The cause of action arises but once, and recovery for the wrong is barred within two years thereafter unless the statute has been effectively tolled.” Two cases decided since the primary duo discussed above merely exemplify the same split in reasoning. In the first, Shatterproof Glass Corp. v. Guardian Glass Co., 322 F. Supp. 854 (E. D. Mich. 1970), the defendant had hired two of plaintiff’s skilled workmen who, it was alleged, had taken with them secret methods of bending glass. The court relied on and quoted Monolith, and for its own part said (p. 869): “. . . Obviously, the misappropriation of trade secrets is not a continuing offense. The wrong occurs at the time of the improper acquisition.” In the second, Smith v. Piper Aircraft Corporation, 425 F. 2d 823, 826 (5th Circ. 1970), the court noted that “The authority is scant on the question of whether the misappropriation of an idea is a continuing tort, but there are analogous situations in which the courts have found a continuing tort to keep alive an action which would otherwise be barred by the statute of limitations.” The court cited a patent case, a copyright case, and Underwater Storage. However, the court specifically declined to decide the limitation issue since it found that any tort which had occurred was committed outside of Georgia, the forum state; therefore, even if the action was not barred, the defendant was not subject to service under Georgia’s long-arm statute. Neither of these cases affords any real insight into our problem. Plaintiff urges that we accept the Underwater Storage rationale because, he says, we have already recognized a “property right” in a trade secret, citing Mann v. Tatge Chemical Co., Inc., supra, and cases cited therein. Since we are a “property right” state, he continues, we cannot follow the California rationale of Monolith where it is the “confidential relationship” which is protected. But, as Justice Holmes observed, “The word ‘property’ as applied to trademarks and trade secrets is an unanalyzed expression of certain secondary consequences of the primary fact that tibe law makes some rudimentary requirements of good faith.” Du Pont Powder Co. v. Masland, 244 U. S. 100, 61 L. Ed. 1016, 37 S. Ct. 575. To say that there are “property” rights in a trade secret is but a shorthand method of saying that the originator of an idea has certain rights which, under some circumstances, will be protected by the law. One of the circumstances justifying judicial intervention exists where the adverse use is made in violation of a confidential relation ship, and that is the circumstance recognized as actionable in Mann v. Tatge Chemical Co., Inc., supra. Without the breach of confidence the plaintiffs “property right” in Mann would have availed him nothing, as the opinion makes clear. Plaintiff also seeks comfort from the ultimate result in the cases involving the use by the United States during World War II of the Bofors 40 mm. anti-aircraft gun. Aktiebolaget Bofors v. United States, 93 F. Supp. 131 (D. C. D. C. 1950), affirmed 194 F. 2d 145 (D. C. Cir. 1951); Aktiebolaget Bofors v. United States, 153 F. Supp. 397 (Ct. Cl. 1957). Bofors, a Swedish manufacturing firm, licensed the United States in 1941 to use its secret manufacturing process on what was found to be an express condition that the guns produced be used by American forces only. The condition was imposed to protect Bofors’ competitive position in selling to other nations. The United States immediately began furnishing large quantities of the gun to its allies, and after a lengthy period of protest and remonstration Bofors brought an action in the District Court for the District of Columbia for the wrongful use of its trade secret. That action was dismissed for lack of jurisdiction because it was held to sound in contract rather than tort, and the court of appeals affirmed. (There were actually three district court actions, but they all met tihe same fate.) Bofors fared better in the Court of Claims, where the express contractual limitation noted above was found to exist. It was there held that the express contract had no durational limit and therefore Bofors could recover for any breaches which had occurred within the limitation period immediately preceding the commencement of the action. Each export was, in effect, a new breach of the original contract. The three Bofors opinions contain language generally comporting with that found in the cases we have cited on the nature of trade secrets, but their express contract basis renders them of little assistance determining the question of tort limitations. Both parties cite by way of analogy our cases dealing with tortious injury to real property. From these cases the following principles evolve: if a trespasser digs a ditch on another’s property the tort is complete; his failure to trespass again to fill the ditch does not make it a continuing tort, nor does the fact that the full extent of the damage may not be ascertainable at the time the first injury is inflicted. K. P. Rly. Co. v. Mihlman, 17 Kan. 224. If a man builds a dam on his own land causing overflow onto his neighbor’s, he commits a new tort with each overflow if the water level varies with the seasons, but only one if a permanent overflow and consequent appropriation exists. Henderson v. Talbott, 175 Kan. 615, 266 P. 2d 273, and cases cited; Simon v. Neises, 193 Kan. 343, 395 P. 2d 308. A sewage disposal plant may be a nuisance which is permanent, causing permanent injury to property which gives rise to but one cause of action for damages; or it may be temporary, recurring and abatable, giving rise to many causes of action. Adams v. City of Arkansas City, 188 Kan. 391, 362 P. 2d 829. Water pollution from an oil well may likewise have varying effects on neighboring land, with the same varying consequences as to belated actions for damages. Lackey v. Prairie Oil & Gas Co., 132 Kan. 754, 297 Pac. 679. These and similar cases at best form a background against which to examine the nature of the injury done to plaintiff in this case. Our own analysis, made in the light of all the foregoing, turns on the distinction we perceive between plaintiff’s “trade secret,” a tangible, visible product of manufacture of claimed novelty but unpatented — and other secrets such as customer lists, technical know-how, processes of manufacturing and secret formulae. All may be freely used by those who have come by their knowledge by fair means, but for the uninitiated the latter group requires examination, analysis and experimentation before the secret is laid bare. Use may detract from such a secret’s value by exposing it to such scrutiny, but use alone does not destroy it. In contrast, a secret like plaintiff’s once used, is fully exposed to all the world who care to look at a working model. Once in the public eye it has not a shielding hand nor a delicate gesture to divert the viewer’s attention from its vital parts. By mere use its value as a secret is lost forever. This distinctive feature of his secret may make a violation of plaintiff’s confidence a more egregrious hurt than if it had been of the more recondite nature. Nevertheless it makes his basic injury a fixed, palpable, ascertainable and nonrecurring event. Once plaintiff’s rotary ground clamp was put on the market, by defendants or others, his idea lost whatever value it had, except as he might have had a contract for royalties or the like. This feature of some trade secrets was recognized in a case cited by plaintiff, Titcomb v. Norton Company, 208 F. Supp. 9, 18 (D. Conn. 1959), where the purloined secret was a segment of a grinding wheel having unique dimensions: “Any redress for violation of confidence, if found, necessarily would be limited to a period prior to public availability of the segments, for in the absence of patent or contract protection, when a use becomes available to the public it also becomes available to one who has obtained the necessary knowledge in confidence.” A prior second circuit case was distinguished in these words: “. . . Franke v. Wiltschek, 2 Cir. 1953, 209 F. 2d 493 is a case of breach of confidence which is distinguishable upon its facts. There the formula and method of manufacture of a compressed fabric face cloth were disclosed in confidence, together with cost figures and other data obtainable only from plaintiff’s books. Here the only secrets are the dimensions of the article and ‘the very putting of it upon the market destroys the secret of its production.’ (Schavoir v. American Re-Bonded Leather Co., 1926, 104 Conn. 472, 476, 133 Atl. 582, 583.)” (Ibid.) In our case we have the defendants’ breach of confidence, resulting in the publication of plaintiff’s secret to the world at large, no later than March, 1965. At that point defendants’ competitors were free to copy, produce and market an identical product with impunity. Should the defendants then be forever barred from manufacturing a product which is in the public domain? This would be the practical result if each use by defendant is a new tort. They could not, ten years hence, initiate production of plaintiff’s rotary ground clamp though thousands like it were on the market. We think this sort of disability, extending ad infinitum, is an unwarranted penalty for what we regard here as one transgression, however aggravated. Unlike the Underwater Storage court, we think that time may and does “cleanse the hands” of many a wrongdoer, at least to the extent that his moral liability may no longer be legally enforced. Even one who misappropriates and remains in adverse possession of that most sacrosanct of property, real estate, eventually passes beyond the law’s reach — although every day of his continued possession and use may deeply affront the sensibilities and insult the “legal title” of the erstwhile true owner. The adverse possessor of realty, and the converter or embezzler of personalty, have the same continuing duty as that of defendants here, i. e., a duty not to use that which is rightfully another’s. That duty will be enforced by the courts in an action timely brought, but not thereafter. We therefore hold that an action based on the tortious use of plaintiff's particular trade secret could only be brought within two years of the time plaintiff first could reasonably have ascertained the fact of such use. The trial court correctly held that this action was barred by the statute of limitations and its judgment is affirmed. APPROVED BY THE COURT. Fontron, J., dissents.	[ -108, 120, 90, -51, 10, 96, 56, -102, 113, -83, 101, -13, -51, -46, -124, 112, 127, 119, 80, 107, 119, -78, 19, -21, -46, -13, -71, -35, -15, 107, -95, 95, 76, 112, -62, -59, -25, 16, -59, 90, -52, 4, 59, -21, 57, 8, 24, 122, 118, 79, 1, -100, 115, 46, 28, -53, -56, 38, -21, 61, -16, 25, -77, 5, 93, 20, 34, 5, -98, 101, -8, 30, -100, -71, 0, -24, 114, -76, -124, -12, 99, -7, 0, 99, 99, 32, -99, -25, -20, 56, 39, -98, -113, 39, -72, 40, 27, -81, -66, -67, 58, 22, 37, 126, 110, 29, 94, 109, 3, -126, -126, -61, 15, 96, -36, -125, -17, -93, 20, 65, -49, -18, 94, 68, 123, 23, -50, -98 ]
The opinion of the court was delivered by Fontron, J.: This action is brought under K. S. A. 60-907 (a) to enjoin the collection of 1961 and 1962 sewer tax assessments levied against certain lots in Lester Matlock’s First Addition to Emporia, Kansas. The plaintiffs, A. E. Nickelson and Emma Nickelson, purchased the lots November 30, 1962, and they have been joined in this action by parties to whom they have conveyed a number of the lots. They will be referred to collectively as plaintiffs throughout this opinion. The defendants include the Board of County Commissioners of Lyon County, Kansas, and, we may presume, certain elected officials of that county, although the record does, not disclose who they may be. Despite this shortcoming we shall refer to the defendants either by that term or as the county. Judgment was entered in the court below in favor of the defendants, and tire plaintiffs have appealed. The controlling facts have been stipulated. On March 16, 1960, Lyon County Sewer District No. 1 was created. As of that date-Lester Matlock’s First Addition had not yet been platted. On December 28, 1960, the Matlock addition was platted and was-annexed to the city of Emporia. The plat was duly filed of record February 1, 1961. On September 29, 1961, the sewer district was enlarged by resolution of the Lyon County Board of Commissioners to include the area platted as Lester Matlock’s First Addition. However, the-resolution described the added area not as Lester Matlock’s First Addition but as the East Plalf (EM) of the Northeast Quarter (NEM) of the Southwest Quarter (SWM) of Section 8, Township-19, Range 11 East of the Sixth P. M. lying north of the Kansas State Highway right-of-way line, said highway being known as-U. S. 50 S, less easements for public highway, containing 17 acres. The sewer tax assessments for 1961 and 1962 were first placed, on the Lyon County tax rolls against the above tract as a whole, as it was described in the commissioners’ resolution, and it was-not until sometime in 1963 that the assessments were broken down and placed on the tax rolls for each of the lots located in theMatlock addition. In the meantime, and on November 30, 1962, the Nickelsons became the owners of the lots involved in this lawsuit, pursuant to a contract under which the seller was to pay the 1961 and 1962 taxes.. In accordance with that contract the seller did pay all 1961-62 taxes-as they were shown on the tax rolls for those years. As we have said, the sewer assessments were not placed on the-tax rolls against the plaintiffs’ lots until sometime in 1963 (the exact date not being shown),- when the county clerk corrected the rolls and spread the escaped assessments against the lots in Matlock’s First Addition. In taking this action, the clerk proceeded under the provisions of K. S. A. 79-417, which reads as follows: “It shall be the duty of the county clerks in all cases where any lands or improvements in their respective counties for any reason have not been assessed for taxation or have escaped taxation for any former year or years when the same were liable to taxation, to place the same upon the assessment and tax rolls, and to charge against said lands or improvements taxes equal to and in accordance with the tax levies that would have been charged against said lands or improvements had they properly been listed and assessed at the time they should have been assessed under the provisions of the general laws governing the assessment and taxation of land: Provided, That no lands or improvements shall be assessed under the provisions of this section, where the same have changed ownership other than by will, inheritance or gift.” Under our present tax procedures, the county clerk is enjoined by statute, after all levies required by law have been certified to him, to compute the sums to be levied upon each tract or lot of real property, in the name of the owner, if known, and upon the amount of personal property in the name of each person, company or corporation, which shall be levied equally upon all real and personal property subject to the same tax, and set down all taxes on the tax roll. (K. S. A. 79-1803.) The possibility of human error being always present in the affairs of mankind, the legislature in K. S. A. 79-417, authorized the county clerk to correct any errors in or omissions from the tax rolls which might be discovered after the tax rolls had been certified and delivered to the county treasurer; but this authority was circumscribed by the limitation set forth in the proviso. From the facts of this case it is apparent that mistakes were made in preparing the 1961 and 1962 Lyon County tax rolls. The sewer assessments for those years were entirely omitted from the 1961-1962 tax rolls of Lester Matlock’s First Addition and were not placed of record against the lots in that addition until the 1963 tax rolls were prepared, even though the plat of the addition had heen recorded February 1, 1961, and, presumably, a copy filed with -the county clerk as required by K. S. A. 12-403. The defendants frankly concede that the county clerk, in attempting to correct the mistakes of the past, was proceeding under the authority contained in K. S. A. 79-417 when he placed the escaped sewer assessments on the 1963 tax rolls standing against the lots then owned by the plaintiffs. In their brief, the defendants say: . . The Clerk has a positive statutory duty and direction to place such escaped lands properly on the tax rolls, for the sum properly due, with penalty and interest as may become due under K. S. A. 79-417.” The trial court expressed much the same view in entering judgment in favor of the county. We find it somewhat incongruous for the county to rely on K. S. A. 79-417 in placing the escaped sewer assessments on the tax roll against the plaintiffs’ property and at the same time to deny the pertinency of the proviso which forms a part of the very same statute. The proviso, which recites that no lands shall be assessed under the provisions of the statute (79-417) where they have changed ownership other than by gift, will or inheritance, fits the plaintiffs’ position exactly, for they acquired ownership of their lots through purchase. As it appears to us, the underlying purpose of the proviso must be, as the plaintiffs point out in their brief, to protect bona fide purchasers against taxes which may be due but which are not shown on the tax rolls. A purchaser should be able to rely on the integrity of the tax rolls as they stand at the time of purchase. The instant case presents a prime example of the prejudice which might result to a purchaser if the rule were otherwise. When the Nickelsons bought the lots in question, the seller agreed to and did in fact pay the taxes then shown due for 1961 and 1962. Inasmuch as the sewer assessments for those two years were not then on the tax rolls against the lots, those taxes were not paid by the seller — and the seller has since become insolvent. The county argues that the sewer taxes were lawfully levied when the county commissioners adopted the resolution of September 29, 1961, and that the act of placing them on the tax rolls as escaped assessments was a purely ministerial act. We have some difficulty understanding the force of this argument. It makes little difference, in our view, whether the placing of an escaped assessment on the tax roll be denominated ministerial or administrative; the results to a good-faith purchaser are the same in either case. We recognize that K. S. A. 79-417 is remedial in purpose and is designed to prevent property escaping its fair share of the tax burden. To that end the statute is fashioned to enable the county clerk to place on the tax rolls whatever escaped tax or assessment the property should have borne in the first instance — but, as the proviso recites, not at the expense of a good-faith interim purchaser. The language of the statute may perhaps be cause for some mis understanding as to its impact or meaning because of the imprecision with which the words “tax”, ‘levy” and “assessment” are sometimes used in connection with taxes. All three terms are comprehended within the taxing process and are frequently employed in the sense of being interchangeable. (Commercial National Bank v. Board of County Commissioners, 201 Kan. 280, 440 P. 2d 634.) In the overall picture, however, we view K. S. A. 79-417 as permitting any escaped or omitted tax, levy or assessment to be added to the tax rolls against the property to which it originally should have been charged, except where the property has in the meantime changed hands other than by means of gift, will or inheritance. Rather surprisingly K. S. A. 79-417 has received scant judicial attention. In Harris v. Drought, 24 Kan. * 524 [2d Ed. 375], the court referred to a proviso phrased in identical words which was part of the statute then authorizing county clerks to place escaped taxes on the tax rolls. It was said in that case, however, that the proviso was not then before the court because it seemed that the purported conveyance was intended for a mortgage. The second and only other case which has come to our attention is Walker v. Douglass, 2 K. A. 706, where reference is made to Compiled Laws of 1879, ch. 107, § 54, the predecessor of K. S. A. 79-417, and the same proviso is mentioned but not construed. There is nothing in either of these cases which tends to question in any way the applicability of the proviso before us. We have not overlooked the challenge made by the county to the court’s jurisdiction to act in this case. It is said that K. S. A. 60-907 (a), on which the plaintiffs rely in bringing this action, may not be used to enjoin the collection of taxes under the conditions which obtain here. The statute reads as follows: “Injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment, the collection thereof, or any proceeding to enforce the same.” As we understand the county’s argument it centers about the words “illegal levy.” It is said the levy of the sewer tax made by the county commissioners was not of an illegal nature, but that the tax was levied legally under the provisions of G. S. 1949 (now K. S. A. 1971 Supp.) 19-2705, which pertains generally to the construction and financing of sewers. The legality of the proceedings which led to the formation of the original sewer district and to the resolution of September 28, 1961, enlarging the district and levying assessments upon the additional land therein, has never been questioned in this case, but this is not dispositive of the jurisdictional question. The plaintiffs’ complaint goes not to illegality on the part of the county commissioners but to unauthorized action on the part of the county clerk in placing the escaped assessments of yesteryears upon the tax rolls, after the plaintiffs had purchased their lots for value. It is in this context that plaintiffs contend the levy is illegal as to them — and we are inclined to agree. In a number of recent cases this court has had occasion to explore the meaning of the expression “illegal levy of any tax, charge or assessment” as it is contained in 60-907 (a). In Mobil Oil Corporation v. McHenry, 200 Kan. 211, 234, 436 P. 2d 982, we said: “Cases throughout the history of Kansas disclose that the expression ‘the illegal levy of any tax, charge or assessment,’ contained in 60-907, supra, and its predecessors, has reference to action of an administrative official or board taken without authority, or action of an administrative official or board which is permeated with fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud in connection with the levy of any tax, charge or assessment.” See, also, Mullins v. City of El Dorado, 200 Kan. 336, 436, 436 P. 2d 837; Mobil Oil Corporation v. Reynolds, 202 Kan. 179, 183, 446 P. 2d 715, where die same or similar language is employed. In the case at bar the action of the county clerk, in placing the escaped sewer assessments for 1961-1962 on the 1963 tax rolls against property now owned by plaintiffs, after that property had been purchased for a valuable consideration, was unauthorized — it was not sanctioned by K. S. A. 79-417. That statute, it is true, authorizes the clerk to place property on the tax rolls where it has escaped taxation, or where assessments have been omitted, but the authority does not extend to property which has in the meantime changed ownership by means other than gift, will or inheritance. Hence, we conclude that K. S. A. 60-907 (a) is available to these plaintiffs as a vehicle for obtaining relief. The judgment of the court below is reversed with directions to enter judgment for the plaintiffs.	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The opinion of the court was delivered by Kaul, J.: This appeal stems from a controversy arising from the efforts of Margaret A. Castagna, formerly Washburn, to enforce a judgment for past due alimony and child support against her former husband, Howard Washburn. The judgment was in the original sum of $8,014.00. (See Washburn v. Washburn, 204 Kan. 160, 460 P. 2d 503.) Both Howard and Margaret remarried and Howard was later divorced from his second wife, Dorothy Lee. Plaintiff-appellee, Jackson & Scherer, Inc. (hereafter referred to as plaintiff or Jackson), a partnership at the time, owned property at 1718 North 79th Street in Kansas City, Kansas, upon which it built a residence after securing a short-term construction loan in the amount of $37,500 from the Brotherhood State Bank (hereafter referred to as Bank) on April 27, 1966. The residence was completed and, on August 9, 1967, Howard Washburn and his wife, Dorothy Lee, executed an option agreement with Jackson & Scherer, Inc. to purchase it for the sum of $55,000.00. Bank’s loan to plaintiff was increased to $44,000.00 and a ten-year mortgage was executed. In January 1970 Howard became in default on the option agreement which was written on a Form 319A “Option Agreement — Flat Payment” — a document which has been quite familiar to this court down through the years. (See Letzig v. Rupert, Executor, 209 Kan. 143, 495 P. 2d 955.) In the meantime, Margaret, on December 16, 1969, in her divorce action against Howard, procured an order of sale of the property. The sale was set for January 20, 1970, and notice thereof was published in the Wyandotte Echo, a weekly newspaper published in Wyandotte County. On January 15, 1970, plaintiff filed this action against Glenn E. Brunk, Sheriff of Wyandotte County, Margaret Washburn a/k/a Margaret A. Castagna, and Howard and Dorothy Lee Washburn. Plaintiff alleged that it owned the property; that it was indebted to Bank in the amount of $41,379.54, secured by a first mortgage on the property; and that, assuming Howard and Dorothy Lee complied with the option agreement, they would be presently indebted to plaintiff in the amount of $43,746.19. Plaintiff further alleged that defendants each claimed some estate in or lien on the subject real estate, but whatever claims any of the defendants had they were inferior and subject to the title of plaintiff; and that all of the defendants should be ordered to present their claims. Plaintiff further alleged that if defendant sheriff attempted a sheriff’s sale of the subject property, the rights of plaintiff would be seriously prejudiced. Plaintiff prayed that its title be quieted as against each defendant; that the court should set out what inferior claims the defendants might have to the property; and that the sheriff be restrained from selling the property under the order of sale issued in Margaret’s divorce action. An ex parte order was issued restraining the sheriff from proceeding with the sale until the further order of the court. On January 23, 1970, Howard filed an answer alleging that he had an equitable interest in the property and that it was his homestead. He further alleged that he and Dorothy Lee Washburn had purchased an option agreement on subject real estate and had paid $11,253.81 on said contract. Bank moved to intervene and filed an answer alleging the indebtedness of plaintiff; that it was a renewal and extension loan made to plaintiff for the purpose of constructing a house on the property; that Bank’s mortgage was a purchase money mortgage; and that any interests of Howard, Dorothy Lee or Margaret were inferior to the title of plaintiff and the lien of Bank. On February 7, 1970, Margaret filed an answer denying that plaintiff’s rights would be prejudiced by the sheriff’s sale. Margaret also filed a counterclaim against plaintiff in which she alleged that the restraining order was unnecessary; that it was maliciously issued without any reasonable or probable cause. Margaret prayed for actual damages in the amount of $3,500.00 and punitive dámages in the amount of $50,000.00 on her counterclaim. On February 9, 1970, Margaret filed a motion to dissolve the restraining order. On February 20, the motion was heard and denied— the trial court ruling as follows: “The motion of Margaret Castagna to dissolve the restraining order in the above matter was heard on February 20, 1970, and was taken under advisement. I have since examined the files in the two cases. In my opinion, a fair sale of any kind would be very improbable until after such time as the various interests and priorities are determined. The motion will therefore be overruled. I have set the matter for trial to the Court on Monday, March 23, 1970, commencing at 9 a. m. and I have allowed one-half day for the trial. As a matter of fact, it seems to me that the parties could stipulate as to practi cally all of the facts, at least insofar as the documents and records concerned are involved. I do not believe the interests of Mrs. Castagna will be jeopardized by staying the sale until the matter can be heard and therefore no bond will be required.” In the meantime, plaintiff filed a separate action against Howard and Dorothy Lee seeking cancellation of the option agreement. This action was consolidated with the instant action and both came on for trial to the court on March 23, 1970. The trial court filed a comprehensive memorandum in which it reviewed the claims of the parties; their stipulations, testimony and exhibits before the court. The trial court held that the option agreement was in default and should be canceled, the restraining order should be set aside and the property sold, either at private sale or if that could not be accomplished then by judicial sale and the proceeds applied first, to the payment of costs and taxes, second, to the Bank’s mortgage, third, to Margaret’s judgment, and fourth, the balance — if any — to plaintiff. The court reserved jurisdiction to make any orders necessary to effectuate the judgment and further ruled that plaintiff’s motion for summary judgment on Margaret’s counterclaim would be set for hearing at an early date. After a dispute concerning a journal entry, judgment was entered on April 14, 1970, at which time the court found that the real estate should be sold at private sale. On June 6, 1970, Howard moved the court to set a date at which the private sale should be concluded and further, if the private sale be not concluded by the date set, the court should determine his amount of equity and the redemption he was entitled to under the option agreement. The private sale referred to in the court’s judgment was a sale between Howard and Dorothy Lee Washburn, sellers, and Jerry L. Andrew, purchaser, all of whom executed a contract for the purchase of the real estate on January 27, 1970. The sale price was $54,000.00 to be paid $1,000.00 down and the purchaser to pay the difference in cash between the sale price and the outstanding loan held by Bank in the approximate amount of $41,000.00. The contract further provided that the sellers (Howard and Dorothy Lee) were to pay plaintiff a six percent sales commission. In connection with the private sale it should be mentioned that on February 19, 1970, Margaret, in her divorce action against Howard, commenced a collateral proceeding to enforce her judgment by filing a praecipe for garnishment naming Andrew as a garnishee defendant. The garnishment proceeding was processed in another division of the Wyandotte District Court. Margaret’s appeal from an adverse ruling therein has reached this court and is decided this day. (Washburn v. Andrew, 209 Kan. 436, 496 P. 2d 1367.) One June 19, 1970, a report of the private sale to Andrew was filed in which it was stated that the conditions of the purchase contract referred to had been complied with and that a deed conveying the property from plaintiff to Jerry L. and Beverly A. Andrew had been filed of record; that the net proceeds of the sale totaled $12,654.16, which was paid into the court on the filing of the report. On August 31, 1970, the trial court filed its ruling on plaintiff’s motion for summary judgment on Margaret’s counterclaim holding that Margaret’s motion to dissolve the restraining order upon which her counterclaim was based was overruled by the court and, therefore, summary judgment should be entered for the plaintiff. Thereafter, this appeal was perfected. The first point raised by Margaret on appeal is that the trial court erred in refusing to permit her to proceed with a judicial sale of the subject real estate. Margaret argues that as a judgment creditor she had an absolute right to a judicial sale of Howard’s interest on January 20, 1970, the original date of the sheriff’s sale. The trial court granted the restraining order on the ground that the sale would produce injury to the plaintiff and that a fair sale of any kind would be very improbable until the various interests and priorities were determined. Plaintiff was the owner of the property. Howard’s interest was only that which might be acquired under a Form 319A “Option Agreement — Flat Payment.” (See Stevens v. McDowell, 151 Kan. 316, 98 P. 2d 410; and Letzig v. Rupert, Executor, supra.) The option agreement specifically provided that the Washburns (Howard and Dorothy Lee) “shall not assign or transfer this option or rights thereunder without the written consent of” plaintiff. The substitution of the purchaser at a judicial sale, as purchaser under the option agreement, could well have injured the rights of plaintiff as owner of the property so as to give it sufficient interest to restrain the proposed sale by Margaret until a full sale of the property could be had with a determination of priorities. Margaret’s praecipe for sale and the order issued thereon are not reproduced in the record, therefore, we are not informed as to any conditions, if any, with respect to liens or encumbrances under which the proposed sale was to be had. It is true that generally the- interest of a judgment debtor in property may, in a proper case, be levied upon and sold on execution subject to liens or encumbrances already existing. (K. S. A. 60-2406; Koelliker v. Denkinger, 148 Kan. 503, 83 P. 2d 703; and Thompson v. Zurich State Bank, 124 Kan. 425, 260 Pac. 658.) In the instant case, however, the plaintiff — not Howard — was the owner of the subject property when Margaret’s execution sale was restrained. Plaintiff, of course, was not a party to Margaret’s divorce proceeding in which the execution was sought. In the case of Yount v. Hoover, 95 Kan. 752, 149 Pac. 408, we held: “An action can be maintained by the owner of real property to enjoin its sale under an execution issued on a judgment against another person in an action to which the owner of the property was not a party.” (Syl. f 2.) See, also, 30 Am. Jur. 2d, Executions, § 630 [Owners of property or interests therein], pp. 800-801; and 42 Am. Jur. 2d, Injunctions, § 78, p. 823. Plaintiff, as owner of the subject property, instigated this action seeking equitable relief in the form of quieting title, establishing priority of liens and the restraining of an execution sale in an action to which it was not a party. Even though Howard may have had an interest subject to Margaret’s judgment lien, we believe the trial court acted with discretion and within the scope of its equitable powers under the extraordinary circumstances in restraining the sale until the conflicting interests and priorities of the various parties could be determined. In support of her position, Margaret relies primarily on our decision in Brieger v. Brieger, 197 Kan. 756, 421 P. 2d 1, wherein we set aside a trial court’s order permanently enjoining the sale of real estate on execution of a judgment for child support. The issue presented in Brieger is clearly distinguishable from that before us here. Mrs. Brieger secured a divorce and an award of $60 per month child support for minor children placed in her custody in the District Court of Neosho County. In the same decree the court divided the property of the Briegers’ setting over certain city real estate in Neosho County to Mrs. Brieger and an 80-acre farm in Wilson County to Mr. Brieger. Mr. Brieger defaulted in the child support payments. About two years after the divorce, an attested copy of a journal entry of the judgment was filed with the clerk of the District Court o£ Wilson County. Several months after the filing of the journal entry Mr. Brieger sold his Wilson County farm. Approximately three years after the sale the farm was reconveyed and some six or seven months after this last conveyance, a praecipe for execution was filed in the District Court of Neosho County and an execution was issued directing the sale of the Wilson County farm. The proceeds of the sale were to be applied first, to costs, second, to taxes, and third, to plaintiff’s judgment which amounted to over $3,000.00. At this juncture, the last grantee of the Wilson County farm filed a motion to intervene in the Neosho County case and a petition for a temporary restraining order restraining the sale on execution — the said grantees claiming that no judgment lien was created by the filing of the journal entry of divorce in Wilson County. The grantees of the Wilson County farm argued that the award of monthly child support payments lacked the finality of a money judgment and created no lien whatsoever and the trial court so held. The majority of this court, in line with previous decisions cited in the opinion, held that installments of child support when they are due and unpaid become final judgments, constitute a lien upon the real estate of a delinquent father and may be enforced and collected as other judgments. The decision made a careful distinction concerning payments due and unpaid and payments required to be made in the future. In other words, the issue in Brieger was whether or not past due installments of child support gave rise to an enforceable judgment lien. The trial court there held that no lien was established and permanently enjoined the execution sale. There was no question about Mr. Brieger’s full ownership of the Wilson County farm when the judgment was filed. In the case at bar, the validity of Margaret’s judgment lien is not challenged. Here plaintiff owned the subject property and the issue is whether plaintiff was entitled to restrain execution pending a determination whether Howard had an equity in plaintiff’s property that was subject to execution and if so the extent of his equitable interest. In Brieger the farm in question was setoff to defendant husband, and he became the full legal owner at the time of the divorce. In the instant case, Howard never acquired legal title to the subject property, and any interest acquired under the option agreement came into being long after the divorce decree. None of the rulings of the trial court, as we view them, operated to extinguish Howard’s equity, if there was one, or to absolve the hen of Margaret’s judgment thereon. The trial court’s problem in this case was to ascertain whether Howard had an equity which could not be done until other interests and the priorities thereof in the subject property were established; whereas in Brieger the trial court’s judgment enjoining the execution sale operated to obliterate entirely the lien of the wife’s child support judgment. The trial court’s order in the case at bar did not operate to extinguish Margaret’s lien but only restrained the sale of the property at the instance of the owner thereof. We turn next to Margaret’s contentions concerning the trial court’s approval of the private sale to Jerry L. Andrew. While Margaret claims the trial court erred in approving the private sale, the thrust of her argument goes to the disposition of the proceeds rather than insisting that the sale be set aside. As previously noted, a contract of sale was executed on January 27, 1970, showing Howard and Dorothy Lee Washburn as sellers and Jerry L. Andrew as purchaser, notwithstanding the fact that plaintiff claimed to be the owner when the action was filed on January 15, and in fact conveyed the property to Andrew by its deed, as shown by the report of 'sale made to the court on June 19, 1970. Margaret vigorously complains concerning plaintiff’s charge of a six percent sales commission for selling its own property, the effect of which was to deplete Howard’s interest in the amount of $3,240.00. She further says that under the terms of the contract the real estate commission was only a personal obligation of Howard’s rather than a lien on his equity, which could not intervene as to her. Margaret further complains that the accumulation of interest also worked a diminution in value of Howard’s equity, thus depriving her of her judgment lien to that extent. Margaret argues that insofar as Howard might attempt to transfer the property to Andrew so as to defeat her judgment lien against his equity, such transfer was and would be a nullity with respect to the priority of her lien. When Howard executed the contract of sale to Andrew and agreed to pay plaintiff a commission on January 27, 1970, both he and plaintiff were well aware of Margaret’s attempt to enforce her lien by execution sale on January 20, 1970. Howard had filed his answer in this action on January 23 in which he claimed an interest in the property — should he be permitted at this juncture to encumber his interest by agreeing to pay plaintiff, the legal owner of the property, a real estate commission and thus deprive Margaret of her lien to that extent? We believe not. A judgment hen operates to give the judgment creditor priority over other adverse interests subsequently acquired and precludes the subsequent disposal or encumbrance of the property from operating to prejudice the judgment creditor. (46 Am. Jur. 2d, Judgments, § 243, p. 472; Shinn v. Shinn, 42 Kan. 1, 21 Pac. 813.) On this point we note the inconsistent positions taken by plaintiff in first justifying its right to a restraining order on January 15, 1970, as owner of the subject property and then a few days later, on January 27, 1970, claiming a sales commission as a realtor for Howard, thus enhancing plaintiffs interest by depleting Howard’s interest, which in turn resulted in the diminution of Margaret’s lien. In accord with what has been said the trial court’s judgment establishing priorities is modified with respect to plaintiff’s real estate sales commission. Regarding Margaret’s contention concerning the accrual of interest and taxes, plaintiff’s rights as to these matters stemmed from the option agreement rather than from a subsequent separate personal agreement as in the case of the sales commission. The option agreement provided that if the premises were occupied without payments being made for taxes, special assessments, etc., the plaintiff (first party)— “. . . [SJhall have the right to re-possess said premises. In the event second party shall occupy said premises under this agreement, without making the payments herein provided to be made for taxes, special assessments, tax bills and insurance, first party shall have the right to recover from second party the amount thereof during such occupancy, with interest at ten per cent per annum thereon, or add the amount thereof and said interest to the purchase price hereinbefore specified. . . .” The evidence showed that Howard occupied the premises until June 1970 without making payments, thus the additions to the option agreement price are in accord with the terms of the contract. Since Howard’s interest, subject to Margaret’s lien, must be measured by the terms of the option agreement it follows that Margaret’s lien is inferior to plaintiff’s claim in this regard. Margaret claims the trial court erred in determining that Bank’s mortgage was prior to her lien, particularly as to the extent of the new money involved in the subsequent mortgage executed on August 23, and recorded on August 29, 1967. As previously noted, Howard and Dorothy Lee executed the option agreement with plaintiff on August 9, 1967. Margaret claims her judgment lien intervened. On this point the trial court found as follows: “The evidence was that the first mortgage was a construction mortgage securing a note falling due on April 27, 1967, and that this loan was renewed for an additional six months. It was unpaid and of record on August 9, 1967. The Washburns did not have sufficient money to purchase the property and apparently could not get financing for the amount. In order to consummate the sale, therefore, the plaintiff seller, entered into the option agreement for the sale to the Washburns and on the same day made application to the Bank for a loan sufficient to renew the construction mortgage and to give the seller some money out of its investment in the property. The new mortgage was subsequently made for a ten-year term and the payments were tied in to the payments due under the option contract. The note and mortgage were executed on August 23, 1967, and recorded on August 29, 1967, after Washburn’s own attorney and office associate furnished a supplemental opinion to the Bank that the new mortgage was a first lien. Regardless of the fact that the new mortgage was not executed and recorded until after the date the Wash-burns took possession of the property and until one day after the first mortgage had been released of record, the new note and mortgage were part and parcel of a single overall transaction by which the Washburns purchased the property. While there is some dispute in the evidence, it does not seem credible that the Washburns were not aware of this financing agreement, particularly in view of the fact their own attorney furnished the supplemental opinion to the Bank. The Washburns benefited from the transaction and did not and cannot now complain of the arrangement by which their purchase was made possible, and the judgment creditor has no greater rights than the Washburns. In equity, the Bank’s mortgage should not be subject to the lien of the judgment creditor under these circumstances.” We believe the trial court fully and correctly resolved the issue. In Potwin State Bank v. Ward, 183 Kan. 475, 327 P. 2d 1091, 80 A. L. R. 2d 166, we held: “Whether the taking of a new mortgage in place of a prior one amounts to an extinguishment thereof depends upon the intention of the parties, and the acceptance by a mortgagee of a new mortgage does not amount to a payment or satisfaction and does not deprive him of his right to have the lien of the prior mortgage continued as against an intervening hen, in the absence of an intention to give priority to the intervening lien and the absence of paramount equities.” (Syl. f 5.) Prairie State Bank v. Safford, 140 Kan. 339, 36 P. 2d 1015, was an action to foreclose a real estate mortgage wherein it was held: “. . . [R]elease of a prior mortgage, and the taldng of the mortgage sought to be foreclosed, did not render the hen for the indebtedness secured by the mortgages inferior to the hen of a judgment intervening between the giving of the old mortgage and the giving of tire new.” (Syl.) The Bank’s subsequent loan made possible Howard’s acquisition of some interest in the property through the option agreement. But for Bank’s mortgage the sale represented by the option agreement could not have been consummated and no interest in the property could have accrued to> Howard, thus there was no interest of Howard’s at this juncture upon which Margaret’s lien could intervene so as to be superior to either Bank’s mortgage or plaintiff’s rights either as owner or under the option agreement. However, this cannot be said of plaintiff’s rights under a subsequent collateral agreement with Howard for a real estate sales commission which would have operated to prejudice Margaret’s lien. Finally, Margaret claims the trial court erred in sustaining plaintiff’s motion for summary judgment directed at her counterclaim, which she says stated a cause of action for abuse of process. Plaintiff, on the other hand, says that if the counterclaim stated any cause of action it was in malicious prosecution. In view of our holding that the issuance of the restraining order, under the circumstances, was proper an action on either theory could not be maintained. The nucleus of each theory is succinctly stated in 1 Am. Jur. 2d, Abuse of Process, § 2: “. . . An action for abuse of process differs from an action for malicious prosecution in that the latter is concerned with maliciously causing process to issue, while the former is concerned with the improper use of process after it has been issued. Thus it is said in substance that the distinction between the two is that malicious use of process is the employment of process for its ostensible purpose, but without reasonable or probable cause, whereas the malicious abuse of process is the employment of a process in a manner not contemplated by law, or to obtain an object which such a process is not intended by law to effect.” (pp. 250-251.) In Ahring v. White, 156 Kan. 60, 131 P. 2d 699, this court said: “An action for malicious prosecution of a civil suit differs from an action for damages for abuse of process. (McClenny v. Inverarity, 80 Kan. 569, 103 Pac. 82.) In abuse of process it is said the gist of the tort is not commencing an action or causing process to issue without justification, but misusing or misapplying process, justified in itself, for an end other than that which it was designed to accomplish. (Prosser on Torts, 892).” (p. 63.) In the case at bar process was neither issued without justification nor misused to accomplish an end for which it was not designed to accomphsh. The trial court properly sustained plaintifFs motion for summary judgment on Margaret’s counterclaim. The judgment of the trial court is modified insofar as the six percent real estate sales commission which Howard agreed to pay to plaintiff is given priority over the judgment lien of Margaret, in all other respects the judgment is affirmed.	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The opinion of the court was delivered by Prager, J.: This is an action brought by a stockholder of a Kansas telephone association to recover damages from six other stockholders for the alleged breach of a first-option stock purchase agreement. The trial court sustained a motion for summary judgment filed by the appellees which was based upon certain admissions and answers to interrogatories made by appellant and the sworn testimony of the appellant in a collateral action involving the same subject matter. The issue presented to this court is whether or not the trial court erred in granting summary judgment to the appellees. The factual situation which brought about this litigation is not greatly in dispute and is essentially as follows: The appellant, Earl Thompson and the appellees, B. R. Anderson, D. Monroe Cobb, Walter N. Murphy, John F. Reece, Glenn G. Taylor and D. W. Strube, were the principal stockholders o£ the Reno Telephone Association, Inc. which operated a local telephone system in the general area of Hutchinson, Kansas. On February 15, 1961, the articles of incorporation of Reno Telephone were amended to provide as follows: “No stockholder shall sell his stock or any part thereof to any person not already a stockholder in the corporation unless the proposed seller shall first give to the corporation or other stockholders of the corporation an opportunity to purchase same.” The amendment also contained provisions as to the manner in which the purchase price per share should be determined and a procedure for giving notice of a stockholders intention to sell. An identical provision was placed in the bylaws of the corporation. There is nothing in the record to indicate that this first-option provision was brought into play prior to 1966. In the fall of 1966 a number of larger telephone companies became interested in purchasing the telephone system of Reno. The stockholders were obviously concerned that some of them might sell their stocks to outside interests thereby interrupting the continuity of management with detrimental results to the interests of the stockholders and the community. On December 10, 1966, the appellant and the six appellees entered into a stock agreement which provided in substance that in the event any of the parties to the agreement desired to sell his stock and received a bona fide offer for the sale of his stock, he would be obligated to first offer the same to the other parties for the same price and upon the same terms as contained in the bona fide offer received. Since this stock agreement is the contract upon which appellant’s cause of action is based it would be helpful to set it out in full: “STOCK AGREEMENT This Agreement made and entered into this 10th day of December, 1966, by and between the parties signatory hereto, each of whom is the owner of shares of Reno Telephone Association, Inc., located in Hutchinson, Kansas. “WITNESSETH: “Whereas, the parties signatory hereto, own a substantial portion of the shares of Reno Telephone Association, Inc., and they believe it to be for the best interests of the Corporation and for themselves as stockholders, and for all of the stockholders in the community in which the said Corporation is located, that some effort be made to preserve and perpetuate the continuity of management and to preclude the possibility that outside interests might acquire a substantial amount of stock of said Corporation and thereby ac quire control of the Corporation through the acquisition of stock, all of which might' be detrimental and harmful to the best interest of the Corporation and the stockholders and the community, the undersigned stockholders, in consideration of the mutual covenants and agreements hereinafter set forth, do hereby mutually promise and agree, each for himself and each for the others who are parties hereto, as follows: “1. The parties first agree that each of them own stock in the Corporation as follows: “B. R. Anderson 99 shares of stock “D. Monroe Cobb 135 shares of stock “Walter N. Murphy 106 shares of stock “John F. Reece 76 shares of stock “Glenn G. Taylor 108 shares of stock “Earl Thompson 137 shares of stock “D. W. Strube 56 shares of stock “2. In the event any of the parties signatory hereto, desires to sell or otherwise dispose of his stock in the Reno Telephone Association, Inc., or any part thereof, and shall have received a bona fide offer for the purchase of said stock, he shall first offer the same for sale to the other parties signatory hereto, on a proportionate basis among the other parties, at the same price and upon the same terms for which said bona fide offer has been received. This option so granted to the others shall expire at the end of 90 days written notice from such stockholder to the other parties hereto. If at the end of said 90 day option period, a party signifies in writing to such offering stockholder, that they do not wish to purchase any of said stock upon such basis, then the remaining stockholders who do desire to purchase said stocl have a further option of 15 days from the end of the initial 90 day period to take among themselves on an agreed proportionate basis such stock that is not taken in the initial 90 day period. That at the end of the initial 90 day period and the additional period of 15 days, after it is determined the amount that each of the other parties hereto wish to take of the stock of the offering stockholder, then the purchase and sale thereof shall be promptly completed, with the selling stockholder transferring such shares among the other parties hereto in accordance with this agreement and payment being made forthwith. “3. As to any stock not so purchased in accordance with this agreement and which still remains under the ownership of the offering stockholder after the end of the 105 day period as above outlined, then such stockholder may sell such stock upon the same terms to anyone else that he may wish, all subject, of course, to the restrictions of the Articles of Incorporation and any Amendments thereto of the Corporation and Bylaws thereto, except such sale to any outsider, shall not be on any more favorable terms than is being made by such offering stockholder to the parties hereto. “4. There is one exception to the foregoing in that any of the parties signatory hereto, may sell or dispose of the stock owned by him to any other parties signatory hereto upon any terms and conditions and for any price which may be agreed upon between the party desiring to sell and the party offering to buy. “5. The option granted herein and restriction upon the sale of the stock of the parties hereto, shall apply equally to transfer of stock by gift, bankruptcy, receivership, foreclosure of lien, or in any manner except bequest or inheritance. This agreement shall survive the death of any of the parties signatory hereto, and the heirs, legatees, and personal representatives, or successor in interest of any Corporate or Fiduciary stockholder of such deceased stockholder shall be bound by all of the terms, conditions, and restrictions of this agreement as herein set out. “6. The parties hereto further agree that a copy of this agreement shall be served upon and deposited with the President, the Secretary, and the Transfer Agent, if any, of Reno Telephone Association, Inc., as located at Hutchinson, Kansas. “In Witness Whereof, the parties have hereunto set their hands this 10th day of December, 1966. D. Monroe Cobb “/s/ B. R. Anderson /s/ D. Monroe Cobb B. R. Anderson John F. Reece “/s/ Walter N. Murphy /s/ John F. Reece Walter N. Murphy Earl Thompson “/s/ Glenn G. Taylor /s/ Earl Thompson Glenn G. Taylor “/s/ D. W. Strube D. W. Strube” We will refer to this agreement as the “first-option agreement.’ The two principal companies which were interested in the purchase of Reno Telephone were Continental Telephone Corporation which will be referred to as “Continental” and Trans-Continental Telephone and Electronics, Inc. which will be referred to as “Transcontinental.” During the period from approximately March 1 to April 20, 1967, several offers for the purchase of Reno Telephone stock were made by both Continental and Trans-Continental in an effort to secure control of Reno Telephone. The appellant Thompson supported the efforts of Trans-Continental to purchase the outstanding stock of Reno Telephone. The testimony of appellant discloses that during the period from March 1 to March 10, 1967, he personally assisted the agents of Trans-Continental in buying shares of stock from ten other stockholders contrary to the first-option provisions of the articles of incorporation and bylaws of Reno Telephone mentioned heretofore. The appellees were not certain as to what they should do. On about April 13, 1967, the agents of Continental came forward with an offer to purchase the stock of Reno Telephone at a purchase price of $585 per share. It is not clear from the record whether the offer of Continental at this price was a firm offer without conditions or restrictions or whether the offer was conditional upon the signing of written option agreements to be signed by each stockholder. The appellees who were members of the board of directors of Reno Telephone decided to have a meeting to decide what should be done. This meeting was to have taken place on April 14, 1967. When Thompson heard about the proposed meeting of appellees he and Trans-Continental filed an action on April 13, 1967, in the district court of Reno County for an injunction to enjoin the meeting. On the day the action was filed the district court issued a restraining order enjoining the appellees from holding the meeting. The injunction suit apparently had the effect of crystallizing the thinking of appellees and they decided to accept the proposition made by Continental. Between April 14 and April 17, 1967, each one of the appellees signed an option agreement with Continental for the purchase of his stock at a price of $585 per share. Six separate option agreements were prepared and signed by each of the appellees and by an agent of Continental. The option agreement executed by Walter N. Murphy is typical of all and is as follows: “Option Agreement “This Agreement made and entered into this 17 day of April, 1967, by and between Continental Telephone Corporation, a Delaware Corporation hereinafter called “Continental,” and the undersigned stockholder of the Reno Telephone Association, Inc., a Kansas Corporation, hereinafter called “Reno”, such stockholder being hereinafter called “Transferor”. “Now Therefore, in consideration of the sum of One Dollar and other good and valuable consideration paid by Continental, the receipt and adequacy of which is hereby acknowledged, it is agreed as follows: “1. Option. Transferor hereby grants to Continental the option to purchase the following described shares of Common Stock of Reno, on the terms hereinafter set forth, such Stock being described as follows: “(a) 106 shares of Class “A”, voting Common Stock of Reno. “(b) 46 shares of Class “B”, non-voting Common Stock of Reno. “2. Purchase Price. The purchase price payable for such shares of stock, either Class “A” or Class “B”, shall be $585 in cash to be paid by Continental to Transferor upon delivery of such shares, it being understood that delivery and payment therefore is conditioned and subject to the By-Laws and the Articles of Incorporation as is now existing and as may be amended, and any other legal agreement, presently in force. (Emphasis supplied.) “3. Exercise of Option. This option to purchase shall be exercisable by Continental on or before 120 days from the date hereof, by notice in writing by Registered Mail to Transferor at his or tiheir address which is: Box 946 Hutchinson, Kansas and that the closing of this transaction in case the option is exercised shall be as contained in a letter from Continental to Transferor. “4. Representations. Transferor represents that he or they are the sole owners, either individually or jointly of the above described stock and has the right to sell all of the above described stock to Continental, subject to Paragraph 2. “In Witness Whereof, this instrument is executed this 17 day of April, 1967. “Transferor “/s/ Walter N. Murphy “Continental Telephone Corporation “By /s/ Vernon R. Chesbro “Duly authorized agent of the Corporation.” The appellant Thompson in his answers to appellees’ interrogatories stated that after Continental made its offer to purchase the stock at $585 per share, he took up the matter with the management of Trans-Continental who gave to appellant a commitment that it would back him financially in the purchase of all of the stock belonging to the appellees at a price of $585 per share with the express understanding that appellant would sell to Trans-Continental all of that stock in addition to his own in exchange for 17,208 shares of Trans-Continental stock. If Thompson could have completed this deal by purchasing all of appellees stock at $585 per share, he could have exchanged such stock to Trans-Continental for shares of its stock with a resulting tidy profit to appellant in the amount of $114,003. The exact date this commitment was obtained from Trans-Continental does not appear but it was sometime around April 17, 1967. On May 22, 1967, the injunction suit came on for hearing. In that action appellant amended his petition alleging that the option agreements signed by each of the appellees and Continental were null and void and unenforceable. Appellant also attacked the validity of the first-option provisions of the articles of incorporation and by-laws of Reno Telephone. It was at this hearing in the injunction suit that appellant testified about his previous activity in assisting Trans-Continental in the purchase of stock from the ten minority stockholders of Reno Telephone. At this point the parties were at loggerheads and were involved in what appeared to be interminable litigation. Thereafter the representatives of Continental and Trans-Continental got together on a merger plan by which Trans-Continental would be merged into .Continental. As a result of the merger Continental never exercised its options to purchase appellees’ shares within the period of the options. It is clear that appellant never made a demand on appellees to purchase their stock at a price of $585 per share prior to the filing of the instant case. On July 24, 1967, appellant dismissed his injunction suit against the appellees. On August 12, 1967, all of the stockholders of Reno Telephone, including appellant and all of the appellees, held a stockholders meeting and voted a reorganization plan whereby each stockholder would exchange his Reno stock for shares of Continental stock. Appellant participated in the meeting and voted in favor of the reorganization plan along with the other stockholders. In December 1967 each of the Reno stockholders including the appellant exchanged his Reno stock for the Continental shares pursuant to the plan previously adopted. Apparently the loss of the contemplated profit of $114,003, which appellant would have made had his deal with Trans-Continental been consummated, began preying on his mind. On February 5, 1968, appellant filed the present action against the appellees seeking damages for breach of the first-option agreement of December 10, 1966. Appellant’s petition also included a second cause of action for damages for a conspiracy among the appellees to deprive appellant of his rights under the first-option agreement. On September 2, 1969, the appellees filed a motion for summary judgment. On October 27, 1970, the appellees’ motion for summary judgment was sustained and summary judgment was entered in favor of the appellees. The trial court made no findings of fact or conclusions of law and gave no reasons for its decision. The appellant brought a timely appeal to this court. In their motion for summary judgment appellees contended that there were no remaining genuine issues of fact, that the petition did not state a cause of action against appellees from which relief could be granted, and further that appellant had assumed inconsistent positions in his course of dealings and that by reason thereof appellees were entitled to judgment as a matter of law. On this appeal the appellant contends that the trial corut was in error in sustaining appellees’ motion for summary judgment for the following reasons: (1) On the record, there exists a genuine disputed issue of the following material facts: (a) Whether or not about April 17, 1967, the appellees, or any of them, desired to sell or otherwise dispose of their stock in Reno Telephone, or any part thereof, and received a bona fide offer for the purchase of said stock. (b) Whether the appellant was ready, willing and able to purchase on or about April 17, 1967, all or any part of the Reno Telephone common stock which was owned by the appellees. (c) Whether appellees, or any two or more of them, conspired together and with each other and with third parties in connection with receiving and considering offers from third parties for the purchase of all or any part of their common stock in Reno Telephone in an unlawful manner to the damage of appellant. (2) Considering the facts in the record and the issues framed by the pleadings in the light most favorable to the appellant, appellant is entitled to judgment on both causes of action. (3) At the time judgment was entered, appellant had not had an opportunity to complete his pretrial discovery procedure. (4) The position assumed by appellant in Reno County District Court Case No. 15847 (the injunction action) does not serve as a bar or as an estoppel to appellant’s causes of action in the case at bar. (5) The pleadings, answers to interrogatories and admissions on file do not show that appellees are entitled to judgment as a matter of law. The appellees take the position on this appeal that there are no genuine disputed issues of fact since the answers to interrogatories and admissions made by the appellant and the sworn testimony of appellant in the injunction action disclose sufficient facts for a determination of the motion for summary judgment. They further contend that the option agreements signed by each of the appellees did not constitute bona fide offers to purchase the Reno stock since they were subject to the restrictions on sale in the articles of incorporation and bylaws of Reno Telephone and “any other legal agreement, presently in force” and subject to an exercise of the options by Continental. Appellees further contend that the undisputed facts disclose that at no time did the appellees sell their stock to anybody until after the stockholders meeting on August 12, 1967, at which time the appellant himself approved the exchange of stock with Continental. Appellees further argue that the appellant himself breached the December 10, 1966, agreement by assisting Trans-Continental in purchasing stock from other stockholders in violation of the expressed intent of the first-option agreement and further that by reason of the appellant’s conduct with respect to the entire transaction he has waived the right to enforce the first-option agreement and therefore is estopped to enforce it against the appellees. We shall first determine the contention of appellant that summary judgment was granted prematurely on the grounds that there were unresolved disputed issues of fact and since appellant had not had an opportunity to complete his pretrial discovery procedures. We have held that before summary judgment may be granted under K. S. A. 60-256 (c) the record must show that there remains no genuine issue as to a material fact; that when ruling on a motion for summary judgment, the district court must resolve against the movant when any doubt exists whether there remains a genuine issue of material fact, and that the evidentiary material presented by the party opposing the motion must be taken as true, and such party given the benefit of all reasonable inferences from such evidence. (Weber v. Southwestern Bell Telephone Co., 209 Kan. 273, 497 P. 2d 118.) The most common problem in cases of summary judgment is in determining whether or not there really is a genuine issue as to any material fact. We have stated that an issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. (Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976.) In the case at bar we have no hesitancy in holding that the undisputed facts provided by the appellant by his own admissions and answers to interrogatories and by his testimony under oath in the injunction proceeding established a sufficient undisputed evidentiary record upon which summary judgment was properly granted to the appellees in the case at bar. This is true as to at least one defense raised by the appellees, that defense being waiver or estoppel of the appellant arising by his course of conduct with reference to the transactions out of which this lawsuit arose. We have recognized the general rule that reasonable restrictions upon a stockholder’s right to transfer his corporate stock may be imposed by the articles of incorporation or by the agreement of the stockholders themselves. (Browning v. LeFevre, 191 Kan. 397, 381 P. 2d 524.) The purpose of a first-option provision is to prevent or discourage a sale of stock to outsiders so as to preserve the continuity of management. Such provisions, however, are generally regarded with disfavor and are strictly construed. Where a first-option agreement exists, compliance with such agreement may be waived by acquiescence in a transfer of the particular stock, by failure to exercise the option within due time or by prior dealings or a course of conduct on the part of the stockholder seeking to enforce the agreement directly inconsistent with a position subsequently taken. (18 Am. Jur. 2d, Corporations, § 393.) For a case with a factual situation similar to the case at bar we note Browning v. LeFevre, supra. Browning was a first-option case involving corporate stock. The appellant Rrowning disregarded the first-option provision of the articles of incorporation by his attempt to buy stocks for nonstockholders with whom he was working to acquire control of the company. It was held that Rrowning by his prior dealings and conduct directly inconsistent with his position subsequently taken precluded him from enforcing the first-option provision in a subsequent action against other stockholders based upon a violation of the provision. This court held that the doctrine of equitable estoppel requires consistency of conduct, and a litigant is estopped and precluded from maintaining an attitude with reference to a transaction wholly inconsistent with previous acts and business connection with such transaction. In Elliott, et al. v. Lindquist, et al., 356 Pa. 385, 52 A. 2d 180, 169 A. L. R. 1869, a group of stockholders sought to impose a constructive trust upon stock transferred to nonstockholders in violation of a first-option provision. The court refused to enforce the provision because the stockholders had disregarded it in the past, stating as follows: “. . . contracting parties cannot ignore their own contractual covenants with impunity and still seek to hold the others to the contract, . . . Parties to a written contract may abandon, modify or change it by words or by conduct: (p. 388.) “The evidence, . . . supports the learned chancellor’s findings and conclusions to the effect that the stockholders who are now complaining had no equity that would support the decree prayed for.” (p. 391.) In Bank v. Jesch, 99 Kan. 797, 799, 163 Pac. 150, we stated: “ ‘Whether the principle is described as equitable estoppel, quasi-estoppel, waiver, ratification, election, or as a requirement of consistency in conduct, is not very important.’ (Powers v. Scharling, 76 Kan. 855, 859, 92 Pac. 1099.) ‘The doctrine of equitable estoppel is frequently applied to transactions in which it is found that it would be unconscionable to permit a person to maintain a position inconsistent with one in which he has acquiesced.’ (10 R.C.L. 694.)” (p. 799.) To the same effect are Lillard v. Johnson County, 102 Kan. 822, 825, 172 Pac. 518, and Antrim v. International Life Ins. Co., 128 Kan. 65, 275 Pac. 1084. When we turn to the undisputed facts in the case at bar we find the following actions on the part of the appellant which constitute a course of conduct creating a waiver of his right to enforce the first-option agreement and which estop him from relying upon it as against the appellees. (1) From March 1 to March 10, 1967, the appellant admittedly assisted Trans-Continental in buying shares from ten Reno stockholders in clear violation of the first-option provision of the articles of incorporation and bylaws of Reno Telephone and in violation of the expressed intention of the parties as stated in their agreement of December 10, 1966. (2) By his own admission the appellant wanted to buy the appellees’ Reno stock, not to preserve present management or keep out outside interests, but for the avowed purpose of reselling the stock to Trans-Continental in violation of the intent of the agreement of December 10, 1966. (3) In the injunction suit filed by the appellant and Transcontinental against the appellees, the appellant took the position that the first-option provisions of the articles of incorporation and bylaws of Reno Telephone were unenforceable and further he contended that all stockholders had a right to sell their Reno stock without regard to such first-option provisions. (4) At no time prior to the filing of the case at bar did the appellant make any attempt to invoke the first-option agreement of December 10, 1966, and never made a demand on the appellees for the purchase of their stock thereunder. (5) On August 12, 1967, at a meeting of Reno stockholders the appellant voted in favor of the reorganization plan whereby all stockholders were to exchange their Reno stock for Continental stock. Appellant at no time objected in any way to this proposed action although it involved the identical stock which is the subject of litigation in the instant case. (6) On December 28, 1967, the appellant actually exchanged all of his Reno stock for Continental stock with knowledge that appellees were doing the same and he at no time protested such action. In permitting appellees’ stocks to be transferred to Continental without objecting, appellant necessarily waived any preferential rights which he may have had to purchase it under the stock agreement of December 10, 1966. (Bartlett v. Fourton, 115 La. 26, 38 So. 882.) Under these undisputed facts the appellant cannot now change his position and attempt to enforce the first-option agreement. The appellant by his conduct has waived any rights he may have had under the first-option agreement and he is estopped to assert it against the appellees. Our conclusion therefore is that the action of the trial court in granting summary judgment against the appellant is fully supported by the record on the basis of waiver or estoppel. This renders it unnecessary to decide the other questions raised by the appellant. For the reasons set forth above the judgment of the trial court granting summary judgment in favor of the appellees is affirmed. Fontron, J., not participating.	[ 112, 124, -80, 15, 8, 96, 42, -126, 122, -32, -89, 83, -55, -62, -123, 123, 87, 13, -48, 106, -106, -109, 71, 42, -33, -101, -103, -51, -77, 95, -92, -10, -51, 32, -54, 87, -14, -62, -51, -100, -98, 4, -101, 125, -3, 4, 48, 127, 48, 75, 81, -68, -13, 40, 28, -54, 105, 46, -17, 96, -64, -71, -85, -115, 125, 22, 3, 36, -104, 101, -48, 14, 88, 49, 40, -88, 90, 38, 6, 116, 41, -23, 12, 98, 99, 1, 53, -31, -8, -100, 46, -43, -115, -26, -80, 72, 0, 97, -65, -99, -86, 20, 3, -2, -2, 20, 95, -4, 21, -114, -10, -77, -49, 126, -98, 11, -21, 51, -78, 112, -53, -96, 92, 87, 122, 18, -114, -44 ]
The opinion of the court was delivered by Harman, C.: Patrick Edward Larkin was convicted by a jury of the offenses of burglary (K. S. A. 1971 Supp. 21-3715) and theft of property of a value of more than fifty dollars (K. S. A. 1971 Supp. 21-3701). His motion for new trial was overruled, he was sentenced upon the verdicts rendered against him and he now appeals. The subject of the burglary was a business building in Kensington, Kansas, from which merchandise was stolen about 1:30 a. m. on July 8, 1970. The offenses allegedly were committed by appellant and three other men, two of whom, Ronnie Lynn Solida and Floyd Lesher, Jr., testified on behalf of the prosecution. One of these two witnesses had plead guilty to eleven criminal counts including those in question; the other had plead guilty to nine similar offenses in other counties. Rriefly stated, the evidence for the prosecution revealed the following: During the evening of July 7, 1970, appellant and one accomplice rented a trailer in Norton, Kansas. After driving around to different points for various purposes — including the loading into the trailer of other articles previously stolen — appellant and the three accomplices arrived in three different vehicles at the Midway Implement Company building in Kensington at about 1:30 a. m. One man, equipped with a walkie-talkie, remained outside as a look-out while appellant and the other two entered the building after forcing the front door. Appellant’s equipage likewise included a walkie-talkie. The three loaded the two garden tractors, a space heater, batteries and a lawn mower into the rented trailer and subsequently took them to Kansas City, Missouri, where they were sold and the proceeds divided among the participants. The cargo taken to Kansas City also included the fruits of other burglaries. Appellant and another made the sale. Further prosecution evidence will be related in considering appellant’s specifications of error. Appellant and the fourth alleged participant, Darrell Higby, testified that they left Stuttgart, Kansas, at about 9:00 p. m., July 7, 1970, in a vehicle pulling a trailer and arrived in Leavenworth, Kansas, at about 1:00 a. m. the following morning. Four other alibi witnesses called by appellant testified they saw him in Leavenworth between 1:00 and 2:00 o’clock on the morning of July 8th. Leavenworth is more than 225 miles distant from Kensington. Appellant first complains he was taken into custody by virtue of an arrest warrant issued upon a defective complaint and therefore the trial court erred in denying his motion for discharge. Assuming arguendo, that his arrest may have been illegal, he fails to point out resulting prejudice. We have frequently held that an illegal arrest and detention do not, standing alone, invalidate a subsequent conviction (State v. Addington, 205 Kan. 640, 472 P. 2d 225). Appellant challenges the sufficiency of the evidence to sustain his conviction. His primary thrust is that evidence of unauthorized entry and taking was lacking. He asserts there was no direct evidence produced by the state, as required, that the owner of the property did not consent to the entry and subsequent taking. Appellant’s reliance upon certain language used in State v. Aten, 203 Kan. 920, 457 P. 2d 89, is misplaced. There we said: “The want of consent of the owner to the taking of his property may be proved by circumstantial evidence when, without fault on the part of the state, direct testimony cannot be produced.” (p. 927.) One of the co-owners of the Midland Implement Company, as well as an employee, testified that at 7:30 a. m., July 8th, when the store was opened the tractors, batteries, space heater and lawn mower were missing. The articles had not been sold and were in the store when it was last closed. A subsequent search by an investigating officer failed to reveal them. According to the testimony of the two accomplice witnesses the four persons involved went to the implement company building with the intent to “burglarize” it; they applied a pipe wrench to the door knob on the front door of the building and broke the lock on the door to gain entry. The other evidence need not be repeated. Suffice it to say, all requisite elements of appellant’s guilt of the offenses of which he was convicted were amply shown. Appellant complains that, although requested to do so, the trial court failed to define the phrase “reasonable doubt” as used in its instruction to the jury. We cannot say the trial court erred in this omission. We have on occasion approved particular instructions defining the words “reasonable doubt”; however, it may well be questioned whether any definition is more illuminating than the phrase itself. The words are ordinary ones meant to be used in their popular or conventional sense and are understandable by a person of ordinary intelligence. Long ago, in State v. Bridges, 29 Kan. 138, this court stated: " ‘[lit has often been said by courts of the highest standing, that perhaps no definition or explanation can make any clearer what is meant by the phrase “reasonable doubt” than that which is imparted by the words themselves.’ ” (P- 141.) And in State v. Davis, 48 Kan. 1, 28 Pac. 1092, we find this: “It is to be presumed that the Jury understood what the words ‘reasonable doubt’ meant. The idea intended to be expressed by these words can scarcely be expressed so truly or so clearly by any other words in the English language.” (pp. 10-11.) See, also, 88 CJS, Trial, § 318; PIK 52.04, Criminal, p. 49. Appellant further complains of language used in other instructions given the jury respecting the presumption of innocence to be afforded one on trial, alibi testimony and the caution to be accorded to the testimony of an accomplice. We have examined the challenged instructions and find nothing in them approaching reversible error. Appellant makes some complaint with relation to two exhibits offered by him, the thrust of which is not entirely clear. The background is this: A prosecution witness testified that on the evening of July 7, 1970, he saw appellant in Norton measuring a U-Haul trailer; he fixed the date by the fact he had committed a burglary at Lucas, Kansas, in the early morning hours of the same day. Later in the trial, by way of defense, appellant produced in evidence a certified copy of the information charging the witness with the Lucas burglary, along with a certified copy of the journal entry of his conviction in the district court of Russell county, Kansas, of that offense. The information charged that the Lucas burglary was committed “on or about July 6, 1970.” The journal entry recited the witness had plead guilty to the offense charged in the information. Then by way of rebuttal in behalf of the prosecution the witness was permitted to testify that despite the language of the journal entry he had actually committed the burglary on July 7, 1970, but when he plead guilty he did not tell the judge the offense had occurred on the 7th rather than on the 6th of July. We find nothing of a prejudicial nature in any of the foregoing. Finally, appellant asserts evidence of another crime was wrongfully received. As abstrated in the record, the context of the challenged testimony, given by one of the accomplice witnesses respecting a tractor stolen at Seneca, Kansas, and taken to Denver, is not at all clear either as to the participants in the purported offense or its connection with those of present concern. There was no attempt to saddle appellant with the commission of the offense, the testimony was inefficacious for that purpose, the subject was immediately dropped when objection was made and we see no harmful impact upon appellant from the particular incident. We find nothing to warrant disturbing appellant’s convictions and the judgments are affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Fatzer, C. J.: This is an appeal from the judgment of the Sedgwick district court sustaining the decision of the Referee and the Kansas Employment Security Board of Review (Board), finding that Ernest L. Wesley (Wesley), a former employee of the Boeing Company (Boeing) did not leave work voluntarily without good cause attributable to his employment, and charging the unemployment compensation benefits against the account and experience of the appellant. The facts are not in dispute. The following is a summary of the facts as found by the Referee, adopted by the Board, and ruled conclusive by the district court. Wesley had been employed by Boeing for twelve years. His last job, of approximately two years duration, was classified as “First Parts Checker-Bench,” a grade 3 “skilled” position which paid $3.68 per hour. He was working on the second shift at the Boeing plant. On April 3,1968, Wesley s immediate supervisor advised him Boeing was going to reduce its work force at that job classification, and Wesley was laid off because of lack of work. Before the lay off took effect Wesley was offered employment on the second shift as a “Plastic Fabricator B,” a grade 7 “semi-skilled” position which paid $3.15 per hour, which he previously held for about ten years. Prior to actual termination, Wesley elected to refuse the job offered. Although the job offered was a reduction in rate of pay and classification, Wesley had prior experience and training at that job. He had previously worked as a “Plastic Fabricator B” before being advanced to “First Parts Checker-Bench.” As indicated, the record shows that Wesley was employed at a grade 3 “skilled” level on the company scale. Grades 1-5 are skilled, 6-8 are semi-skilled, and grades 9-10 are unskilled and the skill classification has a direct bearing on the compensation received by an employee working in the various grades. Because of the collective bargaining agreement that existed between Boeing and tibe Union, Wesley would have retained his former rate of pay and fringe benefits for a ninety-day period if he had accepted the job offered; however, if he accepted layoff, the rate retention would have been lost if he subsequently decided to work as “Plastic Fabricator B.” If he accepted the job offered, and later decided he did not like it, he could not then choose layoff from his former job. If he decided to quit, he would then be denied unemployment benefits for a period of seven weeks. There was no assurance that he would be retained at the lower classification and if he was laid off, he would receive unemployment compensation at a rate consistent with his new job. If he was recalled subsequently, he would be recalled at the new lower classification. Wesley would have had no seniority at the new job level and would have been paid all vacation time accrued and sick pay benefits consistent with the new classification. On April 11,1968, Wesley filed a claim for unemployment benefits and the Examiner allowed his claim. The Examiner’s decision also charged the account and experience of Boeing for all benefits paid to Wesley the current benefit year. On April 17, 1968, Boeing received notice that experience rating account would be charged for any benefits paid Wesley during the current benefit year on a finding that Wesley had been laid off due to lack of work. On April 22, 1968, Boeing timely appealed the determination of the Examiner. A hearing was then held before the Referee wherein both Boeing and Wesley gave testimony. On July 18, 1968, the Referee’s decision found that the claimant was laid off due to lack of work and that his refusal of the new position was with good cause, thereby finding Wesley eligible for the receipt of unemployment benefits and finding that Boeing’s experience rating account should be charged for benefits paid during the current benefit year. Boeing timely appealed the Referee’s decision to the Board. The Board then granted Boeing and Wesley the opportunity to present testimony. On January 8, 1969, the Board, with the record of the hearing before the Referee, together with the record of the hearing held before it, affirmed the findings of fact and decision of the Referee. The action was then commenced by Boeing pursuant to K. S. A. 44-709 (h) [since amended, now K. S. A. 1971 Supp. 44-709 (i)] seeking judicial review of the determination of the Board, charging the account and experience of Boeing pursuant to K. S. A. 44-710 (c) [since amended, now K. S. A. 1971 Supp. 44-710 (c)]. The district court sustained the determination of the Board, and Boeing now appeals from that judgment. The primary question presented this court for consideration is whether the evidence shows facts sufficient to support tire Board’s determination that Wesley was laid off due to lack of work. Second, and subsidiary to the primary question, is whether the evidence is sufficient to support the Board’s determination that Wesley’s refusal of the job offer was with good cause. The scope of review of administrative matters of this character is defined by statute. K. S. A. 44-709 (h) [since amended, supra], provides that the findings of the Board are conclusive upon this court if supported by evidence. (Pickman v. Weltmer, 191 Kan. 543, 382 P. 2d 298; Boeing Co. v. Kansas Employment Security Board of Review, 193 Kan. 287, 392 P. 2d 904; Zimmerman v. Board of Review of the Employment Security Division, 208 Kan. 68, 490 P. 2d 359.) In order to ascertain whether the evidence supports the Board’s conclusion Wesley was laid off due to lack of work, we have only to look at Boeing’s own personnel records to hold the Board did not err in determining that Wesley did not leave work “voluntarily without good cause attributable to his employment.” The Termination Re port, prepared by Boeing, indicates not once, but twice, that Wesley was “laid off.” That record contained sufficient boxes wherein it could be denoted that Wesley quit his employment, had that been the case. However, Boeing’s record indicates the reason for the layoff was that of “decreasing force.” Under the sub-heading of Termination of Service contained in the same document, it is stated that ‘Wesley has been caught in reduction of force and has chosen layoff. Wesley is an average employee and has tried to improve at all times,” and indicated he was eligible for rehire. That record further shows the reason for Wesley’s termination was that of “lay off.” Wesley’s testimony shows he was in fact laid off by Boeing on April 3, 1968, and Boeing’s testimony shows Wesley was advised by a supervisor that he was to be laid off. Finally, there is nothing in the record that even suggests Wesley would have to be reduced to a grade 7 semi-skilled job together with a reduction of 53 cents per hour in pay due to his inability to perform a grade 3 skilled job level. If Boeing seriously thought Wesley terminated his employment voluntarily, it most certainly would have indicated so in its Termination Report which provides a specific place to indicate “quit.” Under such circumstances, it would be difficult to conclude that Wesley voluntarily left employment, and it is therefore the opinion of this court that the Board properly charged the account and experience of Boeing for those benefits paid to Wesley. (K. S. A. 44-710 [c], since amended.) Ancillary to the foregoing, Boeing also argues that Wesley refused to accept “suitable work” within the meaning of K. S. A. 44-706 (c) [since amended, K. S. A. 1971 Supp. 44-706 (c), in a manner not material to this issue], K. S. A. 1971 Supp. 44-706 (c) pertains to a claimant’s eligibility for unemployment compensation and provides the factors or criteria for determining whether a claimant shall be disqualified for such benefits. It reads in pertinent part: “If he has failed, without good cause ... to accept suitable work when offered to him by ... an employer, such disqualification shall continue for the week in which such failure occurred and for the six (6) consecutive weeks which immediately follow such week. In determining whether or not any work is suitable for an individual, the commissioner shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and. prior earnings, his length of unemployment and prospects for securing local work in his customary occupation or work for -which he is reasonably fitted by training or experience, and the distance of the available work from his residence . . .” (Emphasis supplied.) The question o£ law presented is the interpretation of the statute just quoted under circumstances such as are presented in Wesley’s case. The memorandum opinion of the district court states both parties conceded in that court that as a general rule a claimant may be eligible for unemployment compensation benefits for a reasonable length of time while he seeks employment commensurate with his skills, training, ability and previous earning capacity. A similar concession was made by the parties in oral argument in this court. In the instant case, Wesley was working at employment which paid $3.68 per hour. Prior to the effectiveness of his layoff, he was offered a job paying $3.15 per hour at semi-skilled work. That entailed a reduction of some 14 percent in Wesley’s income, which was in excess of $1,000 per year. The Board was of the opinion the reduction in pay in Wesley’s earnings was substantial, and that he should have an opportunity to seek employment at a wage level similar to that which he was receiving before being offered the lower grade and lower paid work. As Wesley’s period of unemployment increased, it would of course necessitate he lower his expectations in the way of wages and job requirements. That was reflected in the Referee’s decision, and the Board states in its brief that it is a policy it follows. It might well be that had Wesley been unemployed for some period of time and a job offer such as the one made by Boeing arose and Wesley refused, he would be found to have refused an offer of suitable employment without good cause. However, in the instant case, the Board was of the opinion Wesley should have been granted a reasonable time in which to attempt to secure employment at his present skill and wage level. In concluding the Board did not err in its determination of the matter, the district court’s memorandum opinion states: “The net result of this interpretation of the law [Boeing’s contention] would mean that a workman who was laid off or his employment terminated for lack of work without an offer of alternate work by his employer, could draw unemployment benefits for a reasonable length of time while seeking employment commensurate with his job history, training, ability, and earning capacity, without disqualification of any benefits pursuant to the general rule; whereas, if the same employer, after notifying the same workman of his pending layoff or termination of his present employment offered that workman other work of a lesser grade, for less pay, and less commensurate with his ability and earning capacity, the workman would not be protected by the general rule allowing him a reasonable time to seek employment commensurate with his present employment, for the reason that he would never be ‘unemployed’ as that term is defined by statute, under such circumstances. “In such cases, the determination of ‘suitable work” would be made, as plaintiff has attempted to do here, by reference to plaintiff’s type of work, degree of skill required, and earning capacity at employment prior to his current employment, and as noted before without any consideration of the criteria ‘length of unemployment’ since he would never be unemployed. If the workman refused the alternate work offered, he would then be disqualified for six consecutive weeks of benefits, and the employer would not be charged for those six weeks. “If such were the law, an employer could cause a skilled workman to forfeit six weeks of compensation benefits and save himself from being charged therefor, unless such skilled workman accepted semi-skilled alternate employment commensurate to employment he had had previously, in the process of becoming skilled. “The Court concludes that the general rule of unemployment law that claimants are to be allowed a reasonable time to seek other employment applies to claimants such as Mr. Wesley presents under the facts and circumstances of the instant case as well as to those who are unemployed as that term is defined by statute . . .” The record clearly shows the Board considered all of the factors present in 44-706 (c) and concluded that Wesley did not have a reasonable time to seek employment consistent with his skill and training. Under such circumstances, Wesley could properly refuse the job offer and be permitted to draw unemployment compensation for a reasonable time while he was seeking work in his customary occupation. In fact, at the time Wesley was offered the job, he had not experienced any of the privations of unemployment. We are of the opinion the district court did not err in construing 44-706 (c) for the purpose of determining what is “suitable work,” and that Wesley was entitled to a reasonable period of time to seek work at his highest skill and rate of pay commensurate with his previous employment. The judgment is affirmed.	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The opinion of the court was delivered by Fromme, J.: This action was brought for specific performance of a written real estate purchase contract. After a trial to the court, judgment was entered in favor of all defendants. The plaintiff-seller, Dick J. Branstetter, appeals from the judgment in favor of the defendant-buyer, Norma Cox. No appeals were taken from the judgments in favor of the other defendants, so they are not interested in this appeal. The real estate purchase contract was on a printed form. The blanks were filled by writing in longhand. The contract which was in evidence has the blank for the name of the seller filled in with “Dick Branstetter, a single person”. The blank for the name of the buyer was filled with “Norma Cox”. Nothing concerning her marital status was shown. The description of the residence property, the consideration for the conveyance, the amount of the earnest money payment and all other blanks were filled in longhand. The signatures of Norma Cox and Dick J, Branstetter appear at the bottom of the contract. The defendant Norma Cox claimed in her answer there was no meeting of minds on the contract. She alleged that her signature was affixed with an understanding the contract would not take effect or be binding unless and until it was approved by her husband, Lee Cox; and that he never approved the same. The defendant’s position was sustained by the trial court on the basis of the evidence introduced. The plaintiff appeals and urges two points. Certain preliminary facts should be noted in order for us to consider these points. Christine Schulte, a saleswoman for Mae Wadley, a real estate broker, filled in the blanks of the real estate purchase contract. Norma Cox signed the contract in the presence of Christine Schulte. The seller, Dick J. Branstetter, was not present when this was done. Thereafter, Christine Schulte took the contract to Branstetter for his signature. Norma Cox was not present when Branstetter signed. The earnest money payment of $100 was in the form of a check signed by Norma Cox. The check was delivered to Christine Schulte at the time Norma Cox signed the contract. The check was drawn on the joint account of Lee or Norma Cox. Although the testimony of the parties is conflicting, Norma Cox testified generally as follows: She had previously purchased a house through the efforts of Christine Schulte. The title to that house was taken in joint tenancy with her husband. Thereafter Christine Schulte called her about purchasing another house at 2731 Maple Street in Wichita. A friend, Mrs. Lowry, was with her at the time. They met Christine Schulte at the Maple Street address and inspected the house. Mrs. Cox advised Mrs. Schulte they would not be interested in the house unless her husband looked at it. Her husband might approve the purchase if the lot was big enough to put a second house on it. Mrs. Schulte asked Mrs. Cox to call her husband and have him come to the address. Mrs. Cox advised Mrs. Schulte she could not do this because her husband was busy at that time. Mrs. Schulte then asked if she might go to the husband’s office and get his approval on the contract. While the women were sitting in the car Mrs. Schulte filled in the bottom part of the contract leaving the names of the seller and buyer in blank. Mrs. Cox asked Mrs. Schulte about these blanks and Mrs. Schulte stated she would fill them in when she got back to the office. Mrs. Cox testified the earnest money payment requested on the $6,500 contract was $500 but that she refused to make a check for more than $100 and so advised Mrs. Schulte. She did not think her husband would consider buying this house. Later that evening Christine Schulte called her by telephone. Her husband was there at that time. She advised Mrs. Schulte her husband was not interested and would not sign the contract. The husband, Lee Cox, testified that the contract on the Maple Street property was never presented to him for his signature. He was not interested in the property. He was present with his wife in their home when Mrs. Schulte called on the telephone. This was the evening of the day the house was shown to his wife. He heard his wife advise Mrs. Schulte he would not sign the contract. The following morning Mrs. Schulte called him at his office about buying the Maple Street property. He advised her he was not interested. Mrs. Lowry, the friend of Mrs. Cox, testified that she accompanied Mrs. Cox when she looked over the property on Maple Street. Mrs. Lowry overheard the conversation between Mrs. Cox and Mrs. Schulte. Mrs. Cox told Mrs. Schulte she would have to get her husband’s approval on the house. He would have to look at the house and sign the contract. Mrs. Lowry further testified that Mrs. Schulte then asked if she could go get Mr. Cox and have him look at it. Thereafter the paper, which Mrs. Lowry understood to be a contract, was signed while all three of them were sitting in the car. Plaintiff’s first point of contention on appeal is that the oral testimony of Mr. and Mrs. Cox and of Mrs. Lowry was an attempt to alter the terms of the written agreement in violation of the parol evidence rule. The parol evidence rule as expressed in Thurman v. Trim, 206 Kan. 118, 477 P. 2d 579, is as follows: “When a contract is complete, unambiguous and free of uncertainty, parol evidence of a prior or contemporaneous agreement or understanding, tending to vary or substitute a new and different contract for the one evidenced by the writing is inadmissible.” (Syl. ¶ 2.) Similar statements of this well recognized rule may be found in Prophet v. Builders, Inc., 204 Kan. 268, 462 P. 2d 122; Lawence v. Sloan, 201 Kan. 270, 440 P. 2d 626; and Oaks v. Hill, 182 Kan. 501, 322 P. 2d 814. The prohibition against oral testimony in such case is applied to exclude testimony offered to vary the terms of the written contract. As more specifically pinpointed in Prophet v. Builders, Inc., supra, it was said: “When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing where such written contract is free from ambiguity and neither fraud nor mistake is asserted.” (Syl. If 2.) Where as here the original parties are the ones concerned and the evidence is offered not to vary the specific terms of the contract but to prove the parties did not assent to it as a complete and accurate integration of a contract the evidence is clearly admissible. In the early case of Bartholomew v. Fell, 92 Kan. 64, 139 Pac. 1016, this distinction was recognized and the court held: “Between the original parties to a written instrument the rule excluding parol evdence in contradiction of a written agreement is not infringed by proof that the instrument was never delivered, or was delivered to take effect only upon the happening of some future event.” (Syl. ¶ 3.) The rule as to admissibility was further delineated in Rice v. Rice, 101 Kan. 20, 165 Pac. 799, which holds: “Although the terms of a written obligation, assumed to be valid, can not be varied by parol, it may be shown by parol what caused the party thus to obligate himself, and thereby test the question whether he is legally bound, as the writing imports, or whether he is by any cause wholly or partially freed from liability thereon.” (Syl. f 1.) In White v. White, 183 Kan. 162, 326 P. 2d 306, the litigants were concerned with a written partnership agreement. The appellant claimed error in the admission of oral evidence to vary the terms of such agreement. On appeal this court said: “. . . The trouble with all arguments advanced by appellant on this point is that the rule which prohibits the introduction of parol evidence to vary a written instrument has no application where the legal existence or binding force of the instrument is in question.” (p. 167.) Such evidence has been held admissible in Greenleaf State Bank v. Monteith, 173 Kan. 799, 802, 252 P. 2d 621; Emery v. Graber, 176 Kan. 17, 22, 268 P. 2d 950; George v. Kohlasch, 179 Kan. 337, 339, 295 P. 2d 655; and many other cases appearing in our reports. In Malir v. Maixner, 174 Kan. 26, 254 P. 2d 282, a contract for the sale of land was executed and a $2,000 down payment was made. The defendant seller, who owned only a partial interest, defended an action for specific performance by claiming she signed and delivered the contract upon condition the other owners would join in a conveyance. The plaintiff objected to parol evidence as tending to vary or alter the terms of the contract. The defendant contended the oral testimony was admissible to show by the circum stances of its delivery the contract was not effective until the other owners joined in the conveyance. This court said: “The evidence was admissible for the purpose for which it was offered, namely, to show the circumstances of the alleged conditional delivery of the contract. In no way did it vary, alter or change the terms of the contract as written. It merely went to the point that the contract was not to be considered as a delivered present contract until the other parties in interest joined in a deed to the property. . . .” (p.28,29.) To obtain specific performance it must first be proven the contract is a completed and effective contract. Evidence that the writing was not to take effect until and unless another person joined in the contract does not contradict or vary the terms of the contract. Such evidence is introduced to show the contract was not effective or binding because of a failure to comply with the terms of a conditional delivery. The evidence in our present case was clearly admissible under the foregoing cases to show a conditional delivery of the contract. There remains the question whether defendant’s evidence is sufficient to support the findings and judgment of the trial court. Findings of fact supported by substantial competent evidence will not be disturbed on appellate review, even though the record discloses some evidence which might have warranted the trial court in making findings to the contrary. (Gault v. Board of County Commissioners, 208 Kan. 578, Syl. ¶ 1, 493 P. 2d 238.) We have previously summarized defendant’s testimony. It is corroborated by testimony of the husband and of Mrs. Lowry. It is sufficient to1 support the findings and judgment of the trial court. We find no error in the record and the judgment of the district court is affirmed.	[ 113, -8, -48, -19, 10, -32, 56, -104, -38, -92, -90, 95, -17, -64, 24, 109, -25, 109, 116, 106, -41, -78, 47, 34, -46, -77, -15, -47, -68, -49, -12, 23, 76, 48, -62, -105, -30, -126, -60, 24, 14, -123, -103, 68, -37, -48, 48, 43, 80, 73, 33, -50, -13, 45, 21, 79, 109, 46, -17, 57, -32, -8, -102, -105, 123, 23, -110, 53, -100, 3, -40, 14, -104, 49, 0, -24, 87, 54, -42, 116, 75, 11, -120, 38, 98, 32, -43, -19, -8, -104, 15, 117, -99, -90, 51, 88, 3, 97, -66, -97, 124, 80, 44, 124, -30, -35, 29, -28, 11, -82, -106, -109, 15, 126, -110, 11, -26, -61, 21, 81, -49, 48, 92, 118, 51, -109, -114, -72 ]
The opinion of the court was delivered by Brewer, J.: This was an action in the district court to quiet title. The case is before us on the pleadings, findings, and judgment. None of the testimony is preserved. Those findings are, 1st, a patent to H. P. Throop; 2d, “that on the 24th of November 1860 the said Throop duly conveyed the said described land, by deed duly executed and delivered, to the said plaintiff;” 3d, record of said deed on March 5th 1861; 4th, that on the 29th of November 1860 the said Throop for valuable consideration duly assigned said patent to said Clark Coon, the plaintiff; 5th, that on the 8th of November 1860 the said Throop for valuable consideration duly executed and delivered a deed for the land in controversy to Bettie Browning, the defendant in this action; 6th, record of said deed January 28,1861; 7th, that at the time said plaintiff received his said deed from said Throop he was an innocent purchaser ■of said land, and had no notice either actual or constructive of the previous conveyance to said defendant; 8th, constructive notice to plaintiff, at the date of the record of his deed, of the prior deed; 9th, no notice actual or constructive to defendant at time of record of her deed of plaintiff’s deeds. Judgment on these findings was entered for the defendant, and of this plaintiff complains. Defendant, holding the prior deed, would, but for the registry acts, have the better title. Of this there can be no question, because at the time of conveyance to plaintiff, Throop, the patentee, held no title, for he had previously conveyed to defendant. But plaintiff claims priority by virtue of § 13, ch. 30, Laws 1859, p. 290, (Comp. Laws 1862, p. 355,) which is as follows: “No instrument affecting real estate is of any validity against subsequent purchasers for a valuable consideration without notice, unless recorded,” etc. The deed to defendant was not recorded until .■after the execution of the deed to plaintiff, but still we do not see how this section helps the plaintiff. It is only “ subsequent purchasers, for a valuable consideration,” who can claim any advantage of it. Plaintiff was not a purchaser for ■a valuable consideration. (See finding No. 2.) True, the fourth finding shows that five days after obtaining his deed the patent was for a valuable consideration assigned to him. •But the assignment of a patent after the execution of a deed passes nothing. The deed transfers the land. Buying up title papers is not purchasing the land. Without a deed the assignment of the patent would not operate to transfer the title, though it might be evidence of a contract by which a deed could be enforced. More than this; for anything in the findings to the contrary, at the time he first paid value, that is, at the time he took the assignment of the patent, he may have had actual notice of defendant’s deed. Finding No. 7 simply shows want of notice at the time of plaintiff’s deed, five days before the assignment of the patent. We see no error in the judgment, and therefore it must be affirmed. All the Justices concurring.	[ -14, 122, -43, 63, -118, 96, 42, -104, 97, -95, -89, 83, -21, -53, 17, 33, -29, 41, -47, 107, 84, -77, 23, -85, -41, -13, -38, 77, -79, 72, 101, 87, 76, 32, -62, 117, 102, -48, -43, 24, -114, -124, -119, 69, -47, 96, 48, 59, 70, 75, 21, -54, -9, 46, 29, -62, 105, 45, -21, 61, 112, -8, -69, -107, 61, 2, -78, 101, -104, 67, -56, 8, -110, 49, 9, -24, 123, -74, -122, 84, 105, -119, 40, 38, 103, 32, 53, 107, -24, -104, 15, 118, 5, 39, 82, 72, 3, 41, -66, -99, 119, 16, 38, -2, -30, -123, 28, 108, 7, -113, -44, -109, 7, 106, -118, 3, -21, 3, 48, 97, -51, -30, 93, 65, 59, -101, -113, -66 ]
The opinion of the court was delivered by . Valentine, J.: Elliott sued Davenport in a justice’s court on a negotiable promissory note given by Davenport to one Barnett, and indorsed by Barnett to Elliott. Both Elliott and Davenport filed their bills of particulars in the justice’s court. Elliott obtained judgment in that court, and Davenport appealed to the district court. The district court permitted Elliott to file a reply to Davenport’s bill of particulars, over Davenport’s objections and exceptions. This was certainly not such an error, if error at all, as will require a reversal of the judgment of the district court. It is not shown that the court below abused its discretion, or erred to the prejudice of the defendant below. If the reply was necessary, then the court had the undoubted right to allow it to be filed upon such terms as were just. But if it was not necessary, then no injury was done, and no substantial error was committed. The case was tried in the district court by a jury, the main issue in the case being, whether Elliott was a bona fide owner and holder of the note. This issue was principally a question of fact; and so far as it was a question of fact it was found by the jurjr in favor of Elliott, and against Davenport. The law was correctly stated by the court. Or indeed if the court erred at all it was in favor of Davenport. The charge of the court was corréct unless it was too favorable to Davenport. Therefore, unless the verdict is not sustained by sufficient evidence, or is contrary to law, the verdict must stand, and the judgment of the court below founded thereon must be affirmed. There was evidence tending to show that Elliott resided on Barnett’s farm, in Kansas; that Elliott made improvements thereon, and looked to Barnett for compensation therefor; that Elliott and Barnett had an unsettled account between them; that Barnett resided in Illinois; that before the note became due Elliott wrote a letter to Barnett proposing to purchase the note, and pay therefor the amount of the note and the interest thereon; that Barnett, in answer to said letter, inclosed said note, properly indorsed by himself, in a letter to Elliott, and sent it and the letter to Elliott, merely saying in the letter, “I inclose you the Davenport note; you are sound on the goose;” that Elliott received the note before it was due, placed the amount thereof to Barnett’s credit, and did not otherwise pay anything on or for the note; that he then, and before the note became due, told Davenport that he held the note, and that Davenport must pay the same when it became due; that Davenport did not pay any sum to Elliott, but sent the amount of the note with .interest to Barnett when the note became due, and that Barnett received and accepted the same in payment of said note. Elliott testified that he purchased the note from Barnett, and Barnett testified that he indorsed the note and sent it to Elliott for collection merely. The jury found in favor of Elliott. We think the jury found correctly. Elliott became the owner of the note by purchase from Barnett. It is not necessary in order to transfer title to a promissory note that the purchase-money therefor should be paid down. Indeed, it has been held in New York that the indorsee of a promissory note for a consideration which was by the agreement of the parties not to be paid until the note should be collected was nevertheless the owner of the note, the real party in interest, and might maintain an action thereon: Cummings v. Morris, 3 Bosw., 560; same case, 25 N. Y., 625. The case at bar is different from all the cases cited by counsel for plaintiff in error. The note in this case is valid against all attacks. No legal or equitable defense existed against the note when it was assigned. It was not affected by usury, or any other illegality, nor by fraud, nor by any want or failure of consideration. Everything connected with it, legal and equitable, was in its favor, and everything passed to Elliott by the assignment. When Davenport paid Barnett said money he could not pay it on the note, for Barnett did not have possession of or hold or own the note. He could -not pay any debt to Barnett, for he did not owe Barnett any debt; and he cannot now plead any ignorance or innocence with regard to the matter’, as he well knew who owned the note when he paid Barnett the money. He should have paid Elliott, and then allowed Elliott and Barnett to settle their affairs between themselves. The judgment of the court below is affirmed. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: The judgment in this case must be reversed and a new trial granted for misconduct of the plain tiffs below, (defendants in error.) Some time before the trial of the cause all the regular jurors were excused by the court except six. The court then ordered that the sheriff summon twelve additional jurors for the term. Soon after this, J. A. Ham, one of the plaintiffs below, who had long resided in the city of Atchison, and was acquainted throughout the county of Atchison, approached said sheriff and handed to him a list of persons, and solicited the sheriff to summon said persons as such jurors. The sheriff however carefully tried to avoid summoning any of them as jurors, but by oversight or inadvertence did summon at least one of them, and this person served on the jury that found the verdict in this case. It is this verdict, and the judgment founded thereon, that the plaintiffs in error (defendants below,) now seek to have set aside. About the same time another person who carried on business in the same room with Ham applied, though an attorney of the court, to the sheriff to be summoned on the jury, and when this case was called for trial and the jury was being impanneled this same person was found present in the court room, among the bystanders, but the sheriff did not summon him on the jury. Other suspicious circumstances occurred before and during the trial not necessary to be mentioned. But these circumstances, together with those heretofore mentioned, tend very strongly to show an attempt to pack the jury, and to obtain a verdict by unfair and unwarrantable means. It may be that the conduct of Ham and others was innocent; and the parties connected therewith testify that it was innocent; but it seems almost impossible to believe thát. all of such conduct could be innocent. The circumstances are certainly very suspicious. It may also be that the seeming misconduct of the plaintiffs did not affect the verdict of the jury; but it may be that it did, and we cannot say that we feel clear that it did not, and this is all that is necessary to require a reversal of the judgment. When a party has committed a flagitious act in order to obtain some undue advantage over his adversary, as it would seem one of the plaintiffs in this case did, such party should not ask that the other parties ’ should show that they were in fact prejudiced by his acts. On the contrary, he should be compelled to show clearly and beyond all reasonable doubt, if not beyond all doubt, that such parties were not prejudiced by his unwarranted and reprehensible misconduct. It is claimed that the.misconduct of said Ham was known to the defendants during the trial, or prior thereto, and that they did not then, as it is claimed they should have done, raise any objection to the jury as impanneled, but waited until the verdict was returned before they raised any such objection. Now it is not shown that the defendants knew of such misconduct prior to the trial; and we suppose it will hardly be urged seriously that tlie objections should have been raised during the trial, when the misconduct was not discovered prior thereto. Are the. defendants bound in such a case to charge in the face of the jury before whom they are trying their cause that the jury has been packed? Must the trial be postponed for the purpose of going into a long and tedious investigation of the question whether the jury has been packed or not? And if either party cannot go into the investigation immediately, on account of absent witnesses, or the like, must the trial be still further postponed for such investigation? Or in such a case, must the jury hear and determine the cause, knowing at the same time that such question is pending over them? We think it is sufficient for the defendants (or any innocent and injured party) to raise tlie question on a motion for a new trial, after verdict. There are many other questions involved in this case, but we shall not examine them at the present time.. When the case shall appear on another trial to have been fairly and honestly tried by the parties; when it shall appear that it was tried without any unwarrantable interference by the parties with the selection of the jury; when it shall appear that the case was tried without any other unfair or unjustifiable means being used to influence the jury or some individual member or members thereof, then we shall be willing to examine the other questions. The judgment of the court below is reversed. All the Justices concurring.	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The opinion' of the court was delivered by Brewer, J.: The defendant in error recovered a judgment on a policy of insurance issued by the plaintiff in error on the life of his wife Eliza E. Haney. To reverse this judgment this proceeding in error has been brought. The questions presented in the record arise solely upon the exclusion of testimony, and the charge of the court. Eight grounds of error are presented and discussed by counsel for plaintiffs in error in their brief; yet the determination of two or three will dispose of them all and decide the case. The first and third points present the same question, and may be considered together. That question is this: Can the declarations of a party, whose life is insured for the benefit of another, made long after the application and ? _ x 1 the contract, be received m evidence against the assured to impeach the truthfulness of the application ? The contract is between the assured and the insurer. The parties are the same whether that which is insured is a human life or a building. There is this difference, that the life being active can by its conduct affect the contract even so far as to annul it, while the building being inanimate and passive has of itself no such power. But aside from this the rights and liabilities of the parties to the contract are the same. The party insured is not a party to the record, and therefore he declarations are not admissible on that ground. She is not party in interest, as the whole benefit and interest inures to the assured. She is not his agent, and authorized to speak for him. Nor does she come within any other rule by which her declarations can be received against him. The question was fully examined and settled in the cases of Rawls v. American Life Ins. Co., 36 Barb., 357; same case, 27 N. Y., 282; Mutual Life Ins. Co. v. Applegate, 7 Ohio St., 292. In the case of Aveson v. Lord Kinnaird, 6 East, 188, the declarations made intermediate the application and the contract were admitted; and in Kelsey v. Universal Life Ins. Co., 35 Conn., 225, declarations shortly prior to the applications were received. In both cases however they were considered by the courts as being so near the application as to be properly a part of the res gestee, and in the first case Lord Ellenborough spoke of it as perhaps proper as a sort of cross-examination of the statements made to the medical man. While it may well be doubted whether the reasons given for these two decisions are good, still they in nowise conflict with the well-settled principles upon which the other cases were, and upon which this must be decided. The second ground of error is the striking out certain parts of the depositions' of the officers of the company. The depositions were of the president and 'the medical L x examiner.' That which was stricken out was? first, a copy of the application. As the application was set out in the answer, and not denied under oath, its execution was admitted; and even the original would have been surplusage in the testimony. The second part struck out was a statement of the manner of transacting business in the home office of the defendant. We do not see how the ruling of the court either way on this could have wrought injury to either party. The third, and that which presents the most difficulty, is the striking out from the deposition of the president of the company the following: “I approved it, and a policy was thereupon issued in accordance with the application. In approving of it I was governed entirely by the answers and representations contained in the application, and by the fact that it had been approved by the medical examiner of the company. I never should have approved of the application, nor would the policy have been granted, had I known or had it been stated therein that the parents or either of them of the party whose life was to be insured had died from the effects of a fever-sore, or pneumonia, or that her brothers or sisters had died of consumption, or that the party whose life was to be insured had had bleeding at the lungs. The application was approved and the policy was issued in the full belief on the part of the company that the representations and answers contained in the application were true, and no policy would have been issued had I or the company supposed, or had any reason to believe, that the representations.and answers contained in the-application were in any respect false.” The ruling of the court was correct. How far false statements, if any there were in the application, affect the validity contract, is a question of law for the court, and not one to be settled by the opinion or judgment of either party. The contract is based upon the application. The law presumes this, and determines the nature and extent of the relation. Were the statements true? That is one question, and this testimony throws no light on it. If false, were they willfully false? If false, did their mere falsity, independent of any question of materiality,,avoid the. contract? It is too plain for controversy that upon these questions this testimony has no bearing, and may be laid aside as; immaterial. Nor can the question of materiality be decided: or affected by this testimony. Where the application is in-writing the law determines what is and what is not material,, a determination which applies to all similar contracts. Campbell v. N. E. Mutual Life Ins. Co., 98 Mass., 402; Muller v Mutual Benefit Life Ins. Co., 31 Iowa, 232. Of course the entering into the contract is, as to either party, a voluntary-matter. Each insurance company may determine for itself upon what conditions it will make its contracts. It may lift any trivial, unimportant matter into an essential prerequisite- and condition of the contract, and no person can make any legal complaint because it insists upon such condition y and. any legitimate testimony which shows that it made such- immaterial matter a condition of or material to its contract maybe given in evidence. Of such nature is the testimony offered in the case of Valton v. Nat. Fund Life Ins. Co., 20 N. Y., 32,. where the company’s officer stated during the pendency of the negotiations that the company would not take a risk under certain circumstances which in fact existed, but the applicant represented did not. But neither party can, without the-knowledge of the other, lift an unimportant and trivial thing into a material and essential fact, and when the contract has been executed by the other party, and it is called upon to perform its obligations, say that it intended this trivial matter should be essential, and that it did not exist as represented. If a party would make anything material other than what the law says is material, it must be made known to the opposite party prior to the contract; otherwise the law will determine what is material upon the transactions as they took place between the parties. Hence, what the president of the ■company considered material, and what he would have done if he had known certain things, is immaterial, unless such judgment and determination were communicated to the other party prior to the contract. Not being thus communicated they were properly rejected by the court on the trial. The remaining points were on the charge of the court. On the application of the plaintiff the court gave this instruction: “If Mrs. Haney answered the questions put to her to the best of her knowledge and belief, any misstatement by her, unless the same was made willfully and fraudulently, will not-avoid the policy.” And the court refused the following instructions asked by «defendant: “1st. That the statements and declarations which are contained in the application for insurance of the said Eliza E. Haney, and set out in the defendant’s answer, are warranties; and if the jury shall find that any of such statements were untrue the plaintiff cannot recover. “2d. It is immaterial whether such statements contained in said application, and set out in said answei’, were untrue from design, mistake, or ignorance. If any of them are found by the jury to be untrue, the plaintiff cannot recover. “3d. The statements and declarations made by the said Eliza E. Haney in her application for insurance, upon the faith of which the policy of insurance sued upon was issued, whether regarded as warranties, or representations of facts, must nevertheless be substantially true in all respects material to the insurer to estimate the risk to be assumed; and if materially untrue in any respect such untruths will .avoid the policy, even if such untrue statements were made ignorantly and in good faith.” “ 6th. The statements and declarations made in Eliza E. Haney’s application for insurance in reply to specific inquiries in regard to her own previous health, or to the cause of the death of her parents, brothers, or sisters, are material to the insurers to enable them to estimate the risk proposed, and to determine upon the propriety of entering into the contract; and if they arc in any material respect untrue the policy is void.” As the record fails to show that all the instructions are preserved, or all bearing upon the particular points embraced in these, it is doubtful whether under the ruling of this court in Morgan v. Chapple, (ante, pp. 216, 225,) there is anything here we can properly consider and decide. The instructions refused may have been refused because already given, and that given may have been accompanied and qualified by others so as really to present the law exactly as the counsel for plaintiff in error insist it should have been. We find in the record one instruction that qualifies it materially, given at the instance of the defendant, namely: “If at or before the time of making the application for insurance Eliza E. Haney actually had consumption, or any of the other diseases or infirmities enumerated in her application, and as to which she was interrogated and answered ‘No,’ then the policy is void, and the plaintiff cannot recover.” More of similar import may have been given. Yet the instruction complained of is positive, clear, and free from any ambiguity: A . , Í . , to J > ana “ 1<; state ™-e *aw improperly may have misled jury. It becomes therefore necessary to examine it, and in its examination we cannot avoid touching incidentally some of the instructions refused. The policy stipulates as follows: “This policy is issued and accepted by the assured upon the following express conditions and agreements: 1st. [Here are enumerated a number of conditions, among them the following:] “Or if any of the statements or declarations made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue.” [Then follow others, and then is the following:] “then in every case the said company shall not be liable for the payment of the sum insured, or any part thereof, and this policy shall be null and void.” We do not understand the clause, “upon the faith of which this policy is issued,” as limiting this condition to a portion of the application, or any particular statements therein. It does not mean to imply that there are certain statements which must be true because the policy is based upon them, while others are immaterial. It means that the policy is issued upon the faith of the whole application, with all its statements and declarations, and that if any of them are untrue the policy is avoided. We must therefore consider the application as a whole, and each party has a right to have it so considered. If the application propounds certain questions, and indicates in what manner they must be answered, it is enough that they are answered in that manner; and when the policy is based upon the statements and declarations of the application, it is based upon them made in the manner and under the rules laid down by the company in the application. If we turn now to the application we find the following: “Instructions in filling up this application: First, answer each of the questions on the first page, to the best of your knowledge and belief, briefly but explicitly.” And at the close of the questions and answers of the applicant, and just before her signature, is the following: “It is hereby declared that the above are fair and true answers to the foregoing questions, and it is acknowledged and agreed by the undersigned that the above statements shall form the basis of the contract for insurance, and also that any willfully untrue or fraudulent answers, any suppression of facts in regard to the party’s health, or neglect to pay the premium on or before the day it becomes due, will render the policy null and void, and forfeit all payments made thereon.” While the policy for its validity requires truthfulness in the statements of the application, it is enough if they are true according to the degree and conditions of truthfulness required by the application. That is all the parties meant when they spoke of truthfulness in the policy. To presume otherwise, and suppose that the company meant one degree of truthfulness in the application, and another in the policy, is to impute a dishonesty which the law will never presume, and if shown to exist will never sustain. We think therefore the. court properly gave the instruction asked by plaintiff, and in so far as those refused convey a different doctrine they were erroneous. The judgment is affirmed. All the Justices concurring.	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Opinion by SimpsoN, C.: This is a controversy between the divorced wife and the mother of Wilbur H. Titsworth, deceased, as to which one is the beneficiary of a benefit certificate issued by the Ancient Order of United Workmen of Kansas, for the sum of $2,000, on the order of said Wilbur H. Titsworth. The mother brought suit in the district court of Lyon county against the grand lodge of the order, to recover the amount named in the benefit certificate. The grand lodge, through its proper officers, came into court, admitted the death of Titsworth while a member of the order in good standing, and that there was due his legal representative the sum of $2,000; but stated that his wife also claimed to be his beneficiary, and offered to pay the money into court, and asked that the wife be substituted as the party defendant.- The court thereupon made an order allowing the grand lodge to pay the said sum of $2,000 into court and be released from any obligation respecting the same, and made Susan M. Tits-worth, the plaintiff in error, the party defendant. All this was done, and she filed an answer claiming the proceeds of the benefit certificate. The issues thus made were tried by a jury, at the February term, 1887, and they returned a general verdict for the mother, E. Nellie Titsworth. A motion for a new trial was overruled, and a judgment rendered on the verdict of the jury. Numerous errors are assigned in the petition, the most important being the overruling of a motion for a new trial; and this brings into review all the exceptions taken to the admission and against the rejection of evidence, certain instructions that are alleged to be erroneous, and various other matters that will be commented on. In the determination of the various questions arising in this case, it must be constantly borne in mind that the Ancient Order of United Workmen, the association that issued the benefit certificate, is no longer a party, and is not taking any part in the litigation. It has paid the money into court, and has been released from all obligation respecting it. This payment, however, is an admission on its part that the benefit certificate was rightfully issued, and hence all contention as to whether its rules and regulations respecting these matters had been complied with is out of the case, and is entirely disposed of. We mean by this to assert that when the association issues a certificate, or changes the benficiary, all questions as to whether it is done or not in ac-..i -i ,. cordance with its rales and regulations, are con-eluded. We adopt the reasoning and conclusions of the cases of Splawn v. Chew, 60 Tex. 522, and Manning v. A. O. U. W., Kentucky Court of Appeals, 5 S. W. Rep. 385, as being the best exponents of the law on this question that have fallen under our observation. But we are met with this contention on the part of the plaintiff in error, that the case of Olmstead v. Benefit Society, 37 Kas. 93, is decisive of this question so far as our state is concerned. In that case there was a controversy among several claimants to money due upon a certificate of membership issued by the Masonic society, a cooperative insurance company organized under the laws of Kansas. The pivotal question in the case was whether or not the beneficiary named in the certificate could be changed, and the fund disposed of by will, as was attempted to be done. The court held that this could not be done, for two reasons: first, admitting that a member of a cooperative society retains the power to change the beneficiary, still he cannot exercise his power except with the consent of the society, and in conformity with the rules and regulations of the society; second, because of the operation of the provisions of §76, chapter 93, Laws of 1871. In this case the Ancient Order of United Workmen is not incorporated under the laws of Kansas, but partakes of the nature of a voluntary association, governed in all matters by its own constitution and by-laws. It seems clear that the provisions of §76, chapter 93 of the Laws of 1871, do not apply, but that the regulations prescribed by the governing body of the association determine the manner in which the beneficiary in a certificate can be changed. There is another very marked distinction between the cases. In the reported one, it is said in the opinion “that no provision was made in the certificate of membership for a change in the beneficiary, and the record does not show what rules, if any, the society had made respecting such change.” In the case we are considering, the record does show how the beneficiary may be changed. In the Olmstead case, no change was made by the society; in this case, the association did make a change, at the request and on the application of the member; so that an entirely different class of questions arises in the two cases. Finally, §78, chapter 50a, Compiled Laws of 1885, declares that the provisions of the act containing § 76 shall not apply to companies organized on the cooperative plan, and we think this order of United Workmen operates on that plan. The defendant company in the Olmstead case was also organized on the cooperative plan; but, as the section making the provisions of the act inapplicable to such companies was not then brought to the attention of the court, it was erroneously led to apply the rule prescribed in § 76, and to state it as an additional ground for the decision there made. The case was, however, correctly disposed of on the first ground of decision. Substantially the same rule is applied in both cases. In the Olmstead case it was held that the beneficiary could only be changed by the consent of the society, and in conformity with its rules, and could not be done by a will. In this case the change is sustained upon the ground that a certificate was issued changing the. direction of the benefit, and the assumption is that the regulations of the society had been substantially complied with. Now in this case the original benefit certificate was made payable to the plaintiff in error, Susan M. Titsworth, who was then the wife of the said Wilbur H. Titsworth, and was dated on the 23d of February, 1886. Subsequently, on the 25th day of August, 1886, the original certificate having been surrendered and canceled, another certificate was issued, payable at the death of Titsworth to bis mother, E. Nellie Titsworth, and his brother, C. E. Titsworth, $1,000 each. In July, 1886, a decree of divorce was rendered in an action pending in the Shawnee county district court, between the plaintiff in error and Wilbur H. Titsworth. The precise contention is, that this last benefit certificate, not having been issued in the exact manner prescribed by the by-laws of the association, was a nullity, and the first certificate, in which the plaintiff in error was the beneficiary, remains in force. This contention is based on §17 of the constitution of the grand lodge of Kansas, which reads as follows: “Any member holding a beneficiary certificate, desiring at any time to make a new direction as to its payment, may do so by authorizing such change in writing on the back of his certificate in the form prescribed, attested by the recorder, with the seal of the lodge attached, and by the payment to the grand lodge of the sum of fifty cents; but no change of direction shall be valid or have any binding force or effect, until said change shall have been reported to the grand recorder, the old certificate, if practicable, fifed with him, and a new beneficiary certificate issued thereon; and said new certificate shall be numbered the same as the old certificate: Provided, however, Should it be impracticable for the recorder to witness the change desired by the brother, attestation may be made by a notary public or an officer of a court of record, seal to be attached in- attest.” At the time the deceased made a change in the beneficiary, he was on a sick-bed at Denver, Colorado, and he instructed a woman named Shipman, who was nursing him, on the 17th day of August, 1886, to write a letter to the presiding officer of his lodge at Topeka, changing the beneficiaries in his certificate from the divorced wife to his mother and brother, and then he instructed her to fill out the order on the back of his certificate, to make the benefit payable to his mother and brother. The woman signed his name both to the letter and the indorsement on the back of his certificate by his express direction, and these were mailed to his lodge on the 19th of August; they were received by the recorder of the lodge on the 23d day of August, and the new certificate issued. It ap pears from this that the signature of Titsworth to the order desiring the change in the beneficiary was not made in the presence of the recorder, or attested by the seal of a notary public or some officer of a court of record having a seal, and hence the complaint that it was ineffectual to change the direction of the benefit. The eases cited above lay down this rule: “A clause or by-law of an insurance or other corporation, pointing out a way in which the right to dispose of the insurance-money may be exercised, merely directory in its character, and whose object is to protect the corporation, cannot be taken advantage of by outside parties claiming the insurance. Such provisions are for the protection of the company alone, and can only be used by it.” We know that there is some seeming conflict of authority on this question, and it may be suggested that the contrariety of opinion found in the books, if carefully examined and traced to its sources, will be found to have originated in the differences of parties to actions of this character. If the action is against the association to recover the amount due on the certificate, by a party to whom the direction of the benefit has been changed from an original certificate, and the association pleads that the new beneficiary has not been named in accordance with its rules and regulations, this presents one phase of the question. The constitution of the grapd lodge of United Workmen of Kansas prescribes that upon the death of a master workman in good standing, who has complied with all the laws, regulations and requirements of the order, such person or persons as said member may have directed while living shall be entitled to receive of the beneficiary fund of the order the sum of $2,000. The beneficiaries are confined to one or more of the members of the family of the member, or some person or persons related to him by blood, or who shall be dependent upon him. The provision as to the change in the beneficiary has ah’eady been noticed. These certificates constitute a contract between the association and the member, and the right to change the direction of the benefit and to create new and different beneficiaries is a part of that contract, and can be exercised by the member at his pleasure, so long ag ^ persons designated as beneficiaries come within the prescribed classes of family, blood relatives, or dependents. It is claimed that the act of Wilbur H. Titsworth in changing the benefit from his wife to his mother and brother was not voluntary, but was the result of undue influence on the part of the woman Shipman. The testimony respecting this is voluminous; but as the jury passed upon that question, and there is ample evidence to sustain the verdict, and it was approved by the trial court, it must be accepted as conclusive here. In the view we take, that under the constitution and by-laws of the order the member had a right to change the beneficiary in his certificate at pleasure, all the other errors complained of are immaterial. It is therefore recommended that the judgment be affirmed. By the Court: It is so ordered. All the Justices concurring.	[ -80, 108, -80, 92, -120, -32, 34, -70, 82, -127, 37, 87, -55, -54, 17, 111, -32, 45, 81, 121, -13, 51, 55, -120, -46, -13, -7, -51, -79, 77, -83, 85, 75, 48, 10, -59, 66, -94, -53, 20, -116, 6, 10, -31, -7, -124, 52, 115, -46, 91, 113, -98, -77, 43, 28, 99, 40, 44, 93, 41, 81, -79, -66, 4, 127, 7, 17, 4, -100, -81, -56, 46, -104, 21, 64, -24, 81, -90, -58, 118, 3, -103, 13, -10, 102, 33, 16, -19, -72, -116, 15, -74, -99, 39, -110, 65, 115, 9, -76, 25, 127, -108, 39, 124, -2, 20, 24, -88, 3, -113, -106, -127, -35, 124, -100, 11, -17, -121, 50, 113, -55, 114, 93, 71, 122, 59, -113, -70 ]
The opinion of the court was delivered by Smith, J.: This was an action in ejectment. Judgment was for defendant. Plaintiff appeals. The tract of land, the right to possession of which is in dispute, consisted of accretions to a fractional lot near the Missouri river in Doniphan county. The petition alleged that plaintiff was seized in fee of the fractional lot that had been surveyed when the state was surveyed and also of a certain tract, describing it, consisting of 100 acres, more or less, which was accretion to the fractional lot and that defendant was unlawfully withholding possession from her. The petition prayed for the recovery of the premises and for damages for withholding same. Defendant answered first with a general denial. The answer further alleged that defendant was in possession of part of the land described in the petition. The answer alleged further that he and his immediate grantors had been in open, notorious and adverse possession of the land and exercising ownership thereover for more than fifteen years prior to the bringing of this action. The answer then alleged that in 1915 William Ogden was in possession of the real property in question, and that during the year 1918 defendant purchased the property of Ogden and that since that time defendant had spent money improving same and for more than twenty years defendant had been operating the property as a farm. The answer made the following allegation: “That during said time and for more than fifteen years, next, last past, prior to the commencement of this, action this answering defendant has operated said farm land, improved the same in a manner becoming a diligent farmer, all with no objections or outcry from the plaintiff; that the plaintiff has lived in the city of White Cloud for more than twenty years, next, last past, prior to the commencement of this action, knew of the circumstances surrounding the real property which is the subject of this action- and permitted the plaintiff to stay in possession of said real property and improve the same as heretofore alleged without objection on her part; that the plaintiff is guilty of laches in that she has for so many years knowingly and without objection permitted this answering defendant to be in possession of said real property, and that by reason thereof, is not entitled in law or equity to maintain this action and is estopped from maintaining this action.” Plaintiff filed a reply to this answer in which she pleaded a general denial. It will be seen that the pleadings made out a case where plaintiff was claiming title to real estate because it was an accretion to a lot owned by her, and defendant was claiming it by reason of adverse possession. The case was submitted to a jury. A verdict was returned in favor of defendant. Judgment was entered in accordance with this verdict. From that judgment this appeal is taken. The first error of which plaintiff complains is that the court should have sustained her motion for a directed verdict at the close of all the evidence for the reason that defendant failed to meet the requirements of the law necessary to establish title in him by adverse possession. Plaintiff cites authorities and argues that defendant did not meet the requirements there laid down. The trouble with that argument is that plaintiff failed to bring the evidence in the case to this court. There is no way for this court to ascertain whether there was evidence to support the verdict unless the evidence is presented to it. This fact would be sufficient to prevent the question being-reviewed by this court. The fact is, however, that the defendant in his brief furnished sufficient evidence from which it must be concluded that there was sufficient evidence to warrant the trial court in submitting this question to the jury. The plaintiff next complains that the court erred in giving instruction number 12. This was an instruction wherein the trial court instructed the jury as to the defense of laches in a case of this kind. The argument of plaintiff is that since the defense of laches was not pleaded there should have been no instruction on the subject, since the giving of such an instruction tended to confuse the jury. It will not be necessary to decide whether the portion of the answer that has been quoted pleaded the defense of laches sufficiently. The fact is that an examination of the instruction 'of which complaint is made discloses that the court instructed the jury that in event the other elements of laches were present the plaintiff would not be barred on account of laches unless she waited fifteen years to bring the action, as required by the statute of limitations. Since this was the same period of time which defendant had to be in possession of the land in order to acquire title to the land by adverse possession, the plaintiff was not' prejudiced by the instruction. Plaintiff next argues that the court erred in giving instruction number 2, wherein the burden of proof was placed on the plaintiff, and in refusing to give offered instruction number 6, which would have placed the burden of proof on the defendant. Here again it is impossible for this court to say whether error was committed when the evidence is not brought before it. From as much of the record as is brought before us it does not appear that plaintiff was prejudiced by the instruction as to burden of proof. The defendant next argues that the court erred in refusing to give offered instruction number 7. This instruction dealt with the elements necessary to be proved to establish title by adverse possession. The court covered this subject in instruction number 11 in a better manner than it was covered in the offered instruction. It does not appear that any erorr was committed by the trial court, and the judgment is affirmed.	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The opnion of the court was delivered by Thiele, J.: In this appeal the sole question is whether the trial court erred in giving a particular instruction to the jury. The action was for damages from negligent use of a truck. At the conclusion of the evidence the court instructed the jury, and as to those instructions there is no complaint. The cause was submitted to the jury at 9 a. m. on April 25,1935. At 5 p. m. the jury reported it was unable to agree. Court was adjourned until 9 a. m. of the following day, when the trial court, on its own motion, without request from any party and in the absence of any party or his counsel, gave the jury the instruction herein quoted and of which complaint is made. The jury then retired to deliberate further, and between 10 and 11 a. m. returned a verdict in favor of the defendant. The instruction was as follows: “You are instructed that the only mode provided by our constitution and laws for deciding questions of fact in trials is by the verdict of the jury. “In a large portion of cases absolute certainty cannot be obtained or expected. Although the verdict to which a juror agrees must be his own verdict, the result of his own convictions and not a mere acquiescence in the conclusion of his fellow jurors, yet in order to bring twelve minds to a unanimous result you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner and from the same source from which any future jury must be, and there is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impartial or more competent to decide it, or that more or clearer evidence will be produced on one side or the other. And with this in view, it is your duty to decide the case if you can conscientiously do so. “In conferring together you ought to pay proper respect to each others’ opinions and listen with a disposition to be convinced of each others’ arguments and if a much larger number of your body are for one side, a dissenting juror or jurors should consider whether or not they are reasonable in their opinions, where others equally honest and intelligent as themselves who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath, hold a contrary view. “Consider the evidence carefully, consider where the burden of proof has been placed as you have been instructed, read the instructions of the court, and then decide the case solely on its merits in the light of the evidence and the instructions, remembering, however, that the verdict to which each juror consents must represent his individual judgment in the case.” Defendant’s motion for a new trial was denied, and he appeals, his assignments of error including that the court erred in giving the quoted instruction without notice to and in the absence of the parties and their counsel and without request from-the jury; that the instruction as given was erroneous, and that the court erred in not allowing the motion for a new trial. In support of the first assignment, appellant relies upon R. S. 60-2911 and 60-2913, and Joseph v. National Bank, 17 Kan. 256, and Tawzer v. McAdam, 134 Kan. 596, 7 P. 2d 516. The provisions of the code do not of themselves settle the contention. The first section (R. S. 60-2911) has no direct reference to the court’s communications with the jury after submission of the cause. Perhaps it might be said the second section (R. S. 60-2913), which provides that after the jury have retired for deliberation, if they desire further information, they may be returned to the court, because it does not provide for voluntary information by the court, intends the contrary. We are inclined to the opinion that such a construction of the statute would be unduly strict, for, in the trial of any action, it is proper for the court to inquire as to the progress of the jury’s deliberations. In such situation, the court may discover the jury is not fully advised as to some phase of the law or instructions as given, in which event, it would seem proper further instruction should be given. In 1 Blashfield’s Instructions to Juries (2d ed.) § 215, it is said to be a rule of almost universal application the trial court may, after the jury has retired to deliberate, give further instructions, the trial court having a large discretion with respect thereto; that (§ 217) the decisions are not harmonious with respect to right of parties to have additional instructions so given; that (§ 222) the additional instruction should be given in open court, and that (§ 224) there is conflict in the decisions as to necessity of counsel being present when such additional instructions are given. In Joseph v. National Bank, supra, although the lower court’s judgment was affirmed for lack of positive showing counsel were not present, it was said: “Where a disagreement arises between the members of a jury after they have retired for deliberation, they may be returned into court and further instructions given them with reference to the matter about which they disagree, and the court in further instructing them may exercise some discretion as to the extent of its instructions. “It would be error in such a case for the court to give such further instructions in the absence and without notice to the parties or their counsel; but where the record brought to the supreme court ‘is a case made for the supreme court,’ and is silent with reference to the presence or absence of the parties and their counsel, it will be presumed that they were all present.” (Syl. ¶¶ 5, 6.) In Tawzer v. McAdam, supra, it was held it was reversible error for the presiding judge to have a conversation, respecting matters under consideration, with the jury in the jury room and while the jury was deliberating. Appellee calls our attention to Underwood v. Fosha, 96 Kan. 240, 150 Pac. 571, in support of his contention the giving of additional instructions was not error. That was the holding in that case, but it was a negative rather than a positive holding, for there the court said: “(5) After this cause was submitted and the jury had deliberated upon it for two days, the court voluntarily gave them another instruction. The practice is not altogether rare; it should be used with great circumspection, for the obvious reason that jurors who have deliberated long upon a case will be apt to seize on a belated instruction and give it more than its proper proportionate significance. We do not find, however, that the practice has been condemned.” (p. 246.) It must be borne in mind that circumstances may alter any situation. In the case before us, the additional instruction was given when court convened for its morning session, and parties and their counsel might reasonably have been expected to be present, although they might well have assumed the jury having been duly instructed, no additional instruction was necessary or would be given. The same instruction might have been given at some other hour when they had no reason to suspect anything would occur except for the jury to finally render its verdict. On the other hand, the court knew the evening before the jury were not agreed, and it would have been a simple matter to have notified absent counsel additional instructions were to be given. Some weight must also be given to the character and intendment of the additional instruction, some instructions might only be reiteration of those already given, or explanatory of them; others would cover matters not previously mentioned. ,We are not inclined to hold that in every case it would be error to give the jury additional instructions without notice to or presence of parties or their counsel, although the practice is subject to much criticism. The difficulty in showing a prejudicial result is almost insurmountable, and the trial courts should avoid putting the losing party in such a predicament. In the case before us, however, whether the giving of the additional instruction constituted reversible error cannot be disconnected from consideration of the instruction given, which it is contended is coercive and intended to force a verdict. In considering the cases in which the matter of coercive instructions has been discussed, there will be found those about which there can be little doubt the instruction given was coercive, examples' being: Neely v. Travelers Ins. Co., 141 Kan. 691, 693, 42 P. 2d 957; State v. Beacon Publishing Co., 141 Kan. 734, 744, 42 P. 2d 960; Moore v. Owens, 143 Kan. 620, 56 P. 2d 86. On the other hand, some of the remarks of the trial court, or its so-called coercive instructions, have been so mild or have been made or given under such circumstances that the court decided they did not warrant reversal. (See Pacific Railroad Co. v. Nash, 7 Kan. 280; Moore v. Cass, 10 Kan. 288; State v. Garrett, 57 Kan. 132, 54 Pac. 93; Karner v. Railroad Company, 82 Kan. 842, 109 Pac. 676.) There is also a class of cases where the claimed coercion was based on remarks which it was contended threatened to hold the jury until an agreement was reached. (Sibley v. Cotton Mills Co., 85 Kan. 256, 116 Pac. 889; Brecheisen v. Clark, 103 Kan. 662, 176 Pac. 137; Alcorn v. Cudahy Packing Co., 125 Kan. 493, 264 Pac. 741.) None of the above lists of cases is intended to be exhaustive, simply illustrative. There is also that class of cases, similar to the one under consid eration, where after the jury has deliberated for some time, the court gives an additional instruction concerning the duty of the jury to come to a meeting of minds and agree on a verdict. This court is not unaware of the difficulties under which trial judges perform their duties and the repugnance with which they observe juries disagree when to the court’s mind no good reason for disagreement exists. Neither are we unaware that for some time past, trial judges collectively and individually have given attention to framing an instruction, the intent of which is to avoid disagreements of juries, the desired instruction being one which will avoid the Scylla of impotence and futility on the one hand and the Charybdis of obvious error on the other. Other cases having an instruction of like effect might be cited, but apparently the instruction in Commonwealth v. Tuey, 8 Cush. (Mass.) 1 (decided in 1851), has been the inspiration for others of like effect. Although that instruction was approved by that court, it should be remembered that in that state at that time the right of the trial court to comment on the evidence was recognized, a situation that does not obtain in this state. Therefore, the instruction may not have had the same insidious effect it would have if given in one of our district courts. The instruction there approved read: “The only mode, provided by our constitution and laws for deciding questions of fact in criminal cases, is by the verdict of a jury. In a large proportion ' of cases, and perhaps, strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must of course be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner and from the same source from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And with this view, it is your duty to decide the case, if you can conscientiously do so. In order to make a decision more practicable the law imposes the burden of proof on one party or the other in all cases. In the present case, the burden of proof is upon the commonwealth to establish every part of it, beyond a reasonable doubt; and if, in any part of it, you are left in doubt, the defendant is entitled to the benefit of the doubt, and must be acquitted. But, in conferring together, you ought to pay proper respect to each other’s opinions, and listen, with a disposition to be convinced, to each other’s arguments. And, on the one hand, if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many men, equally honest, equally intelligent with himself, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves, whether they may not reasonably, and ought not to doubt the correctness of a judgment, which is not concurred in by most of those with whom they are associated; and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.” (p. 2.) The Tuey case has been cited often. We need not note those decisions of other states either approving or disapproving what is there held, further than to note in Highland Foundry Co. v. N. Y., N. H., & H. R. R., 199 Mass. 403, 85 N. E. 437, it was said: “There is perhaps no case in our reports more familiar to those, whether on the bench or at the bar, who are engaged in the trial of jury cases, than Commonwealth v. Tuey. It is often quoted or read to juries slow in coming to a verdict, and many times with salutary effect. But it generally has been regarded by the profession as going nearly if not quite to the extreme limit. The charge to which exception was taken in that case was made in a trial in the court of common pleas, by a judge who afterwards became a conspicuous judge of this court, and who enjoyed the reputation of being one of the most accomplished jurists of the commonwealth. In delivering the charge he was treading on delicate ground, and evidently was aware of that fact. His words seem to have been chosen with great care.” (p. 407.) In State v. Bybee, 17 Kan. 462, 464, the trial court gave an additional instruction, quoted in full in the opinion, calling attention to the expense of the trial; that on another trial the case would be no more clearly presented; that the jury was impaneled to agree and not wrangle, etc., and that the jury should bring their minds together like the “mixing of different ingredients by an apothecary, and ascertain what is the product.” In holding the instruction coercive, this court, in an opinion by Brewer, J., said: “It seems to us under these circumstances, that the remarks of the learned court were calculated to exert too strong a pressure upon the jury in favor of the agreement. It may not perhaps be possible to single out any particular sentence, and say that this is, strictly speaking, and taken by itself, erroneous, and sufficient to justify a reversal, though there are some that seem to trespass a good deal on the right and duty of each juror to the free exercise of his individual judgment. Yet the general impression of these instructions, as we read them, and as it seems to us must have been received by the jury, is, that the jury ought, by compromise, and surrender of individual convictions if necessary, to come to an agreement, and that a failure to do so would be an imputation upon both jury and court.” (p. 466.) In State v. Rogers, 56 Kan. 362, 43 Pac. 256, the court gave an additional instruction, set out in full in the opinion, of which complaint was .made. It will be noted' that while the court called attention to expense of another trial, with probably no more evidence than had been presented, and that there was no more reason why the present jury could not decide with the same fairness as any other jury, nothing was said about the duty of any juror to make his opinion coincide with that of his fellow jurors. In disposing of the contention the instruction was coercive, it was said: “The practice of calling in a. jury and lecturing them upon the desirability of an agreement, although obtaining to a considerable extent in this state, is not to be commended. Jurors very generally understand the importance of agreement, and the inconvenience and expense of another trial. It is presumable that, in their arguments pro and con for many hours together, they chide each other sufficiently, and they ought not to be visited with a scolding by the court because differences of opinion still remain. In this case, however, the oral remarks of the court seem to have had no immediate or early effect, for there was no verdict until the next day; and upon considering the language of the' court, we cannot see enough in the remarks to induce us to believe that they were efficacious in producing an agreement. The language is compared with that used in The State v. Bybee, 17 Kan. 462, 464, 465, but there is little resemblance; and under the circumstances of this case we would not feel warranted in ordering a reversal, as the remarks contain nothing in the nature of instructions, unless at the close, and this was at most but a harmless repetition.” (p. 372.) In Shouse v. Consolidated Flour Mills Co., 128 Kan. 174, 277 Pac. 54, reversed for other reasons, it was said: “The defendant com plains of admonitions given by the court to the jury concerning agreement after it had developed that the jury was having difficulty in reaching a verdict. On two separate occasions the court admonished the jury concerning agreement, in the first of which the court said: ‘It isn’t the duty of any one juror to take an obstreperous or obstinate stand where there are reasonable grounds for minds to differ and so hang the jury.’ “In the second admonition given to the jury the court stated: T feel like you should endeavor to accommodate your views or differences to the others and come to an understanding or agreement, if it can humanly be done.’ “The language used by the court went further than was justified, but it is not necessary for this court to now say that a reversal is compelled for that reason.” (p. 179.) In State v. Rieman, 118 Kan. 577, 235 Pac. 1050, this court said: “The court gave to the jury the instruction approved in Commonwealth v. Tuey, 8 Cush. (Mass.) 1. To the instruction the court appended an admonition, clearly and forcibly restating the matter carefully expressed at the beginning. Guarded in this way, the instruction contravened no decision of this court, and there is no reason to believe it was prejudicial.” (p. 582.) Reference to the briefs in that case show the appended admonition was: “In this connection, however, you are again admonished that the verdict to which each juror consents must represent his individual judgment in the case.” In State v. Richardson, 138 Kan. 471, 476, 26 P. 2d 251, a similar instruction was under consideration, although it is not set out in the opinion, and after quoting from State v. Rieman, supra, it was said: “We do not regard the giving of this instruction as of sufficient gravity to warrant a reversal, since the record does not permit this court to entertain any misgivings as to the correctness of the result.” (p. 476.) In State v. Hathaway, ante p. 605, 56 P. 2d 89, an additional instruction, alleged to be coercive and prejudicial, is set out in the opinion and not here repeated. It contains no statement with reference to a minority of the jury giving heed to the views of the majority. In disposing of the appellant’s'contention the giving of the instruction was erroneous, it was said: “Touching the court’s observations as to the desirability of verdicts and the avoidance of disagreements, this court finds nothing therein which was either coercive or prejudicial. However, it is proper to say that such general observations touching the duty and responsibility of jurors, in our system of administrative justice, would better be given when the venire is first convened. In such circumstances the court’s instructive admonitions would pertinently apply to all cases on which the assembled jurors would serve during the term. Such is a familiar practice in the federal courts. The wisdom of such a lecture on jurors’ duties given in the middle of their deliberations in a particular case is not so clear.” (p. 609.) There are other decisions of this court which might be referred to, but those mentioned are representative and characteristic of what has been said with respect to claimed coercive instructions. In 85 A. L. R. 1420 will be found an exhaustive annotation covering the subject of comments and conduct of trial judges calculated to coerce or influence the jury to reach a verdict in a criminal case, citing cases from many jurisdictions. From an examination of our decisions, it- can readily be seen that while this court has refused on occasion to reverse judgments of the trial court because instructions have been given having a tendency to coerce an agreement by directing the jurors to reason together and talk over existing differences and to harmonize them if possible, to act in a spirit of fairness and candor, not to stand out stubbornly, etc., or by calling attention to the purpose for which the jury was impaneled, it has not approved the giving of any instruction the effect of which was to say the difference of opinion should cause the minority to doubt the correctness of their own judgments and lead them to reexamine the opinion of the majority for the purpose of revising their- own first opinions. On the contrary, even though for reasons assigned, this court did refuse to reverse, in most instances the practice of giving instructions to the jury, after deliberation has begun, the effect of which has even tended toward coercion, has been disapproved, if not condemned. The only purpose in giving such an instruction as we have under consideration is to coerce the jury to agree, otherwise there would be no point in giving it. If the trial court felt there would be need to center attention of the entire panel of jurors on the purposes for which it was called, the duties of the individual jurors in consideration of cases in which they might sit, etc., as said in State v. Hathaway, supra, it would be better were it done when the entire panel of jurors first assembles. If not then given, for adequate reasons arising during the trial of a particular action, such an instruction might not be out of place in connection with other instructions given when the cause is submitted to the jury. But even a very temperate instruction, given after the jury has deliberated for some hours, may very easily concentrate attention on the duty of jurors to agree, to the prejudice of one party. To say to a minority that they should reexamine their views in the light of the opinion held by the majority, without putting a like duty on the majority respecting the opinion of the minority, is wrong. The minority may be right and the majority wrong. Until the legislature provides for verdicts by a definite majority of the jury, the court, by additional instruction, should not suggest, even faintly, that the opinion of the minority is to be controlled by that of the majority. The instruction under consideration was evidently patterned after that in Commenwealth v. Tuey, supra. In reading the instruction given, it must of course be taken as a unit, and so taken it may not be possible to single out any sentence, and say that taken by itself it is erroneous and sufficient to justify reversal (State v. Bybee, supra). But to examine the instruction, we must take its various sentences and paragraphs separately. The second paragraph is much more suited for inclusion in instructions originally given, although advising the jury they should consider the case must sometime be decided, stresses a matter with which they are not presently concerned. This paragraph, given at the time it was, is somewhat specious, and the statement there is no reason to believe the case will ever be submitted to twelve more intelligent, impartial and competent jurors savors a little too much of unjustified flattery, especially when considered with the statements of the third paragraph. The third paragraph is a direct appeal to the minority of the jury to accommodate their minds to the opinions of the majority. It is proper to advise the jury that in conferring together they should pay proper respect to each other’s opinions and listen to each other with a disposition to be convinced, but to go further and advise the minority to doubt their own judgments is erroneous. Had a corresponding duty been put on the majority, the effect might have been different, but if such an instruction is proper, it should be given on the original submission. After putting in the coercive third paragraph, the instruction proceeds in the fourth paragraph to reiterate matters touched on in the original instructions, and closes with the admonition the verdict to which each juror consents must represent his individual opinion. If that admonition were the forceful part of the instruction, it was needless; the jury were told its substance in the original instructions. Apparently this qualifying paragraph was inspired by the appended' admonition to the Tuey case instruction, as mentioned in State v. Rieman, supra, and while it was there said the instruction contravened no decision of this court and there was no reason to believe .it was prejudicial, it is doubtful whether the bonclusion would be correct, or if correct, of controlling effect under the circumstances of this case. It would seem the third paragraph put in the poison, and the fourth paragraph was intended as an antidote. However that might be, the minority of the jury, after the instruction was given, made their minds agree with the majority, and in less than two hours a verdict was reached. The difficulty of showing prejudice has been heretofore mentioned. All of the circumstances here, the length of time the jury had previously deliberated, the fact the instruction was given without notice and in the absence of the parties or their counsel, the content of the instruction, the early agreement thereafter, lead to the conclusion the instruction was not only coercive, but was prejudicial to the appellant. As stated in an early part of this opinion, we are not inclined to hold the voluntary giving of additional instruc tions in all cases is error. We do hold that it was in this case. We also hold the instruction as given was erroneous and prejudicial. Appellant’s motion for a new trial should have been sustained. The judgment of the lower court is reversed, and the cause remanded for a new trial.	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The opinion of the court was delivered by Smith, J.: These were actions on the official bond of a county treasurer. Judgment was for plaintiffs overruling the separate de murrer of the defendant insurance company to the petitions. The defendant insurance company appeals. The cases were not consolidated, but they were argued together, and since with one exception, which will be noticed presently, they involve similar facts and identical legal questions, they will be covered by one opinion. The facts of case number 32,784 will be stated. The facts are simple. Defendant Eddy was county treasurer of Shawnee county. The defendant insurance company was surety on his bond. The plaintiff was the owner of real estate in Shawnee county against which taxes had been assessed for 1931. On December 20, 1931, plaintiff delivered its check to Eddy, as county treasurer, in payment of the first half of the 1931 tax. This check was drawn on the International Mortgage Trust Company of Topeka. Plaintiff had at the time the check was drawn and delivered to the treasurer and continued to have on deposit in the trust company, subject to check, sufficient funds with which to pay the check had it been presented. On or about the 20th day of December, 1931, Eddy delivered to plaintiff tax receipts acknowledging payment of the taxes. About February 15, 1932, the trust company became insolvent and was taken over by the bank commissioner. It is now in the hands of a receiver. The petition charged that Eddy did “negligently, carelessly, willfuly and unlawfully fail and neglect to deposit” the check in question on the day it was received by him or within a reasonable time thereafter and did in fact hold it in his possession until after the trust company had closed. After the trust company closed its doors Eddy canceled the tax receipt for nonpayment of the check. Afterwards, in order to prevent the sale of its property for taxes, plaintiff paid the taxes for 1931 to Eddy under protest. The petition charged that because of the failure of Eddy to promptly and diligently deposit the check for collection and payment and to perform his official and lawful duty in that respect plaintiff had been damaged in the amount of that check. Judgment was prayed for that amount with interest from December 20, 1931. The defendant insurance company filed its separate demurrer to this petition on the grounds, first, that the petition did not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant; and second, upon the ground that the causes of action attempted to be set up were barred by the statute of limitations. This demurrer was overruled and from that judgment the insurance company appeals. The contention of the defendant in case number 32,784 is based on the first ground named above and can be set out under two main propositions: First, defendant, as surety on the official bond of the county treasurer, can only be held liable for a breach by the treasurer of official duty — that is to say, for a breach of duty properly imposed by law. Second, taxes in Kansas, with a few exceptions, can only be paid in money. There is no statute in Kansas authorizing or requiring a county treasurer to accept checks in payment of taxes or to present checks received by him from a- taxpayer for payment. When a taxpayer delivers a check to the treasurer for the payment of his taxes, he makes the treasurer his agent, and if the treasurer fails to timely present it for payment, he may violate an individual duty growing out of the agency, but he breaches no official duty. The bond is conditioned as follows: “Now, therefore, if the said Jesse A. Eddy shall well, truly and faithfully perform all official duties required by law, as such treasurer of Shawnee county, Kansas, for the term beginning October 10, 1931, and ending October 10, 1933, then this obligation to be null and .void; otherwise to be and remain in full force and effect.” The statute which provides for the county treasurer giving a ' bond is R. S. 19-502. It reads as follows: “. . . the condition of this obligation is such, that.if the said........................ ........................and his deputy, and all persons 'employed in his office, shall faithfully and promptly perform the duties of said office, and if the said...................... ........................and his deputies shall pay, according to law, all moneys which shall come to his hands as treasurer, and will render a just and true account thereof whenever required by said board of commissioners or by any provision of law, and shall deliver over to his successors in office or to any other person authorized by law to receive the same, all moneys, books, papers and other things appertaining thereto or belonging to his said office, then the above obligation to be void; otherwise to be in full force and effect.” A' public officer is assumed to have qualified in accordance with the requirements of the statute. In effect the provisions of the statute are read into the bond. (See Farmer v. Rutherford, 136 Kan. 298, 15 P. 2d 474.) Following this rule, the bond is conditioned upon the county treasurer’s performing the duties of his office. 'At the outset of this discussion we will admit that changing the language of the first proposition stated above so as to follow the language of the statute rather than that of the bond, the surety ..on an official bond of a county treasurer can only be held liable for a failure of the treasurer to perform the duties of the office. Nor will we have trouble in reaching the conclusion first argued in the second proposition. The county treasurer cannot' be compelled to take a check in payment of taxes. The taxes are not paid until the cash actually reaches the county. We must examine the conclusion reached in the second proposition with the idea' of ascertaining whether the conclusion stated is the correct one. The question may be stated as follows: Once a .county treasurer has accepted a check from a taxpayer and has delivered him a receipt in payment of his taxes, does he owe any duty as county treasurer to deposit that check within a reasonable time, or is he acting altogether as the agent of the taxpayer when he takes the check and until he has cashed it? In other words, Is the duty to cash the check a duty of the office or is it merely a duty of the treasurer individually acting as agent for the taxpayer? The liability of the surety on an official bond extends to acts done either by virtue of the office or under color of office. Counsel for both plaintiff and defendant agree to this and it is well established by authorities. (See Crummer v. Wilson, 119 Kan. 68, 237 Pac. 1035; also Hitsman v. Kennedy, 138 Kan. 564, 27 P. 2d 218.) The duties of a county treasurer are fixed by statute. R. S. 19-501 to 19-505 have to do with providing for the office, fixing the bond, providing for a deputy and for filling a vacancy. ' R. S. 19-506 makes it the duty of the county treasurer to receive all moneys belonging to the county. R. S. 19-507 provides that the treasurer shall keep an account of all moneys that shall come into his office and shall keep the books and records open for inspection by the board of county commissioners. R. S. 19-508 provides that he shall make a settlement each October with the minor political-divisions. R. S. 19-509 provides that the treasurer shall redeem county war-, rants when they are presented to him for payment and provides for a method of procedure when there is not' sufficient money, in 'his hands to pay a warrant. The final provision in this section provides that the county treasurer shall receive in payment of county taxes the county warrants issued in the county when they are tendered-in payment of taxes. R. S. 19-510 provides for thé stamping of the amount of taxes paid by a county warrant where it is tendered in payment of taxes. R. S. 19-511 provides that the treasurer shall take the duplicate receipts for money paid out by him and shall file one copy with the county clerk. R. S. 19-512 provides that the county treasurer shall never act as county clerk. R. S. 19-513 provides for the treasurer delivering his books and records to his successor. R. S. 19-514 makes it unlawful for the county treasurer to speculate in any state, county or township warrant. R. S. 19-515 provides “The county treasurer of each county shall be, by virtue of his office, collector of taxes therein, and shall perform such duties in that regard as are prescribed by law.” It will be noted that this section makes the county treasurer tax collector for the county. R. S. 19-516 to 19-519 were all enacted in the session of 1915. R. S. 19-516 provides that it shall be the duty of the county treasurer to furnish by mail a written statement of the personal and real property taxes of any person requesting it. R. S. 19-517 provides that it shall be unlawful for the county treasurer to demand a fee for notifying a person of his taxes by mail and that it shall be unlawful for any county treasurer to demand any fee for accepting payment through the mail of any tax. R. S. 19-518 provides that where a check or draft sent to the county treasurer shall not be paid on presentation any tax receipt issued to any such person on account of that check shall be canceled by the county treasurer on his books, noting on his records that such receipt is canceled for nonpayment of the check. R. S. 19-519 provides a penalty for violation of the above sections. R. S. 19-520 and 19-521 provide for quarterly statements by the treasurer. R. S. 19-522 to R. S. 19-529 were all passed at the special session of 1874. They provide for the probate judge making an examination of the books of the treasurer on the order of the county commissioners, for his reporting about the examination, for a publication of a statement of the treasurer, and other related matters. R. S. 19-530 provides in part that in all counties of this state the county treasurer shall deposit daily all the funds and moneys of whatsoever kind that shall come into his possession by virtue of his office as such county treasurer in his name as such treasurer in one or more banks located in the county and designated by the board of county commissioners as county depositories. The balance of the section provides about the county receiving interest, taking a bond to secure the deposits, and forbids the deposit to be made in a bank in which any member of the board of county commissioners owns stock. Because of an argument that will be noted later it should be noted that this section is composed of section 1 of chapter 94 of the Laws of 1897, as amended by section 1 of chapter 101 of the Laws of 1909. ■ Of interest to us is the fact that the Laws of 1897 provided that all public moneys should be deposited, while the Laws of 1909 provided that “all the funds and moneys of whatsoever kind that shall come into his possession by virtue of his office as such county treasurer” shall be deposited. It should be pointed out that the legislature of 1909 included the words “funds of whatsoever kind.” R. S. 19-531 to 19-537 were passed in 1876. They were made applicable to chapter 94 of the Laws of 1897. They provide that the county treasurer shall make a duplicate deposit slip and shall file one copy with the county clerk; that the county clerk shall charge the bank with the money deposited and shall credit the county treasurer with that amount; that the fiscal agent shall each month send a statement to the county clerk of the amount received from the treasurer; that all checks of the treasurer upon the bank holding the public money shall show upon their face for what purpose they are drawn and shall be countersigned by the county clerk; that the county clerk shall charge the county treasurer with all checks so countersigned; that all tax receipts shall be countersigned by the clerk and the clerk shall charge the amount of each receipt to the treasurer. R. S. 19-538 provides that when thfere shall remain in the bond fund of any school district, township or city after its bonds and interest shall have been paid, any cash, the treasurer shall credit the general fund of the municipality with that amount. R. S. 19-539 makes the same provision for the disposition of a surplus in any other fund. R. S. 19-540 provides for the crediting of a sinking; fund with interest under certain circumstances. R. S. 79-2002 provides that the treasurer shall give a receipt for any tax he shall receive. R. S. 79-2003 provides that the county treasurer shall receive in payment of state taxes state warrants and •matured coupons of the state bonds; that he shall receive county warrants in payment of county tax, township warrants in payment of the tax of the proper township, city warrants in payment of the proper city tax or other such evidence of indebtedness as the city may authorize the treasurer to receive. This section was enacted in 1876. A discussion of the duties of the county treasurer has been set out in detail so that it could be seen that the statutes provide for the functioning of that office in every particular. Attention is first called to a short section which makes the county treasurer the collector of taxes. It might very well be argued that since this official was the collector of taxes, that once he had received a check in payment of taxes there was the duty on him to proceed to collect the taxes by presenting the check for payment. We do not have to rest here, however. Apparently the legislature took note of a practice of which this court would take notice, that is, the great proportion of the business of the county that is carried on by check. In 1915 the chapter which has heretofore been referred to was enacted to take care of that situation. First, the provision that the treasurer should advise a taxpayer by mail of the amount of his taxes, next a provision that no fee should be charged for that service, and what is more important to us that no fee should be charged by the treasurer for accepting a payment of the tax sent through the mail, and next that where a check that had been accepted was not paid on presentation then the tax receipt that had been issued should be canceled. We attach some importance to the fact that all these provisions are part of the same chapter of the 1915 Session Laws. This fact goes far in convincing us that it was the announcement of a general policy that taxes could be paid by check. Undoubtedly the provision about no fees being charged for receiving taxes through the mail relates to checks. We have the additional reason that very seldom is cash transmitted through the mail; besides, the fact that the provision about canceling the receipt when the check is bad follows immediately after the section about paying taxes through the mail and is part of the same act. A little further analysis of this act will be helpful. It will be noted that once the treasurer has received a check and issued a tax receipt therefor he shall cancel the receipt if the check is not paid on presentation. How is the treasurer to find out whether the check will be paid on presentation unless he presents it for payment? Is not the duty enjoined upon him then by statute to deposit this check once he has accepted it? To hold otherwise would be to say that the treasurer might take the check of a friend and hold it indefinitely until some time later when the bank account of the maker of the check would better stand the drain of cashing it. The statute provides that the first half of the taxes should be in the coffers of the county not later than December 20. To hold that the duties •of the office did not require the treasurer to cash a check within a reasonable time would mean that the treasurer might without any breach of official duty hold a check out indefinitely. The county would thus be deprived of its interest, and the risk incident to collecting the taxes would follow. It must be remembered this discussion applies to taxes on personal property as well as real estate. The method of collecting taxes on real estate is fairly simple and quite certain. The collection of taxes on personal property is not so simple or certain. The amount of taxes lost every year by the inability of the sheriff to collect the tax warrants handed him by the treasurer is considerable. A taxpayer walking up to the window or mailing in a check for his personal taxes is one thing, a taxpayer paying out of his own pocket after the bank on which he had given the treasurer a check has failed is another. Between the two lies a possibility for trouble for the county with a possible loss of revenue to the county. We are not deciding whether the treasurer can be compelled to receive a check for taxes. Our question is whether once having received a check it is one of the duties of his office to deposit it .and thus get the money into the coffers of the county. We do not overrule the authorities which hold that the county treasurer is the agent of the taxpayer for the purpose of cashing the check. What we have demonstrated is that once the treasurer has received a check and given a tax receipt therefor, the county has an interest and is owed a duty by the treasurer to present the check for payment and thus get the cash in the bank in the account of the county treasurer. There is another statute having to do with the manner in which the treasurer shall handle the county money — that is R. S. 19-530. The first part of this section has been referred to heretofore. It requires the treasurer to deposit daily “all the funds and moneys of whatsoever kind that shall come into his possession ... as county treasurer.” A further analysis of that statute will be helpful. The subject appears to have been first dealt with by our legislature by the enactment of chapter 183 of the Laws of 1872. That chapter fixed the salary of the county treasurer in counties of a certain population, and provided further that the treasurer should deposit daily all public money in some responsible bank to be desig nated by the county commissioners. The chapter provided further that the bank should pay interest on average balances as might be agreed on. This act marks the beginning of the practice of paying county treasurers a fixed salary and providing that the interest on public money should be paid to the county. What is important to us now is the fact that coincident with the provision that public money should be deposited in a designated bank, came the provision that interest should be paid to the county — that is, the enactment was not only for the purpose of safeguarding public money, it was also intended as a means of giving the county the benefit of the interest earned. This general idea runs through chapter 78 of the Laws of 1876, except that this chapter makes it apply to daily bal■ances; chapter 131 of the Laws of 1887; chapter 189 of the Laws of 1889; chapter 116 of the Laws of 1895 and chapter 94 of the Laws of 1897. Finally, by chapter 101 of the Laws of 1909, the act was made to apply to all counties, and it was provided that the deposit should be made daily and the words “funds and moneys of whatsoever kind” were used rather than simply the word “moneys” and it was provided that interest was to be paid on daily balances. The purpose and general scheme of the act has remained the same, however, that is, the safeguarding of the public funds and the payment of interest to the county. In view of this general scheme of the act we will consider how it affects our question. If it should be held that there was no official duty on the treasurer to deposit a check once it had been received in payment of a tax then if he could hold it out for a month he could hold it out indefinitely. A case can be imagined where a taxpayer might give the treasurer his check for his taxes and get his tax receipt. So far he would have complied with the law. But suppose he asked the county treasurer to hold that check back and not cash it for sixty days — suppose the county treasurer did this, the' taxpayer would have thereby made the interest on his money for sixty days and the county would have lost it for the same length of time. If the argument made by defendant that there was no official duty on the treasurer to deposit this check is true, then he could enter into the sort of an arrangement above set out with impunity. Surely the legislature never intended any such thing. We have in R. S. 19-530 a positive direction for the treasurer to deposit all funds and moneys of whatsoever kind. In the first place he is directed to do this daily. That is because the legislature wanted the county to begin drawing interest as soon as possible. Then we have the reference to “funds and moneys of whatsoever kind.” The word “funds” has a broader meaning than the word “moneys.” It has been held to include moneys and much more, such as notes, bills, checks, drafts, stocks and bonds. (See United States v. Greve, 65 Fed. 488; Hasbrook et al., v. Palmer et al., 11 Fed. Cas. 766; and Ayers et al., v. Lawrence et al., 59 N. Y. 192.) From its use in the context of the act in question we conclude that “moneys and funds” include checks given for the payment of taxes. Indeed, the word “funds” could have been used throughout the statute and it would have covered everything that would come into the hands of the treasurer in payment of taxes. We have thus the plain language of the act, that the treasurer should deposit the checks daily, and the history of the act showing the reason and purpose for its enactment. All these lead us to the conclusion that there was a positive duty on the county treasurer to deposit the checks in question within a reasonable time. We are strengthened in this conclusion somewhat by the arguments used by defendant to meet the various statutory provisions referred to. In referring to R. S. 19-517 and 19-518 defendant argues that the provision refers to the acceptance through the mail of money or some other medium. This argument asks the court to overlook the fact that scarcely any taxes are ever paid by sending cash through the mail and that the warrants that some sections provide may be used to pay taxes are used so seldom that a statute would never be enacted to take care of such a situation as sending them by mail. Most important of all, this argument asks the court to overlook the fact that these sections are all part of the same act passed at the session of 1915 and the section under consideration is followed by one providing for checks and their presentation. In meeting the argument of plaintiff upon R. S. 19-530 defendant contends that the check that is given to a county treasurer does not come into his hands by virtue of his office as such county treasurer, but merely comes into his hands as agent of the taxpayer. It is difficult for us to see the distinction between checks that come into the hands of the treasurer because he is treasurer and those that come into his hands “as treasurer.” Certainly it is an act of the county treasurer that- issues the receipt, and certainly it is the act of the county treasurer that takes the check. Here again we must state that to hold that a check given for payment of taxes was not received by the treasurer by virtue of his office and hence did not need to be deposited daily, would defeat the whole purpose of R. S. 19-530, since, as has been demonstrated, the purpose of the enactment was to get the money received to earning interest right away and the opportunity for a treasurer who desired to lend aid to a friend rather than to do his duty would be a great deal better in case 'of a check than in the case of money. Here the legislature must have intended the section to cover checks. In the case of Moore v. Nation, 80 Kan. 672, 103 Pac. 107, this court considered the question of what duties may be placed upon an official by statute. The court held: “The duties of a public office include all those which fairly lie within its scope; those which are essential to the accomplishment of the main purposes for which the office was created, and those which, although incidental and collateral, are germane to or serve to promote or benefit the accomplishment of the principal purposes. All such duties are official and the incumbent may be compelled to perform them. Duties not so related to an office are unofficial, can not rightfully be attached to it, and the incumbent is not obliged to perform them.” (Syl. ¶ 1.) We have demonstrated that the depositing of a check once it has been received is a duty which fairly lies within the scope of a county treasurer’s duties. In meeting this case defendant points -out the sentence in the above quotation, “All such duties-are official and the incumbent may be compelled to perform them,” and argues that the treasurer could not be compelled to accept a check in payment of taxes. Conceding for the moment that such is correct, we are not considering such a case. What we are considering is whether the treasurer can be compelled to deposit a check once he has accepted it and given a taxpayer his tax receipts. We have seen that by the plain direction of the statute he could be so compelled. The matter was dealt with in a succinct manner by this court in the case of Cherokee County Comm’rs v. United States F. & G. Co., 141 Kan. 301, 40 P. 2d 371. That was an action on a county treasurer’s bond. One of the causes of action was based on a check that had been given the treasurer in payment of taxes, had been cashed by him and converted to his own use instead of being put in a depository. This court quoted and approved the following conclusion of law by the trial court: “ ‘One of the acts complained of in the plaintiff’s petition was the transaction concerning a certain check, payable to “Cherokee County Treasurer,” given by the Federal Mining & Smelting Company, for taxes due the county (see ex hibit, check No. 9062). Upon receiving said check, the said Homer L. Cline, county treasurer, became accountable to Cherokee county for the amount of the check, since it is not denied that the check was good. When the said Homer L. Cline converted the said check to his own use and for a purpose other than that for which the check was intended, he breached the conditions of his bond, and his surety became liable for such breach; and it makes no difference whether such payment was a 'valid payment of taxes or not, because when the said Cline accepted the check, he owed the duty to the county to apply same to its intended use.’ ” (p. 306.) That trial court stated in a few words what has been stated by many words here. We still approve that conclusion of law and consider it in point in this case. In cases number 32,892 and number 32,893 the defendant insurance company argues the matters that have been dealt with heretofore, and also argues that the actions were barred by the statute of limitations. The basis of this argument is that the actions are to recover on a statutory liability, hence the period of limitation was three years. (See R. S. 60-306, Second.) Appellant points out that the petitions claim that the checks in question were given the county treasurer on December 21, 1931. These actions were commenced January 30, 1935. The three-year period had expired December 21,1934. The petitions also state that the trust company closed its doors February 15, 1935. Up to that time the treasurer could have obtained the money for which the checks were given had he presented them. We cannot say that the statute began to run as to these plaintiffs the day the checks were given. He had a reasonable time within which to present the checks. Since these actions were brought three years and ten days after the checks were given and less than three years after the trust company failed, we hold that they were not barred by the statute. ’ The judgment of the lower court is affirmed as to all three cases.	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The opinion of the court was delivered by Thiele, J.: This appeal involves only the amount due on notes given in connection with an amortized mortgage loan. On January 19, 1917, defendant Charles C. Stevens, borrowed from plaintiff the sum of $6,500 on an amortized loan plan, and to evidence the debt executed one promissory note for $13, due February 1, 1917, and thirty notes, each for the sum of $494.97, one being due on February 1,1918, one on a like date of each succeeding year thereafter until February 1, 1947. Each of these notes, except the last, contained this language: “This note is secured by a mortgage deed of even date. The right is reserved to prepay at any time at the home office of said company in Cincinnati, Ohio, by discounting it at the rate of five percentum, interest compounded annually.” The notes were secured by a real-estate mortgage. Thereafter Stevens paid the notes due prior to December 6, 1920. About that time, upon Stevens’ request, the company agreed to accept a total payment of $2,500 to be applied on the notes according to their terms, and to release a portion of the mortgaged real estate. The payment was made as of December 6, 1920, and the portion of the land released from the lien of the mortgage. The company made a computation of credit due Stevens, credited him with the sum of $163.95 on' each of the twenty-seven notes remaining unpaid, leaving a balance due on each of $331.02. Thereafter Stevens continued to pay the notes as they fell due until February 1, 1932; on December 7,1932, he made a payment, leaving-a balance of $199.16 on the note due February 1, 1932. The rest of the notes remained unpaid. As to the above facts there seems to be no dispute. On May 23, 1933, plaintiff filed an action in foreclosure, asking for judgment for amounts due on specified notes, all alleged to total $3,607.59, as of May 23, 1933, with interest from that date at ten percent per annum, and for foreclosure of its mortgage. It may here be stated the appellant attached to its petition a schedule showing the entire series of notes, the allocation of the principal and interest, and showing the division of the proceeds of each note into principal, interest and expense; the testimony, later offered, showing the divisions were for bookkeeping purposes. All of the defendants joined in an answer denying that Charles C. Stevens was indebted in the sum of $3,607.59, and alleging that on December 6, 1920, he made a payment on the principal sum of $2,500 and received credit for only $2,073.32, and that items charged as interest, $103.67, and expense, $158.22, were in violation of the notes and he was given no credit for $164.79, and that he should be credited with the entire sum. It is quite obvious the above figures were taken from the schedule attached to the petition. It was further alleged in the answer the notes provide for prepayment, that defendant was not given the discount provided and that there is no provision in the notes for charges and expenses in the sum of $463.82. At the trial, a deposition of the manager of appellant’s collection division was offered, and his method of calculation of the amounts due on the loan seems to have been confusing to the trial court. Defendants using an interest rate mentioned in the petition, but which the notes did not disclose, calculated the amount they claimed was due by taking $6,500 as principal, 6.44 percent as the rate, and computing the balance due by the partial-payment method. After arriving at a balance, they deducted $125 as being 5 percent of the $2,500 payment. The trial court adopted this method of calculation, but did not give credit for the $125, and rendered judgment for $2,662.14 as of February 25,1935. Plaintiff appeals, its abstract stating its motion for a new trial was filed and overruled, although the only journal entry shown does not mention such motion and ruling. Appellees move to dismiss, because the record does not show a motion for new trial to have been filed, presented and denied. In appellant’s brief is' set out a copy of the motion for a new trial, together with a copy of the minutes on the trial' docket showing the motion to have been denied. Under rule 49 of this court, it was appellee’s duty, as prevailing party, to prepare a journal entry for filing under rule 50. Even though it may be said the minutes on the trial docket are not a part of the record, and even though the above rules were not complied with, under th.e circumstances it would be futile to send the case back to the trial court simply to have a record made of what seem to be undisputed facts. We shall consider the appeal on the errors assigned; that the court erred in rendering judgment for an amount less than the amount due and owing to plaintiff from defendant, and in denying the motion for a new trial. Before discussing the matter of calculating the amount due, some observations may be pertinent. In the making of an amortized loan — and there is no dispute that the one in question is such — the purpose is to provide for the gradual extinction of the debt in advance of final maturity by an annual charge or contribution which will be sufficient to discharge the debt at the final maturity. The amount named as principal in the note evidencing the debt includes not only the amount loaned but the interest thereon at some definite rate, and all calculated in such manner that by an equal payment for a stipulated number of months or years the debt and interest will be fully paid when the last installment is paid. It is not uncommon that in determining the annual payment, there is included as part thereof the net interest which the lender expects to receive as well as expense in making the loan and in taking care of it. Insofar as the borrower is concerned, it makes no difference what elements the lender may choose to include in determining his rate of return, his concern is the aggregate rate as reflected in the periodical payments to be made. The borrower’s liability is determined by the terms of his note or notes, not by the bookkeeping methods of the lender. The making of amortized loans is common with lenders of money on real-estate security. Practically all mortgages made by building and loan associations are on an amortized plan or some modification of it, as are loans made on real-estate security by the various lending agencies of the federal government. The notes given under such a plan bear no interest prior to maturity as each note, where separate notes are given, or each installment where one note providing for installments is given, includes payment of both principal and interest. The matter of computing the amounts of these periodical payments at a stipulated interest rate, requires a rather thorough knowledge of mathematics. In actual practice, resort is had to prepared and published standard tables, such as Glover’s Tables of Compound Interest Function, etc. These various publications, with variations dependent on method of presentation, show the same or substantially the same amounts, rates, etc., and are accepted as accurate. In the case before us the appellee on January 19, 1917, borrowed $6,500, payable $13 on February 1, 1917, and the balance in thirty annual equal payments, coming due serially, of $494.97. The total of these notes is $14,862.10. A computation from the above-mentioned interest tables shows that the interest was calculated at the rate of 6.44555 percent, although for practical purposes in calculation the first note of $13 was not fully considered, and the remaining notes were figured at 6.44 percent. With the exception of the note last due, each contained the provision for prepayment quoted above. It may be observed that this provision is a privilege to the maker, and if availed of, he is penalized in that his notes are based on a higher rate of interest than the discount rate allowed him. On the trial of the action, as indicated by the pleadings, the primary question was whether appellee received full and proper credit for the $2,500 payment made December 6, 1920. Although ignored by appellee in the calculation made by him, under his answer there is no doubt that it is to be credited according to the terms of the notes. Appellee’s computation, which entirely ignored the notes and was based on the assumption that appellee had borrowed $6,500 with interest at 6.44 percent payable annually, was plainly erroneous. Appellant, in arriving at the amount of credit to which appellee was entitled when the $2,500 was paid, properly determined the loan had still to run 26) years, 1 month and 25 days. According to the above interest tables, the present value of an annual payment of $1 for 26 years at 5 percent compounded annually is $14.375 which, multiplied by $494.97, the face of each note, amounted to $7,115.19. The note due February 1,1921, being the twenty-seventh note, was added, making $7,610.16, and this amount was discounted for 1 month and 25 days at the contract rate, the result being $7,552.46, the amount which on December 6, 1920, would have fully paid the notes discounted as provided therein. It must be remembered that this amount was not paid. To determine what portion or fraction thereof $2,500 would pay, the appellant, using that amount as a numerator and the amount then due, $7,552.46 as a denominator, multiplied the amount of the original loan, $6,500, and obtained a result of $2,153. It was thus determined that $2,153 equals that part of the loan which $2,500 would pay when discounted for 26 years, 1 month .and 25 days at 5 percent compounded annually. By further use of the above tables, it was determined the maker was entitled to a credit of $163.95 on each unpaid note. We need not go further into detail concerning this proof, all of which was contained in the deposition referred to. The court then heard testimony of another witness as to his conclusions concerning the meaning of the testimony in the deposition. Apparently the method of calculation was not clear to the court. There being no dispute as to the facts, however, the court should have made its own computation. We have checked the appellant’s computation and, while it is cumbersome, as a result, appellee got slightly more credit than he was entitled to, although it is possible the discrepancy occurred through use of a less complete calculating rate than we have used. Our calculation may be summarized as follows: The anniversary date of the notes is F'ebruary 1. In order to calculate as of even years, we find that payment of $2,500 on December 6, 1920, discounted at 5 percent, was equivalent to $2,398.79 on February 1, 1920, when twenty-seven notes of $494.97 remained unpaid. By reference to the above-mentioned tables, it will be found that on February 1,1920, a payment of $1, money being valued at 5 percent compounded annually, would be worth per year for twenty-seven years $0.06829186. This rate applied to $2,398.79, the value of the $2,500 payment at the beginning of the twenty-seven-year period, produces a result of $163.81, or the amount of credit appellee was entitled to on each unpaid note. It will be observed the appellant gave appellee credit for $163.95, or fourteen cents more per note. Hence, he was not hurt. And we observe that after the giving of the credit of $163.95, the appellee continued for eleven years to pay the notes as they matured annually, and all without complaint he had not received full credit. We find that the appellee received full credit for the payment of the $2,500 made on December 6,1920. As we understand appellee’s contention, he does not dispute the correctness of the appellant’s claim, once it has been determined he received proper credit for the $2,500 payment. Although our computation shows a slightly larger amount due, from the record it appears that when the action was commenced on May 23,1933, there was due $199.16 with interest at 10 percent from December 7, 1932, on the note due February 1, 1932; that there was due a balance of $331.02 on the note of February 1, 1933, with interest at 10 percent; and that there was due a balance of $331.02 on each of the remaining fourteen notes, which notes had a present value as of February 1, 1933, of $3,000.58 when discounted at the contract rate, with interest on that amount from February 1, 1933, at 6.44 percent, a total of $3,058.80, or a grand total of $3,607.59, with interest at 10 percent from May 23, 1933, and that when the action was tried judgment should have been rendered for that amount. The judgment of the trial court, insofar as it finds the amount due from appellee, Charles C. Stevens, to appellant is concerned, is set aside, and the cause is remanded with instructions to render judgment in favor of appellant and against appellee, Charles C. Stevens, as above indicated, and for foreclosure of the real-estate mortgage.	[ -16, 120, 16, -2, -102, 96, 42, -102, 73, -96, -77, 83, -23, -58, 20, 109, -58, 61, 117, 106, -123, -77, 54, 67, -46, -77, -15, -43, -75, -3, -12, 23, 76, 32, -62, -107, -26, -126, -63, 16, 78, -123, -87, -59, -7, 0, 48, 27, 80, 77, 17, 15, 99, 44, 29, 79, 72, 41, 123, 57, -48, -8, -117, -123, 93, 19, -109, 33, -108, 71, -56, 14, -104, 53, -128, -23, 126, -90, -106, 124, 75, 57, 44, 38, 102, 16, 65, 111, -40, -103, 46, -10, -99, -90, 19, 88, -126, 35, -68, -99, 116, 80, 7, 126, -18, -107, 24, -20, 13, -117, -44, -110, 11, 116, -103, -117, -25, -109, 32, 113, -52, -80, 92, 71, 59, -109, -50, -107 ]
The opinion of the court was delivered by Hutchison, J.: This was an action by the owner of a quarter section of land in Butler county against a number of oil companies to recover permanent damages occasioned to his farm by reason of the pollution of Turkey creek, which runs through his farm and supplies it, its occupants and livestock with drinking water and other natural uses and benefits. The petition alleges that the defendant companies have been engaged in drilling for and producing, marketing and storing oil and gas on land owned or leased by them and situated on the east side of Turkey creek and Cave Springs creek, a tributary of Turkey creek, about two or three miles above the land of the plaintiff. That the defendants while drilling oil and gas wells and operating them, and while marketing and storing oil and gas since about October, 1932, have wrongfully and purposely taken from such wells oil, gas, salt water and other refuse and poisonous substánces and deposited them on the surface of the earth into slush ponds and into Turkey creek and its tributaries and have permitted the same to escape, run, flow and circulate wherever the lay of the ground would carry such, and large quantities of such poisonous substances so permitted to escape did run and flow into Turkey creek and its tributaries and did thus go on, over and through the land of the plaintiff since October, 1932, and such will continue to pollute said creek and the land of the plaintiff as long as said leases are operated and oil and gas are produced thereon. That the water of the creek has been polluted and made unfit for use since October, 1932, and that trees on the premises have been killed and that it will be necessary to haul water and to keep the livestock away from the creek. By reason thereof the plaintiff alleges that this real estate has been permanently damaged, and he prays judgment therefor. This petition was filed May 8,1934. . The answer of the defendant was first a general denial and then it alleged: “. . . that if any cause of action ever accrued to plaintiff by reason of the allegations set forth in said petition, the same accrued more than two (2) years prior to the commencement of this action and therefore the same is barred by the statute of limitations in such cases made and provided, the same being section 60-306, paragraph number 3, Revised Statutes of Kansas.” In addition to oral testimony introduced, the testimony taken in a similar case brought by O. D. Sapp, owning land adjoining that of the plaintiff on the south, was by stipulation to be admissible, and parties also joined in submitting a very long stipulation as to the number and location of the wells drilled by each defendant company and the time when drilled and also the number abandoned. The trial court made extended findings of fact and found in favor of the plaintiff for the recovery of $450 for permanent damages to the land and $50 for the loss of trees. The defendants appeal, raising two questions: Does the record support the judgment for permanent injury to. real estate, and was plaintiff’s cause of action barred by the statute of limitations? Both parties accept the findings of the trial court. There is a confusion involved in the discussion of the law of the case as to the damages being permanent or temporary, and also as to the liability for damages for pollution being dated from the permanent structure of the plants, which by common knowledge may be positively expected to cause pollution and damage, or from the date of the first serious injury from pollution. There may, too, be an injustice in dating the liability from a time prior to the causing of substantial injury. The trial court expressed in its findings an apparent doubt along these lines, but held that as a matter of law whatever damages were here recoverable are permanent damages. This was certainly right, as the findings state that the tenant had previously been allowed damages for injury to crops, which were of course temporary damages and will not likely occur every year. But the fact, as found by the court, that the pollution may be greater one time than another does not make the damage to the land temporary. It is damaged, if at all, by that possibility of injurious pollution at any time depending, as the court finds, upon weather conditions, and particularly rainfall. There is another reason that, strictly speaking, eliminates this feature from the case entirely, and that is, the plaintiff in his petition has asked only for permanent damages. Therefore, the fluctuating casualties or change in weather conditions will not be a basis of right to recover, but at most could only be elements in estimating the amount of recovery. The court found there was permanent damage, and we think there was evidence sufficient to support such finding. The other question raised by the defendants in their answer and their appeal is more serious. That is the bar of the two-year statute of limitations. The appellee cites the testimony of two or more witnesses who stated that there was no indication of oil, salt water or pollution on plaintiff’s land until October, 1932, and that no damage was sustained thereon until that time. But the court finds that between 1917 and 1932 there were times when the water crossing plaintiff’s land was polluted and its purity and quality substantially lessened from what it had been before the discovery of oil in that vicinity. The seventh finding of the court is general, and recites what those acquainted with the development of oil and the results connected therewith may and must reasonably expect. The following are parts of finding No. 2, all of No. 4, a paragraph of No. 7 and all of No. 9: “When the water in Turkey creek on plaintiff’s land is flowing it will vary in width from a foot or two to thirty or foidy feet, and at such times will vary in depth from an inch or more to five or six feet in the deeper pools. . . . Before Turkey creek was polluted by oil and salt water it furnished, on plaintiff’s land, plenty of good water for all livestock kept thereon, but during dry periods it was sometimes necessary to change fences so that they could have access to the larger pools. . . . “About 1917 oil was first discovered in the basin that is drained by Turkey creek and Cave Springs creek. The defendant companies, or their predecessors in title, drilled over 100 producing oil wells in this area. The time of drilling these wells was scattered out through the years from 1917 down to about 1929. Perhaps half of them were drilled as early as 1925. About sixteen wells were abandoned before October, 1932, several since that time, and there were several other wells drilled which did not produce oil. . . . “The defendant companies, since they began operating their respective leases, have at all times permitted some refuse oil, fresh oil and salt water to escape from their leases and into the creeks. That is not peculiar to these defendants or this oil field. It is true of every oil field. But again the conditions must be looked to to determine whether or not the water on the farm of a lower owner is damaged. . . . “The court finds that there were times between 1917 and May 8, 1932, when the water in Turkey creek where it crosses plaintiff’s land was polluted to some extent and its purity and quality substantially lessened from what it had been before the discovery of oil. How long this condition continued to exist at any one time depended upon the rainfall and other conditions suggested in these findings. During that same period there were times when the water on plaintiff’s farm was substantially as good as it ever was, and suitable for farm and stock purposes. Also, while I am unable to find that it was always pure and wholesome during that period, yet livestock always drank it. Whether they failed to drink all they needed, or whether it was injurious to them, I am unable to determine. There was a stock pond on this land that was used some for watering livestock. In the late summer of 1933 there was water in the pond and the creek water was not needed. In the summer of 1934 the water in the creek on plaintiff’s land was so polluted that livestock would not drink it and they had to be driven off the farm for water. This was the first time that the water in the creek could not be used at all for stock purposes. In the early part of 1934 the fish died, and -this was the first time that this happened. The water was polluted in March, 1934, more than it ever was before or since. Beginning in the fall of 1933 about seventy-five trees growing along the banks died. At the time of the trial the creek water was being used for stock purposes and by reason of the many heavy rains in the fall of 1934 was substantially pure and wholesome, free from any substantial amount of pollution, and in as good condition as it had been at any time during the past four or five years. “There is no doubt that there will be times hereafter when the water in this creek on the plaintiff’s land will be again polluted and its purity substantially lessened from what it was before the discovery of oil. There is no doubt but what there will be times hereafter when said water will be substantially as pure as it ever was. As long as there is an oil field upstream from plaintiff’s land these changes will take place, and whether this water at any particular time will be pure, partially polluted or wholly useless will all depend upon the conditions.” The court in effect finds that the water on plaintiff’s land was polluted to some extent and its purity and quality substantially lessened from what it had been before the discovery of oil at times between 1917 and May 8,1932, and that it was unable to find, from the evidence that the water in Turkey creek was always during that period pure and wholesome, although the stock drank it. Dur ing such years it was found necessary to change the fences so as to have access to larger pools for stock purposes, but in 1934 was the first time that the water in the creek could not be used at all for stock purposes, yet in part of that time after heavy rains in the fall it was substantially pure and wholesome, and the court concludes that as long as there is an oil well upstream from the plaintiff’s land these changes will take place, and whether this water at any particular time will be pure, partially polluted or wholly useless will all depend upon conditions. The question is, When did the permanent damage or injury to the real estate begin? In the case of McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899, where the city of Cherryvale built a sewer system and discharged sewage into a creek, and an oil refinery drained waste water, acids, oil and other impurities into the same stream and polluted the waters to some extent from the very beginning, the extent of the pollution and injury depending upon the rainfall, it was held: “. . . that as the sewer system and refinery were, in their nature, design and use, permanent structures and their operation was necessarily a constant and continuous injury to the owner’s land, his cause of action for-permanent damages accrued when the sewage and impurities were first deposited in the stream, and not having been brought within two years from that time his action was barred.” (S'yl. If 2.) The case of Lackey v. Prairie Oil & Gas Co., 132 Kan. 754, 297 Pac. 679, was commenced in 1929 by the owner of pasture land against several oil companies where the pollution began in 1925 and steadily increased as the number of wells increased to twelve or fourteen. They were permanent structures designed to continue indefinitely, and it was held: “The proceedings considered in an action for damages for injury to pasture land resulting from pollution of a stream by oil, salt water, and refuse from oil wells, and held, the action was barred by the two-year statute of limitations.” (Syl.) The case of Gardenhire v. Sinclair-Prairie Oil Co., 141 Kan. 865, 44 P. 2d 280, is fully distinguished from this case by the following extract from the opinion on page 869: “While wells had been drilled in 1926, and some salt water had been discharged, but none that injured plaintiffs, it was well established that the salt water did not reach or injure plaintiffs until late in 1931 or the first months of 1932. When the wells were deepened salt water was developed in such quantities that the ponds provided did not care for it.” Another case in the same volume, Martin v. Continental Oil Co., 141 Kan. 37, 39 P. 2d 917, was decided upon an answer to a special question being inconsistent with the general verdict, the action'being for permanent injuries only by reason of pollution from oil wells. Another decision in the same recent volume, McMullen v. Jennings, 141 Kan. 420, 41 P. 2d 753, while not an oil-well pollution case, involves the same principle as to permanent damages, being an action to recover damages on account of atmospheric pollution with dust from a grain elevator which commenced in 1928 with sixteen upright .cylindrical concrete storage tubes or bins arranged in a double row with a frame gallery containing machinery for elevating the grain. Later twenty-four additional tubes were erected — all across the street from a row of dwellings, one of which belonged to the plaintiff, and it was held: “Where such a nuisance as mentioned continues, the cause of action for damages arises when the first injury is inflicted. . . .” “Where plaintiffs own evidence shows that the nuisance started with the first operation of the elevator and has since continued, varying only in degree as the operations covered the original plant with additions subsequently made thereto, the cause of action accrued as soon as it was determinable that there was nuisance as defined above, and not from the time the last additions were made to the plant.” (Syl. HU 5,6.) The case of K. P. Rly. Co. v. Mihlman, 17 Kan. 224, is cited, and pertinent quotations are made therefrom, but the closing paragraph of the opinion states that several propositions are discussed only because they are raised in the briefs, and the conclusion reached does not differ from the rule announced in the foregoing citations as to the statute of limitations. The defendant railway company had in 1866 dug a ditch on plaintiff’s farm without permission. It was to carry off water from the sloping land, and the company had inserted two culverts under the railroad connecting them with this ditch. Six years later, because these culverts and this ditch were unable to carry off all of the surface water, the plaintiff’s land was flooded and his crops were destroyed, but the court held: “Where A enters upon the land of B and digs a ditch thereon, there is a direct invasion of the rights of B, a completed trespass, and the cause of action for all injuries resulting therefrom commences to run at the time of the trespass. And the fact that A does not reenter B’s land, and fill up the ditch, does not make him a continuous wrongdoer and liable to repeated actions as long as the ditch remains unfilled. “After a wrong has been committed, it is the duty of the injured party to make reasonable efforts to prevent an increase or extension of th§ injury, and if lie fails to do so, be cannot recover for such increased injury.” (Syl. ¶¶ 1,5.) Several cases are cited to support the view that the statute, of limitations does not commence to run until the accrual of the cause of action or until damage has been sustained. Among them are the following: Dixon v. Oil and Refining Co., 116 Kan. 465, 227 Pac. 325; Beard v. Kansas City, 96 Kan. 102, 150 Pac. 540; Kinnard v. Stevens, 122 Kan. 347, 251 Pac. 1085; and Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P. 2d 953. In the Dixon case the statute of limitations was modified by the evidence of a contract made between the plaintiff and the oil company. In the Beard case the action was against the city for damages caused by an overflow of water from a heavy rainfall, although the city had nine years earlier graded a certain street and bridged the creek. The court distinguished the facts in this case from those in the Cherryvale case, and the case of Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631, in which it was either assumed or proved “that the improvements made in and of themselves damaged the party complaining,” and the court said in the opinion on page 105: “In the present case the improvements do no damage. The damage is caused by overflowing water.” In the case at bar it was definitely found by the trial court that the water has been polluted since 1917 and will continue to be polluted to some extent as long as there is an oil field upstream. The damage here, although occurring mostly during droughts and times of low water, is by no means caused by the drought or low water. The Kinnard case concerned the lien of a creditor on real estate prior to the obtaining of a judgment, and it was there held: “The statute of limitations does not commence to run against a cause of action until the accrual thereof and the accrual of the cause of action means the right to institute and maintain an action for its enforcement.” (Syl. ¶ 2.) As stated there, the time under the statute commences from the time of the right to institute and maintain an action. The Berry case was a recent oil-pollution case, and is cited only in reference to the holding made in the third paragraph of the syllabus, which is as follows: “Proof that damage to real estate will exist for an indefinite time is ample to sustain a.judgment for permanent damages.” (Syl. If 3.) There is no dispute along that line in this case. The trial court, in the finding last above quoted, found the pollution is likely to continue as long as there is an oil field upstream. We conclude that the cause of action of the plaintiff for the pollution of the water in the stream crossing his farm, resulting in permanent damages to his real estate, arose when the water in the stream on his farm first became polluted and not when drought or low water in the stream increased the seriousness of the pollution and the resultant damages. The findings of the trial court show the pollution to have commenced in 1917 and therefore this action brought in 1934 is barred by the statute of limitations. The judgment is reversed.	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The opinion of the court was delivered by Burch, C. J.: The action was one by taxpayers, for themselves and for others similarly situated, for relief against misappropriation of taxes paid under a void levy. A demurrer to one cause of action contained in the petition was sustained, and the taxpayers appeal. Formerly there existed in Pottawatomie county two rural high-school districts — -rural high-school district No. 1, known as the Louisville district, and rural high-school district No. 9, known as the Wamego district. The two districts consolidated, and the consolidated district was designated by the county superintendent as consolidated rural high-school district No. 1. In April, 1931, teachers contracted with the Louisville district to teach school for stated salaries for the term of nine months, beginning September 7, 1931. The consolidation occurred before September 7, the teachers were not employed by the consolidated district, they were unable to secure other employment, and they sued the consolidated district under their contracts with the old Louisville district. The teachers recovered, and the judgments were affirmed by this court. (Fuller v. Consolidated Rural H. S. Dist., 138 Kan. 881, 28 P. 2d 750.) The result was, the judgments were obligations of the consolidated district, precisely the same as if they rested on contracts made and broken by the consolidated district. The board of the consolidated district adopted the adroit scheme of marking the old Louisville district pay the teachers it had hired, by certifying to the board of county commissioners a tax levy for the year 1934 on property in the old Louisville district only, to pay the judgments, amounting to $4,566. Deceived by the certificate, the board of county- commissioners made the levy, and the county clerk extended taxes on the tax rolls of the old Louisville district accordingly. Taxpayers paid the first half of their taxes, in the sum of approximately $2,087, and the county treasurer placed the money in a fund designated as “old rural high school No. 1 judgment.” In March, 1935, taxpayers discovered what had occurred, and commenced action to thwart the design of the consolidated district board to make the property of the old Louisville district pay the debt of the consolidated district. The petition contained two causes of action. The first related to the fund in the hands of the county treasurer, and the second related to unpaid taxes. A demurrer to the second cause of action was overruled, but a demurrer to the first cause of action was sustained. A part of the relief sought was an injunction to prevent the county treasurer from disbursing the fund labeled “old rural high school No. 1 judgment,” to the consolidated district, and t-o prevent the consolidated district from receiving the money. A restraining order was issued at the commencement of the action. The restraining order was set aside when the demurrer was sustained, but a supersedeas bond was given, and the money is still in the hands of the county treasurer. The board of the consolidated district contends its action was justifiable under R. S. 10-119, providing that when a municipality is disorganized and the territory is attached to some other municipality, bonds and other indebtedness are to be paid by tax levies on the property of the disorganized municipality. The contention is without any merit. While the Louisville district was disorganized, the territory was not attached to anything. The Wamego district was also disorganized, and the two districts were consolidated to form a new district, pursuant to the special statute relating to consolidation. (Laws 1931, ch. 275.) The liability of the consolidated district was adjudicated in the case of Fuller v. Consolidated Rural H. S. Dist., 138 Kan. 881, 28 P. 2d 750, and the board of the consolidated district was without sem blance of power to shift the burden of the obligation, resting upon the entire district, to a disfavored part of it. It is a matter of common knowledge that taxpayers generally do not investigate the composition of the sums extended on tax rolls against their property. They go to the treasurer’s office, inquire the amount of their taxes, and pay. In this instance the taxpayers residing in the territory of the old Louisville district had no reason to think they might be bilked as they were, and of course they did not protest. The petition charges actual collusion and connivance on the part of the members of the consolidated district board to defraud the taxpayers of the old Louisville district. Proof of actual purpose to defraud is not necessary. The certificate of the clerk of the board establishes design to achieve the manifest end sought to be attained. The necessary effect would be to evade compliance with the judgment of this court in the Fuller case, and it must be said, the fund in the hands of the county treasurer was produced by what amounted to fraud in law, practiced on the unsuspecting taxpayers of the old Louisville district. The taxpayers moved promptly on discovery of the fraud. The fund is intact. The general finances of the consolidated district were not disturbed by impounding the money. The only injurious consequence was further to delay the long-suffering school teachers in obtaining their due. The tax was not merely irregularly levied or otherwise illegal. It was wholly void. The statutory remedies were not exclusive. Under the taxation statute there is still a field for exercise of its power by a court of equity. (Salthouse v. McPherson County, 115 Kan. 668, 670, 671, 224 Pac. 70.) It would be utterly unjust if the consolidated district were to profit by its indefensible course. Therefore, the court holds the general rule relating to voluntary payment of taxes does not obtain, and the county treasurer should be enjoined from paying over the fund to the consolidated district. As a consequence, the fund, which belongs to nobody else, should be distributed among those who contributed it. The judgment of the district court is reversed, and the cause is remanded with direction to overrule the demurrer to the first cause of action of the petition.	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The opinion of the court was delivered by Burch, C. J.: The action was one for damages consequent on sale by defendant to plaintiff of defective sheep skins. Plaintiff recovered, and defendant appeals. The action was tried by the court. No special findings of fact were requested or made. The court found generally for plaintiff. It was the business of the trial court to determine the credibility of witnesses who testified orally, and to size up fencing, equivocation and evasion. It was the business of the trial court to determine conflicts in the evidence. This includes discrepancies in the testimony of a particular witness and statements of a witness which would warrant differing inferences. It was the business of the trial court to draw plain inferences from the evidence, and to draw the proper inference from evidence when different inferences might be drawn. It was the business of the trial court to determine weight of evidence. The general finding draws to its support all evidence and all inferences from evidence which would tend to sustain it. The general finding cannot be disturbed by this court if sustained by any substantial evidence, even although there may be much evidence to the contrary. These settled principles of appellate practice in this state are rehearsed for the nth time for the benefit of counsel from abroad who do not seem to be familiar with important consequences of their application. Application of the principles will account for the brevity of this opinion in dealing with an abstract of over 500 pages, supplemented by an additional abstract and two counter abstracts. Wilson & Co. sells sheep skins taken from the carcasses of slaughtered animals, treated in a certain way, and kept in stock for sale to buyers in a form known as pickled skins. The shoe company buys pickled skins, tans them, and from the leather manufactures boots, shoes and footwear. Each company knew what the business of the other was. They had dealt with each other for a number of years previous to the year 1931, and Wilson & Co. had sold to the shoe company, for use in its business, twenty-five or thirty carloads of skins, comprising 40,000 to 50,000 dozen skins. In July and August, 1931, the shoe company bought of Wilson & Co. three carloads of pickled skins. Wilson & Co. knew the skins were bought by the shoe company to be made into leather, and the prices charged and paid were the prices of sound skins. The skins were delivered and were stored in the shoe company’s tannery until they were needed for the purpose of making leather. In the process of tanning the skins, to make leather, defects appeared which rendered most of the skins unsuitable for making leather. Wilson & Co. were notified. Skins apparently sound were sent by the shoe company to various reputable tanneries to be tanned, and the defects uniformly appeared. Skins purchased from other dealers were put through the tanning process with Wilson & Co. skins, apparently sound. The Wilson & Co. skins proved to be defective, while the others did not. A demonstration test of this kind was made in the presence of a Wilson & Co. tanning expert. On two occasions Wilson & Co. sent representatives to the shoe company’s tannery to investigate facts and conditions, and- there were conferences- between representatives of the two companies. In the course of the investigations and conferences, representatives of Wilson & Co. proposed causes of defects which might exonerate them from liability. Some of the proposed causes were abandoned. All of them, and others advanced at the trial, were eliminated by the evidence given at the trial. -After examination of skins which had been put through initial processes of tanning, the salesman for Wilson & Co. said those skins looked like glue stock to him. Glue stock consists of skins which are unfit for use and which are sold to glue mills. The result was, Wilson & Co. sold to the shoe company three carloads of skins, most of which were worthless to the shoe company. The shoe company sued for breach of warranty pursuant to custom of the trade, and breach of warranties implied by law. It will be necessary to consider but one kind of warranty implied by law. The first order was for “spring lambs” and the car was billed to the shoe company as “straight run lambs.” The order for the second car was for “current production take-off packer skins.” The car was billed to the shoe company as “straight run lambs.” The third order was for “current take-off packer pickled skins.” The car was billed to the shoe company as “straight run lambs sheep.” The skins were accepted and paid for as they were billed. All the skins were pickled skins, and there can be no dispute that pickled straight run lamb skins and pickled straight run lamb and sheep skins were bought and sold. Sample skins of the first carload were inspected at Wilson & Co.’s plant at the time of purchase. They looked like sound skins. Sample skins of the three carloads were inspected on arrival at the shoe company’s tannery. They looked like sound skins. There was abundant evidence that cause of defect did not originate after shipment, while in transit, or while in storage before tanning. The defects were discoverable only in course of the tanning process. That the defects might have been the result of treatment of the skins before shipment was well proved. Therefore, notwithstanding repeated assertions of Wilson & Co. to the contrary, the defects were latent defects. One of the implied warranties pleaded was that the skins were free from latent defects, not discoverable by inspection. The court does not propose to debate the question whether, under the circumstances, Wilson & Co. could, without liability, ship to the shoe company skins apparently sound, which, when put to use, proved to be valueless because of latent defects. The foregoing disposes of the merits of this case. It is contended evidence was improperly received. The whole record considered, liability of defendant was clearly proved by abundant competent evidence. No error affecting defendant’s substantial rights was committed in the establishing of damages, and the amount of damages was sufficiently proved. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Dawson J.: This is a proceeding in mandamus to compel the board of county commissioners of Leavenworth county to comply with an order of the public service commission which directed the county board to issue to plaintiff á tax-refunding warrant for $339.36, on the assumption that such sum was the amount in excess of the maximum which under a lawful levy could have been collected on plaintiff’s property and which plaintiff had paid under protest in December, 1926, and June, 1927. The particular tax under which the protested levy was made was for the support of the poor, and the merits of the action depend chiefly upon the proper construction of a statute enacted in 1911, and another in 1919. These appear in reverse order in the revision of 1923, thus: “39-340. Special county levies. That for the purpose of raising revenue to carry out the provisions of this act, relating to the care, support and maintenance of the poor and providing comforts therefor, within and without the county home or asylum for the poor, and for the purpose of relieving the general revenue fund of such counties of such expenditures, the board of county commissioners of any county are hereby authorized and empowered and they may levy an annual tax of not exceeding; five-tenths of one mill on the dollar, on all taxable property in their respective counties, in addition to other tax levies provided by law, for the purpose of paying such expenses necessarily incurred in providing for the support, care, and maintenance of the unfortunate inhabitants thereof, and all such expenditures for the care, support and ■ maintenance of the poor within and without the county home or asylum for the poor shall be paid from the funds so raised by said tax levy. (L. 1919, ch. 160, § 1; June 17.)” “39-342. Additional levies. The county commissioners of all counties in the state of Kansas having a population of not less than 39,000 nor more than 45,000, and in which counties there is located a city of the first class having a population of not less than 19,000 nor more than 25,000, are hereby authorized to levy upon all taxable property in their respective counties each year at the time for levying taxes for other purposes, a tax of one-half mill on the dollar, in addition to all other levies now authorized by law, for the support of the poor of the county and for such purpose only. (L. 1911, ch. 323, § 1; March 18.)” On the assumption that both these statutes are in force in Leavenworth county the county board levied seven-tenths of a mill as a “poor fund levy.” Plaintiff’s contentions are that the act of 1919 (R. S. 39-340) repealed the act of 1911; but if not, the latter act furnished the exclusive authority for levying a tax for the support of the poor in Leavenworth county, and that both statutes are not in force in that county. Plaintiff’s demand for a refund of the alleged excess being rejected, it brought a proceeding before the tax division of the public service commission (R. S. 79-1702), which held that the plaintiff’s construction of the pertinent statutes was correct, and made an order directing the county board to refund the excess as claimed. Part of that order reads: “The commission finds from the evidence before it in connection with this application that Leavenworth county, in 1926, levied 0.7 of a mill for the benefit of the county poor fund. The applicant sets out the fact that R. S. 39-340 provides for a maximum county poor fund levy of 0.5 of a mill, and, therefore, contends that the levy made is excessive and erroneous by 0.2 of a mill, which applied to the company’s assessed valuation in said county, for the year 1926, of $1,696,740, produces $339.35, with which the applicant holds it was erroneously charged. In defense of the levy of 0.7 of a mill the county authorities cite sections 39-340 and 39-342, each section providing for a county poor fund levy of 0.5 of a mill. The commission, having carefully considered the matter, makes the following findings: “Prior to 1911 the county poor fund was a part of and payable out of the county general fund; but by chapter 323, of the Laws of 1911, now section 39-342, R. S. 1923, certain counties were permitted to levy 0.5 of a mill for the poor fund in addition to the limit authorized for the county general levy. Later it appears that the legislature decided that all counties should be permitted to levy 0.5 of a mill for the poor fund in addition to the maximum levy for the county general fund, and enacted chapter 160, of the Laws of 1919, now section 39-340, R. S. 1923. It would not appear, however, that this later law would apply to the certain counties having authority to make a poor fund levy under section 39-342. While it is clear that for 1919 and thereafter it was the intention of the legislature that any county should levy 0.5 of a mill for the poor fund in addition to the general fund, giving to all other counties the same privilege which theretofore had been allowed only certain counties, the commission is of the opinion that it was not intended that certain counties should be permitted to make a levy under both laws. The commission finds, therefore, that the contention of the applicant that Leavenworth county, in 1926, erroneously levied 0.2 of a mill for the benefit of the county poor fund is correct; and that the refund of $339.35 should be granted.” The county board, persisting in its own interpretation of the statutes, declined to comply with the order of the commission; and an issue of law is now joined for our determination by defendants’ . motion to quash the alternative writ of mandamus issued on plaintiff’s application. It may help to solve the immediate question thus presented by taking note of the pertinent statutes governing tax levies for the support of the poor at the time the statute of 1911 was enacted. Sections 5541 and 5572 of the General Statutes of 1909 (R. S. 39-306, 39-334) authorized the county board to raise money for the support of the poor by taxation. This fund might be provided for in the general levy for current expenses (Comm’rs of Osborne Co. v. Blake, 25 Kan. 356) or by a separate levy (G. S. 1909, § 5572; Fields v. Russell, Sheriff, 38 Kan. 720, 722, 17 Pac. 476), the limitation upon which was simply the general provision for holding down the aggregate tax levies for all purposes (G. S. 1909, § 9394 et seq.; Comm’rs of Osborne Co. v. Blake, supra). The taxing power conferred by the act of 1911 was in addition to all other levies which could lawfully be made in 1911. It will not do to say that the act of 1911 conferred taxing power in addition to any other statutes which might thereafter be enacted— and particularly the act of 1919. The court is inclined to the view that by the act of 1919 the legislature recognized that the burden of supporting the poor was getting to be a problem in various parts of the state, and that it should confer upon all counties the same power to make a half-mill levy for the support of the poor that it had already conferred on Leavenworth county by the act of 1911; but the court holds that the preservation of both acts in the general revision of the statutes in 1923 does not indicate a legislative intention that Leavenworth county may levy taxes for the support of the poor under both statutes. It follows that defendants’ position is untenable; their motion to quash is denied; and plaintiff is entitled to judgment. The writ is allowed.	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The opinion of the court was delivered by Hopkins, J.: These cases (consolidated) present the question of the validity of assignments of life insurance policies executed by the insured, the policies being payable to his estate. The assignee prevailed and the administrator and heirs of the insured appeal. The facts are substantially as follows: On September 16, 1925, the Medical Life Insurance Company issued a policy on the life of John C. Spickler for $15,000 payable to his estate. Some time thereafter the Royal Union Life Insurance Company of Des Moines, la., took over the property and assets of the Medical Life Insurance Company and assumed its indebtedness and obligations. John C. Spickler was indebted to the plaintiff bank, and on September 16, 1926, executed an assignment of the policy above named to the bank so far as its interest may appear. The assignment reads: “In consideration of one and no lOOths dollars and other valuable consideration, the receipt of which is hereby acknowledged, I hereby sell, assign, transfer and set over unto the Shawnee State Bank, a corporation, of Topeka, in the state of Kansas, and its executors, administrators or assigns, as their interest may appear, all my right, title and interest in and to policy No. 5684, dated September 16, 1925, issued on the life of John C. Spickler by the Medical Life Ins. Co., subject to . . . and to all the terms and conditions in said policy contained. The interest of the assignee in the policy hereby assigned is limited to said assignee’s valid pecuniary claim against the assignor, existing at the time of settlement of the policy, the remainder of said policy, if any, being unaffected by this assignment; the said assignee hereby agreeing that in any settlement ■ of the said policy there shall first be deducted all then existing indebtedness to the company on said policy. “Witness my hand and seal at Topeka, in the state of Kansas, this 16th day of September, 1926. “Signed, sealed and delivered in the presence of witnesses. “Witnesses: D. Y. Elmore. (Signed) John C. Spickler." On October 22,. 1925, the Continental Life Insurance Company issued its policy on the life of John C. Spickler for $15,000 payable to his estate. Spickler, on September 29, 1926, assigned this policy to the bank as its interest might appear. On October 8,1926, Spickler died. On September 15, 1927, the plaintiff bank filed its claim in the probate court against the estate of John C. Spickler for $49,933. Notice was given to the administrator that the claim would be presented for allowance on September 27, 1927. On that date the plaintiff appeared, proved up its claim and had the same allowed for the amount specified. Before filing its claim, the plaintiff on January 4, 1927, filed its petitions against the Royal Indemnity Insurance Company and the Continental Insurance Company, respectively. The administrator and the insurance companies were made defendants. The insurance companies filed affidavits admitting liability on the policies in the full amount thereof, less one year’s premiums which they claimed to be due, and offered to pay the money into court. They also asked that Mabel F. Spickler for herself and as guardian of Marjorie Mae Spickler, a minor, heirs of John C. Spickler, deceased, be made parties. This was accordingly done. The administrator answered by general denial and that there was no «consideration for the assignments by the deceased to the plaintiff. He also filed a plea in bar in which he alleged the filing and allowance of plaintiff’s claim in probate court; and that the judgment of the probate court was final and res judicata of plaintiff’s cause of action in this case. Mabel Spickler and Marjorie Spickler filed answers in which they alleged that the plaintiff by filing and securing judgment on its claim in probate court waived its right to proceed in the instant case. The issues having been made up, the administrator and the defendants Spickler filed motions to determine questions of law. (R. S. 60-2902.) The court upon consideration of the motions found that the executors, administrators and assigns-named in the insurance policies are and have been at all times the beneficiaries thereof and that the rights of the plaintiff to prosecute its cause of action were not barred by reason of having proved its claims against the estate of the deceased in the probate court. Later, upon a trial, the court made and filed its conclusions, which in part read: “The court adheres to the former rulings that the policies in question were written for the benefit of the estate of John C. Spickler, and also that these actions are not barred by the proof of claim made by plaintiff in the probate court. “The claims of the plaintiff, under the two policies, are not affected or invalidated because of the fact that the policies were not delivered to plaintiff, or because the assignments were not indorsed on the policies. . . . “The judgment of the probate court establishing plaintiff’s claim against the estate of Spickler, as well as the proof introduced on the trial of these cases, conclusively shows that Spickler was indebted to the bank in an amount in excess of the face of the policies at the time the assignments were made. . . - . “A claim of the defendants in this case requiring serious consideration is that the deceased John C. Spickler was not mentally competent to execute the assignments in question and that they were procured under the circumstances, by undue influence. . . . “Taking all of the evidence together, it is impossible to conclude that there was either undue influence exercised or that there was incapacity on the part of Spickler to understand and know what he was doing at the time of the execution of the assignments. “It was said in the oral argument that the most equitable adjustment of the affairs of John Spickler, deceased, would be reached by the payment of the insurance money involved in these two actions into the general estate of the deceased for distribution through the probate court according to law. Particularly it is said that labor claims ought to be paid. With this I agree. But if the Shawnee State Bank has acquired a right to this fund under the facts and the law, the court is bound to so hold. Its claim is not wanting in equity/ Apparently it furnished the funds which kept the business of John Spickler going for a considerable time. Out of the funds it advanced doubtless many labor claims have been paid, and perhaps machinery bought. Several parties have apparently become liable to the bank as sureties for the debts of Spickler. If the money from the two insurance policies shall be applied to those claims, the sureties will be relieved to some extent thereby. This consideration does not furnish a reason for a decision in favor of the plaintiff, but it is not without some value in view of the argument made on behalf of the defendants. How many labor and other claims exist against the Spickler estate does not definitely appear, but doubtless the estate is seriously insolvent. “Another matter that might be mentioned in this connection is that it appears from the evidence that by reason of the advancements made by the plaintiff to the deceased, he had promised to furnish the security of the insurance policies as early as the winter of 1926, and several times thereafter. On April 24, 1926, he had executed a written request to the Continental Life Insurance Company to change the beneficiary in the policy with that company to the Shawnee State Bank. On September 2, 1926, he had executed an assignment to the Shawnee State Bank of both of the policies in question. These assignments not complying with the requirements of the two insurance companies he executed the assignment sued on, one on September 16, 1926, and the other on September 29, 1926. No doubt the object of Spickler in taking these policies was, to a large extent, to protect his business and his credit. His former promises, and the execution of the request for the change of beneficiary in the one case, and his execution of the assignments of September 2, 1926, not only show his intention regarding the two policies involved in this action, but bear strongly on the matter of alleged undue influence and his understanding of the full purport and meaning of the assignments sued on in the two actions. He must indeed have been in a mental condition far worse than that shown by any evidence introduced on the trial if he did not know precisely what he was doing. “In accordance with the views expressed, judgment will be rendered in the two cases in favor of the plaintiff bank.” The administrator contends that the change of beneficiary was not indorsed upon either policy. The plaintiff answers the contention by suggesting that it is not claiming as a beneficiary, but as an assignee. Each of the policies expressly recognized the right of the insured to make an assignment. The assignments were executed in duplicate, both copies sent to the company, one copy retained by the company and the other returned to the assignee. This was in accordance with the requirements of the policy. It is well established that policies such as these may be assigned by the insured during his lifetime. “Where the policy is payable to insured, or in the event of his death to his personal representatives, insured may assign the same, unless the assignment is prohibited by statute, by settled rules of public policy or'by provisions in the contract of insurance itself.” (37 C. J. 423, § 124.) “On the other hand, where the right to change the beneficiary has been reserved in the policy, so that the beneficiary does not have a vested right or interest, it is held that insured has complete control and domination of the policy; that his reserved right to change the beneficiary includes the lesser right partially to affect the rights of beneficiary by assigning or creating a lien on the policy; and that he may do directly what he might do after having changed the beneficiary to himself or his estate.” (37 C. J. 581, § 346.) “It would seem clear that the insured may assign the policy where he has reserved the right to ohange the beneficiary.” (14 R. C. L. 998.) “A- policy payable to the insured himself or to his ‘assigns,’ ‘executors,’ ‘administrators’ or ‘legal representatives’ may be assigned by the insured without the consent of any other person.” (2 Cooley’s Briefs on Insurance, 1804.) “Insured, in a life policy made payable to his executor and administrator, has authority to pledge the same for an existing debt.” (N. Y. Life Ins. Co. v. Kansas City Nat. Bank, 121 Mo. App. 479, 97 S. W. 195; see, also, 7 Cooley’s Briefs on Insurance, 6525, 6526; Joyce on The Law of Insurance, 2d ed., §§ 2336a, 2338; 37 C.J. 571.) We conclude that since the policies were payable to the estate they could be controlled by the insured during his lifetime either by designating a new beneficiary or by assignment, such as that under which plaintiff now claims. The administrator contends'that the assignment by Spickler to the bank was conditional, and that the only valid pecuniary claims against Spickler were three notes in the sum of $11,675. The evidence showed, and the court found, that the indebtedness of Spickler to the plaintiff bank, with interest, amounted to $49,933. In fact, the administrator in his answer pleaded the judgment of the probate court of that amount in bar of plaintiff’s cause of action in the instant case. The administrator contends that the court erred in admitting testimony of'the officials of the bank as to transactions and conversations between themselves and Spickler. The question was fully considered by the trial court. Its ruling is so clearly sustained by the authorities that we quote the trial court’s opinion touching this phase of the case: “It is claimed by defendants that the bank officers and stockholders were incompetent witnesses.- In the syllabus in the case of Mendenhall v. School Dist., 76 Kan. 173, 90 Pac. 773, it is said that the old provision of the code ‘applies only to a party to a suit, and does not exclude the officers of a corporation which may be a party or other interested persons not parties to the action.’ It is true that the corporation in question was not a business corporation. However, the cases cited in the opinion at page 176 from California, Maryland, New Jersey and Wisconsin hold that officers and stockholders are not disqualified. “In 40 Cyc. 2290, it is said: “ ‘Where the statute in terms excludes only parties to the action, an officer, member or stockholder of a corporation which is a party is competent.’ (Citing decisions of the states already mentioned, and also Kansas, Missouri, Ohio and Texas.) “The paragraph quoted from Cyc. then goes on to say: “ ‘But a statute excluding persons interested in the result applies to officers, members or stockholders of a corporation or association which is a party. Some statutes expressly disqualify officers and stockholders of a corporation which is a party.’ “In support of the last statement, cases are cited from Kentucky, West Virginia, Georgia, New York, Nebraska, Illinois, Alabama, Iowa, Minnesota, North Carolina and Pennsylvania, although late Georgia oases are cited to the contrary. “In Collins v. Hayden, 104 Kan. 351, 179 Pac. 308, and cases cited, the word ‘person’ used in the amendment of the code seems to be given the same meaning as the word ‘party’ in the old code. It is- said in the opinion in that case: “ ‘In a doubtful case, this court' inclines to an interpretation of the statute that will admit rather than reject evidence.’ (Citing two Kansas decisions.) “In the case of Carroll v. Chipman, 8 Kan. App. 820, it is held that an agent of a party to an action was not disqualified as a witness under the old section of the code. A petition for order to certify this case was denied by the supreme court. “In an extended note to Cockley Milling Company v. Bunn, 75 Ohio State, 270, holding a general manager of a corporation not disqualified as a witness under the Ohio statute, appearing at page 181 of volume 9 Ann. Cas., it is said that under the statute disqualifying a party, ‘it has been held that the officers of a corporation are not incompetent to testify as to transactions or communications with the decedent in an action to which the corporation and the executor or administrator of the deceased are parties.’ (Citing many of the cases already referred to, including Mendenhall v. School Dist., 76 Kan. 173, 90 Pac. 773.) From the same note it appears that where the statute disqualifies a party in interest or a party to a contract, the rule is different. The rule is also stated in 28 R. C. L., page 507, section 94. “In Central Main Hospital v. Carter, 132 Atl. 417, 44 A. L. R. 1333, it is held that incorporators or officers of a charity are not disqualified. “In the case of Darby, Adm’r, v. N. W. Mutual Life Ins. Co., 239 S. W. 68, 21 A. L. R. 920, it is held that an agent of an insurance company is a competent witness. In a note to this case appearing in 21 A. L. R. 928, it is said that an agent of a surviving party is generally held not to be competent to testify as to transactions with a deceased person. Under this rule, Mrs. Tillie Holtwick Acker, the agent of the plaintiff bank, would be a competent witness. “Under the authorities cited it must.be held that the officers and stockholders of the plaintiff bank were not disqualified in this case. However, it is my judgment that if all the evidence of the officers and directors of the bank were held to come within the prohibition of the statute, the finding of the court in this case would have to be the same.” On the part of the defendants Spickler it is contended that plaintiff’s petition did not allege that the beneficiaries in the policies had been changed, as provided by the terms and conditions of the policies. What has heretofore been said with reference to the assignments we think answers this contention. It was not necessary under the circumstances that there be a change of beneficiaries. In neither of the policies were the defendants Spickler named as beneficiaries, nor do they claim to be assignees thereof. It appears that the application of the Continental policy in one paragraph requested that Mabel F. Spickler be made the beneficiary, but a later paragraph provided that the beneficiary be changed to the executors, administrators or assigns of the insured; there was also a provision that retention of the policy corrected according to notations made therein should constitute a ratification • of such changes or corrections. The policy written in accordance with this latter provision was accepted and retained by the insured and premiums paid thereon. The general rule appears to be that a policy payable to the estate of the insured or to his executors, administrators or assigns becomes a part of his estate. In 37 C. J., p. 565, § 322, it is said: “Ordinarily the proceeds of a life insurance policy are payable to the executor or administrator of insured as assets of his estate where by the terms of the policy the proceeds are payable to insured, his estate, his legal repre sentatives, his executors or administrators, his ‘executors, administrators or assigns,’ or even his ‘heirs, executors, administrators or assigns.’ ” In 37 C. J., p. 604, § 389, it is said: “Except where it is otherwise provided by statute, the insured’s legal representatives, and not his legal heirs, arej generally the proper parties to sue on a life insurance policy, which is payable to insured or his estate or which, although payable to a certain person, is duly assigned to insured or his estate, or which does not expressly promise to pay anyone.” In 14 R. C. L. 1372 (citing Hunt v. Remsberg, 83 Kan. 665, 112 Pac. 590) the rule is given as follows: “While there is some authority to the effect that ‘legal representatives’ means the persons entitled to the estate of the insured, and not his executor or administrator, the better view is that ordinarily the proceeds of such a policy pass to his executor or administrator.” The defendants Spickler say in their brief that what is wanted by this appeal is an interpretation of these insurance policies, the effect of assignments and how they are made, and how a beneficiary is created and changed, and what is a vested interest and the like. They argue that the heirs have at the very least an equitable title to the beneficial fund, and if there are no debts against the intestate then the heirs have full legal and equitable title. This latter statement, with its qualifications, may of course be conceded. The difficulty is that the intestate had debts, and according to the terms of the contracts with the insurance companies assigned the policies in question to the plaintiff. The Spicklers contend that “where there are no debts against an estate the statute (R. S. 40-327) steps in and says that this money cannot be used for the purpose of paying insured’s debts.” The provisions of the cited statute are not applicable here for the reason that the policies in question provided for payment to the insured’s estate and were assignable. Numerous questions are argued in the briefs which have been given due consideration, and which if discussed here would unduly lengthen this opinion, could not change the result, and would serve no good purpose. We are of the opinion that the trial court reached a correct conclusion. The judgment is affirmed.	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The opinion of the court was delivered by Dawson, J.: This was an action on an account for attorneys’ services and expenses. Plaintiff showed a bill of itemized debits totaling $4,946.18 and itemized credits aggregating $1,954.76, and judgment was awarded him for the balance due, $2,991.42, with interest thereon from the date when the action was begun. Defendant appeals, assigning two errors, the first of which relates to the admission of testimony by plaintiff that he had given defendant credit for a somewhat larger amount than he was actually entitled to, because plaintiff wanted to keep the amount in controversy below $3,000 so that the action could not be removed to the federal court. This testimony was not improperly received, because the matter was partly developed by the defendant himself in cross-examination of plaintiff. Having opened the subject, defendant could not fairly object to a complete explanation of the incident. But aside from that, a litigant may choose his forum to suit himself, and his adversary has no justiciable grievance thereat if the forum so chosen has jurisdiction of the parties and the subject matter; and no man prejudices his cause by suing for a less amount than is actually due him. In Dubbs v. Haworth, 102 Kan. 603, 606, 171 Pac. 624, it was said: “It is not required of a creditor that he shall demand the uttermost farthing which may be technically due him. He may be satisfied with less than his just due; . . . Modesty of demands is ordinarily a virtue, not a fault.” See, also, Fuller v. Wright Bros., 106 Kan. 676, 680, 189 Pac. 142. The second error is based on the allowance of interest from the date the action was begun. The verdict of the jury was silent on the matter. However, it is settled law in this jurisdiction that where the amount due is upon contract express or implied, and there is no uncertainty as to the amount due, or as to the time when it was due, the omission of the jury to compute and allow interest is not fatal to its allowance. The court itself can compute and add it to the verdict and give judgment accordingly. (Farmers State Bank v. Crow, 126 Kan. 395, syl. ¶ 9, 267 Pac. 1100.) The 'judgment is affirmed.	[ -110, 104, -8, 126, -118, 96, 40, -118, 85, -63, 55, 83, 105, -61, 20, 123, -16, 121, 112, 98, 69, -77, 39, 67, -10, 50, -72, -59, -79, -51, -28, -36, 77, 48, -62, -107, 103, -54, -123, -44, -114, -122, -87, 68, -7, 66, 112, 57, 22, 10, 49, -50, -13, 42, 57, -53, 105, 44, 127, 121, -48, -16, -50, 13, 95, 17, -79, 38, -100, 78, 72, 44, -112, 59, 1, -55, 122, -74, 2, 116, 43, -71, -83, 110, 98, -95, 49, -54, -4, -103, 38, -34, -97, -89, -110, 88, 11, 13, -74, -100, 101, 20, 6, -4, -8, 29, 25, 109, 19, -34, -12, -110, -115, 118, -102, -117, -17, -109, 16, 97, -51, -30, 92, 71, 58, -109, -114, -100 ]
The opinion of the court was delivered by Johnston, C. J.: This appeal involves a claim held by defendants, M. C. McCabe and Son, against the estate of Galen B. Parsons, deceased, who died August 7, 1917. On August 25, 1917, Louis Leach Parsons, the plaintiff, was appointed administrator of the estate of the deceased. McCabe and Son, who had sold an automobile to Galen B. Parsons, in his lifetime, and upon which a part of the price was due when he died, presented their claim for allowance to the probate court and on May 15, 1919, the court allowed the claim to the extent of $207.73, and classified it as a fifth-class claim. No payment was made on the allowance nor had the administrator made any accounting of his administration from his ap pointment in 1917 up to November '14, 1923, when McCabe & Son filed a motion in the probate court to require the plaintiff to show why its claim was not paid, and also to make an accounting of the administration. On December 18, 1923, the- administrator filed an account, to which defendants filed exceptions stating that claims not allowed had been paid, that some claims of the fifth class had been paid in full, by the administrator, whereas other claims of the same class had not been paid, and further, that the administrator had received $340 from the sale of the automobile which had been sold by defendants to Galen B. Parsons, the price of which had-not been fully paid, when he knew there was a mortgage on the automobile and had not applied the money received to the payment of the mortgage indebtedness. This motion came on for hearing before the probate court on January 14, 1925, and after hearing the evidence the court took the matter under advisement. On January 10, 1927, the court gave judgment for defendants, sustaining their exceptions and ordering the administrator to pay the claim of defendants in the sum of $302 and the costs of the proceeding. No appeal was taken from this order, but on November 2, 1927, plaintiff filed a petition asking the court to set aside the order made on January 10, 1927, upon the ground that it was rendered without notice and therefore void, that, fraud was practiced by the defendants in obtaining the order, and further that the defendant had agreed to accept a smaller amount than the court ordered to be paid. To this application the defendants filed a demurrer alleging that the administrator had failed to set forth any valid grounds for the relief sought, and that the probate court did not then have jurisdiction over the subject matter of the petition. On this demurrer the' court on November 21, 1927, sustained the petition and overruled the demurrer of defendants, and at the same time made an order vacating the previous order of January 10,1927, directing the payment in full of the claim of defendants. From this decision the defendants appealed to the district court. That court on December 22, 1927, considered the appeal and held that the petition of the administrator should be sustained in part and overruled in part. It adjudged that the order .of the probate court vacating the order of January 10, 1927, be reversed and that the order made on January 10, 1927, directing the payment of defendants’ claim be affirmed except as to the direction of payment in full. From that decision the administrator appeals to this court. Plaintiff contends that the judgment of the probate court of January 10, 1927, allowing and classifying the claim of defendants, was not regularly or legally done and that the district court erred in overturning the subsequent order of the. probate court setting aside the former allowance and order. On its face the judgment of January 10, 1927, was valid. The probate court is a court of record which has primary and complete jurisdiction over the estates of deceased persons. (Hudson v. Barratt, 62 Kan. 137, 141, 61 Pac. 737.) Its orders and judgments rendered within its jurisdiction are as conclusive as those rendered by the district court. (Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86; Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435.) Its judgment is subject to appeal within thirty days, and when as in this case no appeal is taken the judgment is binding on the parties. The court having jurisdiction of the matter, its judgment cannot be regarded as void and is not open to attack for irregularities if any existed. The presumption is in favor of the regularity of the proceedings in the court. (Howbert v. Heyle, 47 Kan. 58, 27 Pac. 116; Higgins v. Reed, 48 Kan. 272, 29 Pac. 389.) The claim of defendants having been allowed and an order of classification made, the result when entered of record had the force of a judgment which in the absence of an appeal must be treated as a final adjudication. (Baker v. Webster, 106 Kan. 326, 187 Pac. 870, 1119.) The judgment of the district court holding the first judgment of the probate court to be a binding adjudication was not erroneous. The defendants in their brief suggest that the probate court erred in a modification eliminating the words “in full” from its judgment, affirming that of the probate court made on January 10, 1927. No cross appeal was taken by defendants from the judgment of the district court, but if we treat the suggestion in the brief as a cross appeal it appears that they cannot be prejudiced from the action of the district court. If there are not sufficient assets in the estate to pay all claims of the class mentioned in which their claim is placed, there would necessarily have to be an apportionment among the creditors in that class. On the other hand, if there are sufficient funds in the estate to pay all claims, payment in full will of course be made by the administrator. No modification of the judgment in that respect is necessary. The judgment is affirmed.	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The opinion of the court was delivered by Marshall, J.: This action is one to recover money that had been paid by the plaintiffs to the defendant on a note secured by a real-estate mortgage which had been given by Earl E. Whitcraft and Mary H. Whitcraft to the defendant in the sum of $5,000, and which had been assigned by the defendant to W. L. Johnson. Judgment was rendered in favor of the defendant on her demurrer to the evidence of the plaintiffs, who appeal. The action was tried by a jury. At the conclusion of the evidence the defendant demurred thereto, which demurrer was sustained by the court. Then, at the request of the plaintiffs, the court made findings of fact as follows; “1. The court finds that on the 20th day of January, 1925, Earl E. Whitcraft and M;ary H. Whitcraft, his wife, executed and delivered their promissory note in writing whereby for value received they promised to pay to Minnie B. Haas, the defendant, five years after date, the sum of five thousand dollars, with interest on the same at the rate of six per cent per annum; that to secure said note the said Earl E. Whitcraft made, executed and delivered a mortgage deed to the said P. M. Haas, defendant, on the following-described real estate situate in Jackson county, Kansas, to wit: The south half of the northwest quarter of section one (1), township six (6), of range fifteen (15); that the said mortgage was duly filed in the office of the register of deeds of Jackson county, Kansas, and duly recorded in book 82 at page 601 in said office. “2. That P. M. Haas, the husband of said defendant Minnie .B. Haas, negotiated this loan and transacted all of the business connected therewith as the duly authorized and acting agent of the said defendant Minnie B. Haas; that said promissory note provided that any part of the principal of said note could be paid by the makers thereof at any interest-paying time, principal and interest payable at the office of P. M. Haas, Holton, Kan. “3. That the note and mortgage heretofore described was a renewal of a note and mortgage dated January 2, 1920, for the same sum given by Earl E. Whitcraft and his wife to Minnie B. Haas; that Earl E. Whitcraft had at all times paid the interest on said mortgage to P. M. Haas, at his office in the city of Holton, Kansas, and renewed said note and mortgage so given to Minnie B. Haas at said office. “4. That on the 11th day of March, 1925, Earl E. Whitcraft and Mary H. Whitcraft sold and conveyed by warranty deed the above-described real estate to W. J. Blair and Alma L. Blair, subject to the mortgage to Minnie B. Haas, for $5,000, which the grantees assumed and agreed to pay. • “5. That on the 18th day of March, 1925, the said defendant, Minnie B. Haas, made a written assignment on the back of said mortgage to W. L. Johnson of Atchison, Kan., which assignment was acknowledged before P. M. Haas, as notary public, and was filed for record on the 22d day of May, 1925, in the office of the register of deeds, of Jackson county, Kansas. “6. That the evidence did not disclose that the plaintiffs, W. J. Blair and Alma Blair, had any actual notice of the assignment, but had constructive notice by reason of its assignment being recorded in the office of the register of deeds of Jackson county, Kansas. “7. That' on the 14th day of January, 1926, the plaintiff, Alma L. Blair, paid to P. M. Haas personally as a part payment upon said' mortgage the sum of $1,000, and he receipted therefor in the name of P. M. Haas, and the receipt contained the following: ‘Said check-draft has been deposited for collection and as soon as paid you will receive the proper credit. A credit of $1,000 is indorsed on the principal of your loan, and the canceled coupon will be mailed to you as soon as received from the mortgagee.’ And that at the time tire payment was made P. M. Haas did not have in his possession the note referred to, nor the coupon, but the same was in the possession of W. L. Johnson, the owner, at Atchison, Kan.. “8. That on the 29th day of March, 1926, the plaintiff, Alma L. Blair, paid to P. M. Haas at his office in Holton, Kan., as a part payment on said note and mortgage the sum of $700, and received a receipt therefor as before, signed P. M. Haas; that on February 19, 1927, the plaintiff Alma L. Blair paid to P. M. Haas, at his office in Holton, Kan., as a part payment on said note, the sum of $1,000 and received a receipt for the same stated ‘payment on Earl E. Whitcraft mortgage, No. 1264,’ and signed P. M. Haas, by Kendall M. Haas. That the said Kendall M. Haas was the son of P. M. Haas. At the time said payments were so made the note and mortgage in question was in the hands of its owner, W. L. Johnson, at Atchison, Kan. “9. That W. L. Johnson, the assignee, and holder of the note and mortgage when the payments were made, did not receive any of the aforesaid sums of money paid to P. M. Haas on the prinicpal; that W. L. Johnson did not know P, M. Haas, and had never had any direct dealings with him; that W. L. Johnson had received the note and mortgage from Charles Ratterman in Atchison, Kan., and Mr. Ratterman also paid the interest when received to W. L. Johnson; that W. L. Johnson did not know that any payments had ever been made by the Blairs on the principal; that he'had received two interest payments, one January 23, 1926, and the other on February 21, 1927, and Haas was not at any time his authorized agent for any purpose. ‘TO. That the said P. M. Haas has been negotiating loans for his wife Minnie B. Haas for a long period of time, and in the last three years has taken and filed for record thirty-five of such mortgages, including the Whit-craft mortgage, in the office of the register of deeds of Jackson county, Kansas, he, P. M. Haas, always delivering the same to the recorder, paying the fees and receiving the same after recording. The evidence does not disclose that Mrs. Haas ever had any of such mortgages in her possession or under her control, not that she paid anything therefor, or received anything on account thereof, but was aware that the said P. M. Haas was so using her name. “Conclusion of Law. “The evidence fails to show a cause of action in favor of the plaintiffs and against the defendant, and the defendant is entitled to judgment for costs.” The plaintiffs, for reasons beyond their control, have been unable to procure a transcript of the evidence. To supply that evidence the plaintiffs submit the findings of fact by the court, which, the plaintiffs state, correctly reflect the evidence that was submitted. That statément is not challenged by the defendant. We have then this situation: The defendant, represented by her husband, P. M. Haas, acting as her agent negotiating the loan to the Whitcrafts, which loan was afterward assigned by the defendant to W. L. Johnson, and after that assignment the defendant, through her agent, knowingly accepted from the plaintiffs payments to be applied on the loan. When the payments were made the defendant knew that she was not entitled to receive the money, knew that it was being paid to her by mistake, and thereafter deliberately retained the money and refused to return it to the plaintiffs. The rights and obligations of the plaintiffs and of W. L. Johnson as between themselves are not involved in this action and are not considered. In 30 Cyc. 1320 it is said: “Where money has, by mistake of fact, been paid to the wrong person, it may be recovered back.” In 41 C. J. 50 the following language is used: “An action for money had and received is the proper form of action for the recovery of money paid under a mistake of facts.” In 2 R. C. L. 784 the law is declared to be: “It is equally well established, however, that if money is paid under a mistake of the facts it may be recovered back in an action for money had and received; it being considered unconscionable that money so paid should be detained from the payor.” In Kansas City v. Construction Co., 86 Kan. 213, 120 Pac. 347, this court said: “Where a city, by mistake, issues its warrants for an amount in excess of that due a construction company and pays the warrant to an indorsee the city may recover the overpayment from the construction company.” (Syl. If 1.) The rule that money paid under mistake of fact can be recovered was followed in Noble v. Doughten, 72 Kan. 336, 83 Pac. 1048. The judgment is reversed and the cause remanded to the district court for a new trial.	[ -48, 106, -80, -3, 74, 96, 42, -104, 96, -127, -76, 83, 105, -62, 5, 125, 54, 61, -16, 105, -41, -77, 7, -54, -46, -13, -5, -35, -71, 93, -28, -42, 76, 48, 74, -99, -26, -62, 69, 24, -114, -91, 41, -28, -43, -32, 48, 123, 16, 72, 113, -113, -13, 40, 29, 70, -23, 46, 123, -71, -48, -80, -118, -121, 127, 18, 17, 53, -100, 71, 72, 46, -104, 113, 0, -23, 123, -74, -58, -12, 97, -101, 12, -90, 102, 51, -91, -17, -8, -100, 46, -9, -99, -89, -109, 88, -125, 33, -66, -100, 127, 80, 3, 116, -18, -107, 29, 109, 3, -117, -106, -109, 15, 54, -101, 10, -1, -121, 32, 100, -51, 34, 93, 71, 120, 59, -113, -75 ]
The opinion of the court was delivered by Wedell, J.: This was an action in the nature of a creditor’s bill to set aside certain alleged fraudulent conveyances and to subject the property to the satisfaction of plaintiff’s claims allowed in the probate court. The trial court set aside the conveyances and directed the real estate be subjected to the payment of claims of creditors against the estate. From that judgment defendants appeal. The parties made defendant were: Sarah P. Mitchell, an individual (widow of deceased) ; Sarah F. Mitchell, executrix of the estate of R. F. Mitchell, deceased; and the five Mitchell children, all of whom were adults. The trial court made findings of fact as follows: 1. “That on December 11, 1931, R. F. Mitchell and Sarah Mitchell, his wife, made, executed and delivered their certain warranty deed to Sarah Mitchell, the wife, one of the defendants herein, to the real estate involved herein and set out in plaintiff’s petition, situated in Jefferson county, Kansas, which deed was recorded in the office of the register of deeds of Jefferson count3', Kansas, on December 12, 1931. 2. “That R. F. Mitchell died about three weeks after the execution and delivery of said deed. 3. “That at the time of the execution of said deeds to Sarah Mitchell, the said R. F. Mitchell owed the Potter State Bank, the plaintiff herein, the sum of 82,900 and interest on a promissory note which was not due at that time. The evidence fails to disclose the date of maturity of said note. 4. “That said sum of $2,900 was all that the said R. F. Mitchell owed said bank at the time of the transfer of title to said real estate. 5. “That on the 1st day of July, 1930, R. F. Mitchell signed a financial statement for the Farmers State Bank in which he listed his assets as follows: Personal property; Cash on hand in bank.;....................................... $400.00 Bills receivable ............................................... 3,500.00 Bank Stock and Bldg, and Loan................................ 3,000.00 Real estate: 393 a. in Jeff, and Leaven. Co.................................. 39,300.00 House in Potter............................................... 3,000.00 Equity sin 361 a............................................... 5,000.00 $54,200,00 Liabilities: Farmers State Bank............................................ 83,000.00 Notes payable (unsecured) .................................... 2,000.00 $5,000.00 Net worth .................................................$49,200.00 6.“After the death of the said R. F. Mitchell, administration was taken out of his estate in Atchison county, Kansas, and. the following assets listed: Personal property consisting of corn, wheat, oats, hay, wood, Ford car and desk .................................................. $624.25 Other property consisting of 20 shares of bank stock, estimated value .......................................................... 2,000.00 Amount due the estate, notes and open accounts.................. 602.50 Cash, Farmers State Bank ...................................... 142.00 7. “That on the 6th day of February, 1933, Sarah Mitchell filed her final account as executrix of the estate of Robert F. Mitchell, deceased, showing payment of preferred claims in the sum of $997 and claiming due her as executrix, a balance of $170 advanced by her to pay said preferred claims. 8. “The evidence fails to disclose whether or not any consideration was paid by the said Sarah F. Mitchell to R. F. Mitchell for the land in controversy, other than the fact that the deed states as a consideration, love and affection. 9. “That on the 25th day of August, 1932, the said Sarah F. Mitchell conveyed to the other defendants herein the above-described real property for the consideration of $1 and other valuable consideration, the grantees in said deed being the children of Sarah F. and R. F. Mitchell, and being devisees and legatees under the last will and testament of the said R. F. Mitchell. 10. “That the Farmers State Bank, plaintiff herein, failed January 18, 1933, more than twelve months after the death of R. F. Mitchell. 11. “That so far as the evidence discloses there is no property, either real or personal, belonging to the estate of R. F. Mitchell out of which the claims of plaintiff could be paid, except the homestead occupied by the widow and some equities of very doubtful value. 12. “That on the 19th day of November, 1932, the Farmers State Bank of Potter had its claim allowed on the note mentioned heretofore in the sum of $3,306.82, with interest at ten percent from that date, which claim has never been paid. 13. “That on the 25th day of March, 1933, the plaintiff has its claim for double liability on its twenty shares of bank stock allowed in the probate court in the sum of $2,000, which claim has never been paid.” The trial court made one conclusion of law, which was— “That the demurrer of the defendants to the plaintiff's evidence should be and the same is hereby overruled.” Appellants’ first complaint is the trial court erred in overruling their objection to the introduction of evidence. The basis of this contention is the petition did not allege sufficient facts to entitle plaintiff to a judgment for stockholder’s double liability. This was not an action to establish a claim for double liability. The petition alleged in substance, that at the death of R. F. Mitchell, he was the owner of twenty shares of capital stock in plaintiff bank; that thereafter the bank became insolvent, and Mitchell’s estate became liable for the double assessment in the sum of $2,000; the bank duly and regularly recovered a judgment thereon in the probate court against the estate of R. F. Mitchell, deceased, in the sum of $2,000, and that no appeal has been taken from the order and judgment of the probate court. No appeal was taken from that order and, of course, it became final. It was not subject to direct or collateral attack. In Bowlus, Executor, v. Winters, 117 Kan. 726, 233 Pac. 111, it was said: “It is settled law that within its jurisdiction a judgment of a probate court unappealed from is as binding as that of a court of general jurisdiction. (Lake v. Hathaway, 75 Kan. 391, 89 Pac. 666.)” (p. 729.) In the course of the same opinion it was further said: “It follows that the probate court had jurisdiction to authorize the sale of the property; the proceedings under which the property was sold contained no irregularity, and being unappealed from were binding and valid against either direct or collateral attack.” (p. 732.) See, also, Parsons v. McCabe, 127 Kan. 847, 275 Pac. 173; Uhl v. Groner, 140 Kan. 653, 28 P. 2d 130. It is next contended the probate court had no jurisdiction to allow the stockholder’s double-liability claim in that it was not filed in time. The contention is not sound. Statutes of nonclaim or limitation are available as a defense, but they do not rob the court of jurisdiction. It is next urged that when the bank closed Mitchell was dead, and hence did not have title to the stock, that title having passed to the executrix. True, the stock being personalty, title passed to the personal representative. The executrix became ad interim the title holder of the stock which had belonged to the deceased and which remained in his name in the stock register of the bank and in the records of the bank commissioner at the time of his death. Title had never been changed in the bank register or in the records of the bank commissioner. This stock was listed in the inventory as assets of decedent’s estate. The stock liability was a proper claim against the estate. (Farmers State Bank v. Callahan, 123 Kan. 638, 256 Pac. 961; Midwest State Bank v. Sandidge, 131 Kan. 339, 291 Pac. 766.) Furthermore, appellants are in no position to complain. Judgment for double liability was rendered against the estate in the probate court. No appeal was taken from that judgment, and it is final. Appellants also contend any claim appellee had against the estate can only be paid out of property in the hands of the executrix. Were such a theory tenable, it would indeed be an easy way to defraud creditors. Fortunately our laws provide otherwise. R. S. 22-1301 provides for citation and examination on oath or affirmation of persons suspected of concealing, embezzling or conveying personalty which belonged to deceased. With, reference to real estate subject to sale for decedent’s debts, R. S. 22-803 provides: “The real estate liable to be sold as aforesaid shall include all that the deceased may have conveyed with intent to defraud his creditors, and all other rights and interests in lands and tenements not exempt by law: Provided, That lands so fraudulently conveyed shall not be taken from any one who purchased them for a valuable consideration, in good faith, and without knowledge of the fraud; and no claim to the lands sp fraudulently conveyed shall be made, unless within three years next after the decease of the grantor.” The statute does not expressly provide who may institute proceedings to set aside fraudulent conveyances. It has been specifically held the administrator is a proper party to bring the action. (Horton v. Jones, 110 Kan. 540, 204 Pac. 1001.) In the early case of Barker v. Battey, 62 Kan. 584, 64 Pac. 75, it was held: “Where the estate of a decedent is insufficient for the payment of his debts, and it appears that before his death he conveyed real estate with intent to defraud his creditors, and that the administrator occupies a position antagonistic to the interests of creditors, and refuses, upon their requests, to institute a proceeding to reach the property fraudulently transferred, a creditor beneficially interested may bring an action to set aside the fraudulent conveyance, making the administrator and others interested defendants.” (Syl. ¶ 1.) In the instant case the executrix was alleged to be both the fraudulent grantee in the deed from her husband and also the fraudulent grantor in the deed conveying the same property to the defendant daughters. In this action she was contesting both in her individual capacity, and as executrix, an effort to set aside the conveyances. A mere statement of the facts discloses the futility of a request that she prosecute the action to set aside the deeds. Furthermore, as executrix, she would have been obliged to sue herself as an individual and her daughters as grantees of her own alleged fraudulent conveyance. The creditor, under these circumstances, was justified in bringing an action to set aside the conveyances for the purpose of removing the cloud from the title. That having been done, the real estate was then subject to sale by the probate court for the payment of debts in accordance with provisions of law for administration of decedents’ estates. Appellant insists appellee’s cause of action was not-mature, in that an execution had not been returned unsatisfied. True, it has been held this is ordinarily a prerequisite to an action in the nature of a creditor’s bill. (Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846; Bank v. Ternes, 110 Kan. 475, 204 Pac. 699; National Bank v. Walters, 129 Kan. 49, 281 Pac. 868; First National Bank v. Smith, post, p. 369, 55 P. 2d 420, decided this day.) In the Ternes case it was held: “. . . and it is ordinarily necessary for him to show that execution has been returned unsatisfied or that the remedies afforded by law have been exhausted.’’ (Syl. If 1.) (Italics inserted.) In the instant case appellee’s remedies afforded by law had been exhausted. Prior to final order of distribution an unsecured creditor could not reach property of decedent’s estate by attachment or execution (O’Loughlin v. Overton, 68 Kan. 92, 74 Pac. 604; Uhl v. Groner, 140 Kan. 653, 38 P. 2d 130), nor by garnishment (McCarthy Hardware Co. v. Foust, 118 Kan. 431, 235 Pac. 867; Citizens State Bank v. Moore, 121 Kan. 628, 249 Pac. 587). Appellants finally contend -insolvency of decedent and fraudulent intent were not established. Analysis of findings of fact 5, 6 and 7 is indeed interesting. The evidence concerning items contained in findings 5 and 6 is illuminating. The twenty shares of stock listed in finding 6 as an asset became a $2,000 liability. The final account of the executrix disclosed insufficient funds by $170 to pay preferred claims alone. About three weeks prior to decedent’s death, and on the same day, he conveyed by separate deeds to his wife in consideration of one dollar, love and affection, 183.31 acres of land in Jefferson county, and 210 acres in Leavenworth county. This property, had been previously devised to his wife with remainder to the children. No building and loan stock appearing in finding 5 is listed in finding 6. If it ever existed it, too, had disappeared. The house in Potter was the homestead and, of course, exempt. The so-called equity in 361 acres of land in Atchison county, listed at $5,000 in finding 5, had vanished. That land carried a $12,000 mortgage. It sold for $8,500 on foreclosure, leaving a deficiency judgment of about $5,700. Decedent held a one-third interest in the Squire farm. That farm carried a $3,000 mortgage. There was no equity in it, and the prospects were it might terminate in a liability. The bills receivable items, listed at $3,500, represented charged-off assets of the old Potter bank. They were charged off in a bank merger over five years ago and the amount collected on them was negligible. There is abundant competent evidence to support finding number 11. None of the defendants took the witness stand. That is not surprising. The daughters learned of decedent’s note indebtedness to the bank in the sum of $2,900 following his death. A bank employee testified, “The daughters assured the bank it would be taken care of.” The deed to them from the mother was made about ten months after the father’s death and in it the mother reserved a life estate. It will be readily observed that practically all property not exempt was disposed of and that in the property retained no equity remained. The conveyances were to members of the family. There was ample evidence the conveyances were not in good faith, and that none of the grantees were bona fide purchasers. (Hunt v. Spencer, 20 Kan. 126; Hardware Co. v. Semke, 105 Kan. 628, 185 Pac. 732; Hardcastle v. Hardcastle, 131 Kan. 319, 291 Pac. 757; Security Benefit Ass’n v. Swartz, 141 Kan. 227, 40 P. 2d 433, and authorities therein cited.) See, also, 27 C. J. 501, 526, 803. With the removal of the cloud from the title of decedent’s real estate, jurisdiction of the district court ended, under the issues joined in this action. The property is now subject to sale and administration by the probate court in accordance with provisions of law for administration of decedents’ estates. If, in the sound judgment of the probate court, a personal representative by reason of personal interest is antagonistic to the interests of creditors, the probate court should appoint a successor who will discharge the duties of the office with promptness and dispatch. The judgment is affirmed with directions for further proceedings as indicated.	[ -16, 106, -12, 31, 74, 96, 10, -102, 82, -63, 35, 83, -21, -62, 1, 105, 102, 29, 81, 105, 6, -73, 23, -53, -46, -77, -39, -51, -72, -40, -25, -41, 12, 32, 106, -107, -26, -64, -59, 18, -116, -58, -87, 100, -35, 0, 52, 107, 117, 12, -43, -82, -77, 41, 61, 66, 106, 42, 107, 41, 80, -24, -117, -105, 95, 19, -111, 5, -36, -59, -24, 42, -112, 61, 8, -24, 127, -90, -122, -12, 15, 41, 8, 102, 102, 32, 69, -21, -8, -104, 6, -45, -99, -89, -109, 88, 3, 41, -68, -99, 124, 68, 7, -12, -25, -105, 29, 100, 7, -117, -58, -111, -115, 62, -102, 26, -21, -121, 48, 97, -115, -94, 92, 98, 50, 59, -113, -70 ]
The opinion of the court was delivered by Burch, J.: The question to be determined is whether the Central Trust Company has a mortgage lien on land superior to an interest claimed by the Exchange State Bank. The district court determined the question in favor of the bank. The trust company appeals. On January 2,1920, W. A. Caskey executed and delivered to P. M. Haas a mortgage of the land to secure a promissory note of $11,000. The mortgage was recorded on January 16, 1920. On January 20, 1920, Haas executed and delivered to the Exchange State Bank of Atchison his promissory note for $11,000, and as collateral security indorsed and delivered to the bank the Caskey note, and assigned to the bank the Caskey mortgage. The assignment was in writing, was duly acknowledged, and was dated January 20, 1920. The assignment was not filed for record until a date which will appear in the chronological order of events. On March 16, 1925, Haas commenced an action in the district court to recover on the Caskey note and to foreclose the mortgage.. The petition alleged that Haas was owner of the note and holder of the mortgage, and otherwise stated a cause of action. The necessary parties were made defendants, and were personally served. On April 18, 1925, judgment was rendered in favor of Haas for the amount due on the note and for foreclosure of the mortgage. The judgment included a finding that Haas was owner and holder of the mortgage and was entitled to foreclose it. An order of sale was duly issued, and on June 1, 1925, the land was sold at sheriff’s sale to Haas, for $12,112. On June 17, 1925, the clerk of the district court entered on the margin of the record of the mortgage in the office of the register of deeds, the statement relating to foreclosure of the mortgage which he was required to make by R. S. 67-313. On November 14, 1925, the sale was confirmed and a certificate of purchase was issued to Haas. On April 17, 1926, the Exchange State Bank placed on record the assignment of the mortgage. The bank had no knowledge or notice of any of the foreclosure proceedings and at all times had possession of the note and mortgage. On May 17, 1926, the Central National Bank of Topeka loaned Haas $6,000 and took from him as collateral security an assignment of the certificate of purchase. On December. 6, 1926, the period of redemption having expired and the landowner not having redeemed, Haas executed to the Central Trust Company of Topeka a mortgage of the land to secure a loan of $6,500. On December 7, 1926, a sheriff’s deed was executed and delivered to Haas, which was recorded on December 8, 1926. The trust company’s mortgage was filed for record on December 10, 1926. On December 28/1926, the trust company, by direction of Haas, paid to the Central National Bank the sum due to it, $6,060, and gave Haas a check for $440. The trust company’s loan was made in reliance on an abstract of title certified by a bonded abstracter. The abstract did not disclose the assignment of the mortgage to the Exchange State Bank, and neither the Central National Bank nor the Central Trust Company had any actual notice or knowledge of the assignment, or of any interest of the Exchange State Bank in the land. On March 21,1927, the Exchange State Bank discovered the state of affairs then existing, and on April 5, 1927, commenced the action which resulted in the judgment appealed from. Haas was dead. The executor of his will, Kendall M. Haas, and his devisees and heirs, Minnie B. Haas and Kendall M. Haas, were made parties defendant. Caskey and his wife and the Central Trust Company were made parties defendant. The petition pleaded the Caskey note and mortgage to Haas, the assignment to plaintiff, and the foreclosure proceedings, which were alleged to be fraudulent as to plaintiff. The theory of the action is disclosed by the prayer of the petition, which reads as follows: “Wherefore, plaintiff prays that it be adjudged to be the owner of and entitled to the possession of said real estate, and that the defendants hold the same in trust for plaintiff, and that said defendants be required to execute a proper deed of conveyance of the legal title to said property and to surrender up possession thereof, and that its title thereto be quieted as against all of the defendants, and for such other and further relief as to the court may seem just and equitable in the premises, and for costs of suit.” The petition was subsequently amended by setting up the Haas note to plaintiff, on which there was due the sum of $10,400 and interest, and by stating that the Caskey mortgage was assigned to plaintiff as collateral security to the Haas note. The amended petition concluded as follows: “That the plaintiff is the owner of the land described in its original petition, but that said land should be sold by order of the court so that the proceeds thereof should be applied on the claims of the respective parties as their interests may appear. “Wherefore, plaintiff renews and adopts all of the allegations and prayer in its original petition, and prays further that said land be sold under order of the court and that the proceeds of such sale be applied: 1. To the payment of any and all taxes due thereon; 2. In payment of plaintiff's note of $10,400, with interest at 10 per cent from March 10, 1927 ; 3. The balance, if any, to be paid to such of the defendants as establish their right thereto." The Central Trust Company answered, and claimed a first lien. Other defendants disclaimed. A money judgment was rendered in favor of plaintiff against the executor of the Haas estate, on the Haas note, for $11,269.55. The court found and adjudged that plaintiff was owner of the land to the extent of its money judgment; found that Minnie B. Haas, Kendall M. Haas, Kendall M. Haas, executor, and the Central Trust Company, held the legal title to the land in trust for plaintiff to the extent of its money judgment; found that Minnie B. Haas, Kendall M. Haas, Kendall M. Haas, executor, and the Caskeys, had no interest in the land; and found and adjudged that the interest of the Central Trust Company was inferior to that of plaintiff. The land was ordered sold subject to redemption by the Central Trust Company only. Minnie B. Haas, Kendall M. Haas, Kendall M. Haas, executor, and the Caskeys, were adjudged to have no interest whatever in the land, and they were barred from claiming any interest. In March, 1928, the land was sold at sheriff’s sale to plaintiff for $11,234.96, and the sale was confirmed on March 23, 1928. The proceeds were ordered to be applied, after payment of costs and taxes, to payment of plaintiff’s judgment, and if any balance remained, to satisfaction of the Central Trust Company’s note and mortgage. When plaintiff discovered what Haas had done, it could choose one of two courses of action: It could repudiate the foreclosure proceedings on the ground of fraud, and itself foreclose the Caskey mortgage; or it could confirm the regularity and validity of the foreclosure proceedings as vesting title in Haas, and hold him as trustee of the title for plaintiff’s benefit. Consummation of the foreclosure proceedings did not of itself split the interest in the land into two denominations, one a legal interest vested in Plaas and the other an equitable interest vested in plaintiff. Plaintiff was still a mortgagee unless and until it elected to become something else. It had privilege to disregard the foreclosure proceeding and power to foreclose its own mortgage, and in that event the Haas foreclosure proceeding became a nullity for all purposes so far as plaintiff and the parties to the foreclosure suit were concerned. If plaintiff elected to confirm the foreclosure Haas had all the interest in the land anybody could acquire by foreclosure of a first mortgage, and plaintiff had power to compel him to hold that entire interest for plaintiff’s benefit and to make an effective conveyance to plaintiff. Plaintiff chose to confirm the foreclosure proceedings and must abide the consequences. The Caskey mortgage never has been foreclosed, unless Haas foreclosed it. The judgment in plaintiff’s favor, which it defends here, conclusively established the effectiveness of the foreclosure. All interests in the land, ownership, possession, and right of redemption were denied by the judgment, except the interests of plaintiff and the trust company. Plaintiff was even given judgment against the tenant of the land for the landlord’s share of the crops for the year 1927. The heirs, devisees and executor of Haas obtained the title to the land which the court decreed they held for plaintiff, from but one source, Haas, and he obtained it by but one means, the foreclosure proceedings. Of course the trust company did not have, or pretend to have, legal title to the land. It held a mortgage given by Haas to secure a promissory note. Unless the foreclosure were effective to the extent that it gave Haas power to create a valid mortgage lien on the land the trust company has no lien, and could have no right of redemption. The result is plaintiff may not impeach the integrity of the foreclosure proceedings which gave Haas ownership for plaintiff’s benefit; and in appropriating to itself the benefit of the foreclosure proceedings plaintiff cannot get rid of interests innocently acquired from Haas without notice of his trusteeship for plaintiff. The only basis for claim that the trust company had notice that the Haas foreclosure of the Caskey mortgage might be for plaintiff’s benefit was the record of the assignment. The record of the assignment was ineffectual for that purpose. When judgment was rendered in the foreclosure suit, the Caskey note was extinguished. (Price v. Bank, 62 Kan. 735, 64 Pac. 637; Remington v. Hudson, 64 Kan. 43, 46, 67 Pac. 636; Redden v. Bank, 66 Kan. 747, 71 Pac. 578; Rossiter v. Merriman, 80 Kan. 739, 743, 104 Pac. 858; City of Topeka v. Ritchie, 102 Kan. 384, 387, 170 Pac. 1003.) When the judgment was rendered the mortgage securing the Caskey note was extinguished: “A mortgage lien is merged into a decree foreclosing it. After that an action cannot be maintained on the indebtedness secured by the mortgage or for a foreclosure of the mortgage a second time.” (Dumont v. Taylor, 67 Kan. 727, syl., 74 Pac. 234.) “In the present suit thes plaintiffs appear to rely for a foundation on causes of action which were finally merged and extinguished in the judgment entered in their favor in the foreclosure case. All the claims they had against the real estate by virtue of the mortgage, interest and costs, as well as all claims against the property by reason!, of their tax deed, were merged in that judgment, . . . All their causes of action were merged in the final judgment, and thereby extinguished.” (Hayes Bros. v. Waggener, 98 Kan. 740, 743, 161 Pac. 584.) When plaintiff amended its petition to permit a sale of the land it did not relinquish benefit of the foreclosure proceeding. It did not deny that the Caskey mortgage had been validly foreclosed, and claim as mortgagee. While for the purpose of holding Haas as trustee, plaintiff alleged the foreclosure was fraudulent as to plaintiff, plaintiff still claimed ownership of the land. Because the attitude plaintiff would take with reference to the status of the mortgage, whether alive or extinguished, rested in its own choice, equity will not relieve from the consequences of extinguishment of the mortgage by merger in the foreclosure judgment. It is not material that plaintiff had possession of the Caskey note and mortgage, because plaintiff’s superior interest in the land rested on the foreclosure proceedings; and the foreclosure notation made by the clerk of the district court on the margin of the record of the Caskey mortgage in the office of the register of deeds gave notice to the world that the mortgage was extinguished on April 18, 1925. Constructive notice afforded by assignment of the Caskey mortgage to plaintiff dated from the time the instrument was filed for record, April 16, 1926. The effect of the assignment was the same as if it were executed and delivered on that day. (Utley v. Fee, 33 Kan. 683, 690, 7 Pac. 555; Smith v. Worster, 59 Kan. 640, 643, 54 Pac. 676; Caldwell v. Bigger, 76 Kan. 49, 54, 90 Pac. 1095.) On April 16,1.926, the records disclosed there was no Caskey mortgage in existence. On the face of the record Haas had no power to affect interests in the land by assigning the dead instrument, and if the assignment had appeared on the abstract furnished to the trust company the trust company would have been at liberty to ignore it. Waiving for the present the consequences of plaintiff's election, and treating the action as virtually one to preserve benefit of the Caskey mortgage, the result is the same. By failing to record the assignment plaintiff allowed the mortgagee to deal with the mort gage in such a manner that he extinguished it. After judgment the Caskey mortgage no longer had any potency as a source of interests in the land. Purchasers could derive interests through the judgment only, as a new source of interests. The assignment did not relate to any interest derived from that source, transferred nothing, and was nugatory as notice of acquired interest. The assignment was written on the original mortgage, and recited that it sold, assigned, set over and conveyed unto the Exchange State Bank of Atchison, Kan., heirs and assigns, the within mortgage deed, the real estate conveyed, and the promissory note, debts and claims thereby secured. The mortgage conveyed no real estate, and the assignment affected the mortgage interest in the land only. The judgment of the district court is reversed, and the cause is remanded with direction to award the Central Trust Company a lien superior to the interest of plaintiff, and to make such orders as will finally determine the interests of the trust company and the plaintiff on that basis.	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The opinion of the court was delivered by Dawson, J.: This appeal invokes a review of the construction given by the trial court to certain provisions of two contracts between plaintiffs and defendants governing their respective rights on plaintiffs’ farm premises leased to defendants to prospect for and develop oil and gas. The pertinent and controlling facts are these: Plaintiffs own a farm of 280 acres in Wilson county. In January, 1924, they leased 240 acres of their farm to defendants for the development and production of oil and gas. Among the terms of the written lease-contract were these: “10. . . . Lessee shall have the right at any time during or after the expiration of this lease to remove all machinery, fixtures, houses, buildings and other structures placed on said premises, including the right to draw and remove all casing. . '. . “11. Lessee agrees to lend his facilities, for marketing the production hereon, to the marketing of the gas produced from the gas well of lessor now on his lands and without cost for the service rendered.” Shortly after the execution of the above lease defendants drilled five producing gas wells thereon; and in May of the same year plaintiffs gave defendants a lease of the remaining forty acres of their farm for the same purposes. At the time this latter lease was executed there was already a gas well and some well rigging on this forty acres. This second lease contained some terms which require to be quoted: “3. Lessee agrees to move a rig on the well now producing on the land herewith and to tube same into the Oswego shale and in case of failure to make said well into a commercial producer to commence another well on the lands herewith, said commencement to be immediately upon completion or failure to complete the said well now producing. If said well now producing is successfully completed into a commercial producer, then lessee will not be required to drill another well on the lands hereunder. “4. In case of abandonment of the lease on the land herewith or the balance of lessor’s land now leased to lessee, the lessee agrees to deliver, free of cost, to lessor his choice of any one of the wells producing on said lands, with all equipment therein and thereon to produce gas from said well.” “12. Lessee will have the right, at any time, to remove all machinery and fixtures placed on said premises by lessee, including the right to pull and remove casing, whereupon the requirements hereunder cease and this lease becomes null and void.” In plaintiffs’ petition the foregoing facts were pleaded and the leases exhibited, and it was alleged that on June 16, 1926, production of oil and gas was abandoned on the 40-acre tract leased in May, 1924, and on October 22, 1926, defendants executed and filed for record a release of it. It was also alleged that by such abandonment of the 40-acre tract plaintiffs became entitled to exercise their choice of any one of the wells producing gas on the remainder of the farm still held under lease by defendants, and under such claim of right plaintiffs elected to select one of the producing wells thereon known by all the parties to this action as No. 5, located close to the 40-acre tract abandoned and surrendered by defendants. Plaintiffs further alleged that their right to the well so chosen and to the equipment pertaining thereto and to the proceeds of gas sales therefrom had been denied by defendants. Plaintiffs prayed for an adjudication of their contract rights, and for judgment of their complete and exclusive ownership of the well selected by them under their contract rights, and for an accounting of the proceeds of the gas sales therefrom since June .16, 1926. Defendants filed an answer and plaintiffs replied. The cause was called for trial and counsel for plaintiffs made his opening statement. Defendants thereupon brought matters to a summary conclusion by a motion for judgment on the pleadings and on plaintiffs’ opening statement. The trial court ruled as follows: “That said motion should be sustained and that judgment should be rendered against plaintiffs and in favor of defendants for costs, for the reason only, that the terms of the lease relied upon by plaintiffs in their petition do not sustain any recovery for plaintiffs herein, nor sustain plaintiffs’ right to any gas well located Other than on the premises described in oil and gas lease exhibit B to plaintiffs’ petition attached. “The court doth further find that the petition of plaintiffs wholly fails to state a cause of action against the defendants, or either or any of them.' “It is, therefore, by the court considered,- ordered, adjudged, and decreed, that judgment be and the same is hereby rendered upon the pleadings, in favor of defendants and against plaintiffs for all costs herein.” Apparently it was the trial court’s theory that the two leases covering different parts of this farm had nothing to do with each other, and that this construction of their terms was so clear from the allegations of plaintiffs’ petition and the lease-contracts themselves that the court could rule on it as a matter of law. It is quite true that the proper construction of a written contract is a matter for the court and not for a jury (Platts v. Thompson, 126 Kan. 544, syl. ¶ 4, 268 Pac. 833), but this court finds itself very much at variance with the trial court’s construction of the instruments submitted for our review. The first lease-contract takes cognizance of a gas well existing on the farm before either of the leases were executed and that portion of the farm on which it was located was not included in the first lease, but the defendant lessees obligated themselves to lend their marketing facilities to dispose of the production of that well without cost to the plaintiffs. In the second lease this gas well again is given attention, and the de fendant lessees agreed to move the rig on it and to drill or “tube” down to a certain geological stratum, and if' they should fail to make it a commercial producer they would commence another. In both the first and second leases the privilege is given the lessees to remove all machinery and fixtures, to pull and remove casings and the like, except as provided in the fourth clause of the second lease which needs critical attention: “4. In case of abandonment of the'lease on the land herewith or the balance of lessor’s land now leased to lessee, the lessee agrees to deliver, free of cost, to lessor his choice of any one of the wells producing on said lands, with all equipment therein and thereon to produce gas from said well.” Does not this paragraph virtually tie together the two lease-contracts covering plaintiff’s farm? If either the 40-acre tract leased in May, 1924, or the 240-acre tract leased in January, 1924, is abandoned by the lessee — what happens? In such case the agreement specifically set down in paragraph 4 is to take effect. The defendant lessees are to deliver to the plantiffs their “choice of any one of the wells producing on said lands.” What lands? The lands just mentioned, of course — “the land herewith [the 40 acres] or the balance of the lessor’s land [the 240 acres] now leased to lessee.” The appellees argue that the word “lands” in paragraph 4 should be qualified by interpolating the adjective “abandoned” before the word “lands,” so that the paragraph would read that in case of abandonment of either tract the plaintiffs would have their choice of any of the producing wells on the abandoned tract. It would hardly be worth the trouble to define the rights of the parties concerning a well of such trivial value. If it was worth anything the lease of the land where it was situated would not be abandoned. At all events the lease-contracts do not bear the interpretation contended for by appellees so clearly that it could be so declared as a matter of law. In further support of the judgment, counsel for appellees cite the rule that the intention of the parties to contracts is to govern. That is a good rule, but its complement is that the contract itself is presumed to disclose the intention of the parties if it is free from ambiguity. Here some of the justices of this court are not inclined to concede that these lease-contracts are ambiguous, and are inclined to interpret them as contended for by plaintiffs. However, we are not asked to go that far at this time; and the court prefers not to foreclose the matter, seeing that issues of fact are already joined, and when these are determined the right of this controversy may clearly appear. (Thresher Co. v. Nelson, 106 Kan. 716, 189 Pac. 907; Dye v. Parker, 108 Kan. 304, 308, 194 Pac. 640, 195 Pac. 599; Sentney v. Central Cattle Loan Co., 119 Kan. 545, 548, 240 Pac. 856.) The judgment is reversed and the cause remanded for further proceedings consistent herewith.	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The opinion of the court was delivered by Hutchison, J.: This is an action by a real-estate agent against a landowner to recover for the breach of an exclusive agency contract, and the only question involved is the amount of compensation or damages he should recover where he did not procure a prospective purchaser, but the owner sold the land to one procured by another agent within the time given exclusively to the plaintiff. Is it to be a commission based upon the price received by the owner or is it to be damages incurred in endeavors to procure a purchaser? The case was commenced in the justice court and appealed to the district court, where the bill of particulars, as amended, contained allegations as to time and money expended to find a purchaser, and also that the landowner had sold the property for $300 above the net price named in the contract with plaintiff; The court, on motion of defendant, struck out from the petition the allegations of the $300 excess, and the plaintiff appeals, insisting that the $300 excess is the proper measure of his recovery. There was a stipulation as to the amount of recovery on the other theory, so that the case is properly here for review. The written contract was attached to the bill of particulars, and is as follows: “Great Bend, Kan., October 30, 1925. “For the consideration of one dollar (SI), the receipt of which is hereby-acknowledged, I hereby give unto Leonard J. Isern the sole and exclusive right, for a period of thirty days from date, to sell and dispose of my property described as follows, to wit: Lots 21 and 20 in block 78 in the original plat of the city of Great Bend, Barton county, Kansas, at a. price to net me the sum of five thousand seven hundred dollars ($5,700). “J. B. Miller. “Leonard J. Isern. “Witness: Wayne H. Lamoreux.'-’ The bill of particulars shows that plaintiff, as soon as the contract was signed, went to a distant point at some expense to endeavor to effect a sale, and worked there and elsewhere for three days on this matter until he learned that the landowner had sold the property through another agent for $6,000, and he insists that his proper compensation is the $300 the owner received above the net price named in the contract. Since the commencement of this case the owner of the land has died and the cause has been properly revived in the name of his representative. There would be no question as to the contention of the appellant if he had procured this purchaser or any other prospective purchaser prior to the revocation of the contract, ready, able and willing to pay $6,000. The difference, or $300, would have been earned by him regardless of the action of the owner in accepting or rejecting the offer. But the plaintiff contributed nothing toward procuring this purchaser, and, under the general rule as to broker’s commission, he must do something toward earning it. What he did during those three days is not claimed by him to have had anything to do with the sale actually effected. A real estate commission is only earned by finding a purchaser. This he did not do, and we think there was no error in the holding of the trial court that under the written contract and the allegations of the bill of particulars plaintiff could not recover the $300 as commission. “A real-estate broker employed to find a purchaser of land at a fixed price is not entitled to a commission unless he procures a purchaser ready, willing and able to buy the land at the stipulated price, or one who at the end of negotiations with the owner does buy it at a lower price.” (Morris v. Francis, 75 Kan. 580, syl., 89 Pac. 901.) “Before a real-estate agent employed to assist in finding a purchaser for land can recover a commission for its sale, the agent must show that his efforts did assist the owner to find a purchaser. “A real-estate agent employed to sell land must show that he sold the land or that he was the procuring cause of the sale before he can recover a commission therefor.” (Hover v. Decker, 111 Kan. 395, syl., 207 Pac. 781.) There are numerous decisions to the same effect, but stated affirmatively, that when the agent has found a prospective purchaser he is entitled to his cqmmission regardless of the acceptance or rejection by the landowner of such offer. (See Lockwood v. Halsey, 41 Kan. 166, 21 Pac. 98; Wheeler v. Waymire, 100 Kan. 383, 164 Pac. 186; Edwards v. Dana, 104 Kan. 266, 178 Pac. 407; Haggart v. King, 107 Kan. 75, 190 Pac. 763; and Moore v. Gould, 108 Kan. 99, 193 Pac. 1057.) But appellant urges that the rights of a broker having an exclusive agency are different from those of agents without such exclusive privileges. They are different in some particulars, but not with respect to the duty of finding a purchaser. In the case of Goldberg v. Investment Co., 112 Kan. 348, 212 Pac. 157, it was said in the opinion: “The answer disclosed that before revocation occurred the agent had not only entered upon the business of finding a tenant, but had secured Wolcott as a tenant. The next day the plaintiff attempted to revoke the agent’s authority, but the agent refused to submit to any revocation. The listing contract created an exclusive agency for a definite period. It expressed a consideration, and in any event became binding on the principal as soon as the agent expended time and money in the principal’s service. The agent could not then be prevented from earning a commission, within the period of his appointment, by revocation of authority while he was conducting negotiations with a prospective tenant.” (p. 355. See, also, Fleming v. Hattan, 92 Kan. 948, 142 Pac. 971; Braniff v. Baier, 101 Kan. 117, 165 Pac. 816.) In the cases of Jones v. Hedstrom, 89 Kan. 294, 131 Pac. 145, and Culbertson v. Sheridan, 93 Kan. 268, 144 Pac. 268, the same duty of finding a purchaser was held to be necessary to entitle an agent to commission where it consisted of a difference between the net price and an advance price procured. Appellant cites a number of cases in support of his contention, but we cannot agree that they are decisive of the real point in issue in this case. In the case of Braniff v. Baier, supra, it was said: “There was little occasion for the agents to go through the form of making a tender when the defendants had refused to carry out their contract. Having put their refusal solely upon the grounds mentioned, they are estopped after the suit is brought to shift their position and defend on grounds not then relied on and which the agents might have supplied, overcome, or corrected if they had been mentioned.” (p. 121.) But this was where a purchaser had been procured and the owner told the agent the land was not on the market, and later in the litigation attempted to avoid the liability by calling attention to some minor details of settlement not performed by the purchaser. Appellant relies strongly upon the decision in Durkee v. Gunn, 41 Kan. 496, 21 Pac. 637, the third paragraph of the syllabus of which is as follows: “Where an agent has an agreement with his principal to sell certain lands, which have been placed in his hands to be disposed of within a time limited, and the agent is to receive no pay or compensation for advertising, putting the same upon the market, or for his services, excepting a share of the profits arising from the sales of the lands, and in the performance of such agreement he renders services for several months, and expends time and money, and then, without any reason or excuse, the principal revokes the contract and refuses to permit him to sell the land under the contract, the agent is entitled to recover from'the principal such compensation in damages as will be equal in amount to his share of the profits which would have resulted had the lands been sold by him.” This shows plainly that it was not merely a question of agency and commission, but a contract for advertising the property, and, as the opinion shows, was a booming of the city property which almost doubled its value within the time limited by the contract. Under such a contract the agent was entitled to recover on a different basis, not because of a sale, but because the property had by his efforts increased in value and he was entitled to one-half of that increase. The contract in the case of Kirshner v. Brown, 78 Kan. 531, 96 Pac. 848, makes it inapplicable to the issues in the instant case, for it provided that the agent should “receive 5 per cent of all rents collected and 2% per cent of the price should any of the property be sold, no matter by whom, he, however, to have an exclusive agency for the sale thereof.” The same situation existed in the case of Gaillard Realty Co. v. Rogers Wire Works, 213 N. Y. S. 616, where the agent was to receive a stipulated amount ff other agents made the sale. In Genske v. Christensen, 189 Wis. 520, the contract provided that “if a sale is effected by you, myself, or any. one else, I agree to pay you three per cent commission.” In Jones v. Hollander, (N. J.) 130 Atl. 451, it was stated in the contract “that the above-named agent shall be paid the full amount of said commission if said property is sold during the term of this agreement.” In Green v. Cole, 127 Mo. 587, cited by appellant, the contract of agency imposed upon him the duty of having the land surveyed and platted into town lots, and it was held that the owner, by revocation of the contract within the time limited as exclusive, was liable for the profits which would have resulted to the plaintiff if he had been permitted to conclude the arrangement. He had enhanced the value of the property by surveying and platting it, and enriched the owner to that extent. Nothing of this nature was in the case at bar. Other cases are cited, where purchasers were actually procured by the plaintiff and therefore are not controlling in this case. This is a plain case of breach' of contract, and plaintiff is entitled to recover the damages he has suffered because of the breach, but not in the form of a real-estate commission on a sale made through another agent, even during the time of his exclusive right, when he did not procure a purchaser ready, able and willing to buy the property. “Where the principal wrongfully terminates the contract of employment by revoking the broker’s authority, the latter is entitled to recover as damages not only the value of such services as he has already rendered together with such disbursements as he has made in his employer’s behalf, but also such prospective profits as he can reasonably establish would have been his but for the wrongful revocation of his authority.” (4 R. C. L. 255.) The ruling and orders of the trial court are affirmed.	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The opinion of the court was delivered by Hutchison, J.: This was an action in ejectment involving questions of a mortgagee in possession and a deed being construed as a mortgage. It was tried by a jury which rendered a verdict for defendants, and plaintiff appeals. No special questions were submitted to the jury and we have only their general verdict. Appellant forcibly argues the following five specifications of error: “The court erred (1) in refusing to allow certain testimony to be introduced by the appellant; (2) in sustaining certain objections of the appellees to the appellant’s testimony; (3) in instructing the jury as to the law in the case in giving instructions Nos. 10 to 23, inclusive; (4) in overruling appellant’s motion for judgment notwithstanding the verdict of the jury; and (5) in overruling the appellant’s motion for a new trial.” The plaintiff became the owner of the lots in question in 1920, after which he borrowed from the defendant The Capitol Building and Loan Association $4,500, and gave a mortgage on the lots to the building and loan association therefor, and erected a dwelling house on the lots and occupied it as his residence until 1932. He reduced the loan to $2,900 and later when he became interested in a bank in the town of his residence — Medicine Lodge — he borrowed $1,000 from the building and loan association, thus increasing the loan to $3,900.' Shortly thereafter, and in 1927, he borrowed for use in the bank the sum of $3,333 from J. H. Trice, and gave him a warranty deed to said property, subject to the mortgage held by the Capitol Building and Loan Association. Plaintiff and family removed from their residence in Medicine Lodge to Wichita in 1932, after which Trice gave attention to the collection of rent for the same and the making of repairs on the property. The warranty deed given by plaintiff and wife to Trice was dated January 12,1927, and was placed of record November 12, 1932. Trice gave a quitclaim deed to the same property to the Capitol Building and Loan Association on September 18, 1933, which was placed of record the same month, and the association on December 12, 1933, entered into a contract with the defendant Antone Bertoglio to convey the property after certain monthly payments had been made. The defendant Bertoglio was occupying the house and property when this action was commenced on March 15, 1934, against him and the Capitol Building and Loan Association. There was evidence about plaintiff padlocking the building against the defendant Bertoglio and later renting it to him. There was also evidence of the plaintiff’s having given J. H. Trice a note for $3,333 at the same time he gave the warranty deed. There was also evidence introduced as to the disposition of the rent money collected by Trice. As to the exclusion of evidence offered by the plaintiff, we are not informed as to what the answers to the questions asked by the plaintiff were to which the court sustained objections, except one which was partially answered before the ruling was made, as the record indicates. It is said that the answer to one of the other questions would naturally be simply “yes” or “no.” But it might make a serious difference which of the two answers would have been given if the objection had not been sustained. Being thus in the dark as to what all this rejected evidence offered by the plaintiff actually was, it is impossible for us to determine whether the ruling excluding it was right or wrong. If it had been brought to the atten tion of the trial court on the hearing of the motion for a new trial, as provided by R. S. 60-3004, it would have come up to us on appeal. Under the circumstances we are not able to say there was error in the exclusion of the answers to these questions. As to the error in the giving of certain instructions to the jury, particularly Nos. 10 and 11, it is contended by the appellant that it was the duty of the trial court to construe the warranty deed together with the testimony that it was given to secure a note for $3,333 as a mortgage and not to have left it to the jury, citing the following casés: Bell v. Keepers, 37 Kan. 64, 14 Pac. 542; Aaron v. Telephone Co., 84 Kan. 117, 114 Pac. 211; and Nichols & Shepard Co. v. Swisher, 110 Kan. 20, 202 Pac. 630. All of these decisions confirm this as the general rule. However, the last case aibove cited, after stating this general rule, states: “The construction of the contract in this case did not depend upon extrinsic facts about which there was a dispute.” (p. 24.) Appellant insists that the deed was given to secure a note and such matter was undisputed, but there were other extrinsic facts brought out in the evidence which might have made it necessary to have submitted the question to the jury, and the jury might not have given credence to the testimony of the plaintiff as to such undisputed fact. The conduct of the parties, the payment of taxes or the failure to pay such, and the relation of both parties with reference to the property are extrinsic matters which might justify the trial-court in leaving the matter to the jury, even though the note feature of the case, if believed, was undisputed. It is said in Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127: “The true test in determining whether or not the transaction between the parties constituted an absolute conveyance or a mortgage, is whether, after the transaction, there existed, by virtue thereof, the relation of debtor and creditor.” (p. 172.) There are enough of circumstances in connection with the relation of plaintiff and Trice to make the same debatable, and enough, if credited, to do away with that relation of debtor and creditor. Appellant assigns a similar error as to the giving of instructions Nos. 15 and 16, which concern the contract made between the two defendants in this action, particularly as to the construction of said contract with reference to the giving of possession of the premises by the building and loan association to defendant Bertoglio, quoting in particular a portion of instruction No. 16 with reference to possession of the premises as follows: ". . . then I say to you that the said Antone Bertoglio thereby became the equitable owner of said premises and entitled to the possession thereof insofar as the Capitol Building and Loan Association is concerned.” This same instruction concludes with the following clause with reference to the right to possession: “. . . but no more than the said corporation had, and you should so find.” This contract of purchase was, like the warranty deed, as to construction, dependent upon some extrinsic facts, especially as to the giving of immediate possession of the premises to defendant Bertoglio, and was therefore a proper matter to put up to the jury. Instructions Nos. 17 to 23, inclusive, are on the question of a mortgagee in possession and the right of a mortgagee when in possession. We find no errors in the statement of the law concerning the same, and the determination of the facts with reference to such matters was absolutely within the province of the jury. Appellant argues very forcibly and earnestly that it was error to overrule his motion for judgment notwithstanding the verdict of the jury and his motion for a new trial, both on the theory of unimpeached and uncontradicted evidence on his side of the case, and cites authorities that a jury must not wholly disregard positive, and the only, evidence upon a material question in controversy. That is good law, but it must not overturn the recognized rule that the jury is to determine the extent of credence to be given the testimony of any and all witnesses. It was said recently in the case of Weber Implement & A. Co. v. Dubach, 132 Kan. 309, 295 Pac. 979: “. . . the trier of facts is not bound to believe evidence, the truth of which is not admitted, merely because no direct testimony to the contrary is offered.” (Syl. IT 5.) (See, also, Cobe v. Coughlin, 83 Kan. 522, 112 Pac. 115; Swartz v. Levin, 108 Kan. 224, 194 Pac. 646; and Sharp v. Losee, 109 Kan. 211, 199 Pac. 94.) A decision particularly applicable to the situation under these motions is Jevons v. Railroad Co., 70 Kan. 491, 78 Pac. 817, where it was said: “Oral evidence in support of an affirmative defense, even if not contradicted, will not authorize a trial court peremptorily to direct a verdict for the defendant.” (Syl. f 2.) Answers to special questions along the lines urged by appellant showing the details of facts as seen by the plaintiff would have been good grounds for rendering judgment notwithstanding the verdict, but without such answers all answers are necessarily contained in the general verdict’ in favor of the defendants. We find no error requiring a reversal of any of the rulings of the trial court. The judgment is affirmed.	[ -15, 122, -48, -18, 10, -32, -88, -102, 77, -96, -77, 87, -19, -62, 68, 105, -11, 41, 84, 107, -123, -77, 7, -31, -46, -77, 81, -43, -75, -49, -12, -41, 76, 49, -62, -107, -58, -62, 69, 92, -50, -123, -120, 100, -3, 64, 52, 115, 52, 75, 113, -113, -13, 42, 25, 99, 72, 40, -37, 57, 33, -72, -115, -115, 93, 23, 17, 54, -116, 69, -24, 10, -104, 53, 0, -72, 115, -90, -106, 116, 111, -101, 44, 102, 98, 16, 113, -21, 112, -103, 15, -1, -115, -89, -105, 88, 33, 41, -98, -99, 117, 16, 7, 126, -1, 21, 25, 108, 15, -113, -44, -77, -113, 56, -104, -126, -13, -93, 32, 112, -113, -32, 92, 103, 90, -101, -114, -80 ]
The opinion of the court was delivered by Hutchison, J.: The defendant in this case was convicted of grand larceny, and appeals, alleging error of the trial court in refusing to grant a new trial for misconduct of the prosecuting attorney and on account of newly discovered evidence, which the defendant with diligence was unable to procure for the trial. The misconduct of which complaint is made was, first, the making of statements by the county attorney in his argument to the jury with reference to the defendant being a bad character who was wanted by the officers of Douglas county, which statements were calculated to produce passion and prejudice in the minds of the jurors. The record does not show what, if any, objection was interposed to such statement when they were being made nor the ruling of the court thereon. There is no showing that it produced a prejudice against the defendant, but we are left to infer that it did. The exact language is not given. A reviewing court cannot from this limited showing.say such statements were prejudicial. “Certain language used by one of the prosecuting attorneys in which he expressed his personal opinion as to the guilt of the defendant is not deemed to be such as to require the setting aside of the verdict.” (State v. Killion, 95 Kan. 371, syl. ¶ 10, 148 Pac. 643.) “Language used by the county attorney in addressing a jury, though somewhat improper, will not be deemed materially prejudicial unless such as fairly to lead to the conclusion that the jury were thereby swerved from the perr formance of their duty.”. (State v. Briggs, 94 Kan. 92, syl. ¶ 4, 145 Pac. 866.) “A remark by the county attorney as to a matter not in evidence, although irregular, is not a ground of reversal where it does not appear to have prejudiced the defendant or affected his substantial rights.” (State v. Brecheison, 117 Kan. 542, syl. ¶ 2, 232 Pac. 244.) The further misconduct charged to the county attorney was leading opposing counsel to believe that a certain witness had been subpoenaed, and in having actually subpoenaed another witness, both of whom failed to appear at the trial; and because of their absence the defendant was unable to use them as witnesses. Defendant says he relied upon their being present, and when they were not available he was deprived of their testimony by accident and surprise. It has never been the rule in this state that a defendant could rely upon the presence of witnesses called by the state, for, although regularly subpoenaed and actually in the court room, they may be excused by the party calling them. The defendant should have arranged to have present the witnesses whom he expected to use, without depending upon the state for that purpose, and he will not be entitled to a new trial or reversal because of their absence when he relied upon the state to have them present. “If the defendant desires to rely upon the attendance of witnesses under subpoena by the state, he may notify them and the court of such fact, or may cause them to be subpcenaed in his own behalf. He has no right to rely upon the attendance of a witness merely because the state may have caused a subpoena to issue for such witness.” (State v. Campbell, 73 Kan. 688, syl. ¶ 13, 85 Pac. 784.) One of these witnesses was the stenographer who took the testimony at the preliminary hearing and made a transcript of it. The record does not show any request for delay to have her identify the transcript or any attempt to introduce the evidence taken at the preliminary hearing. Without an effort having been made to procure this testimony for the trial, or a refusal of the court to afford an opportunity to- obtain it, there is nothing here to review. The testimony of the other witness is claimed to be newly discovered, although his name was mentioned at the trial and his presence there was expected by the defendant. The appellant insists that the testimony of the witness last mentioned and that of four others was newly discovered and material to the issues, which testimony with diligence he was unable to procure at the time of the trial. The two girls who are said to have overheard the two boys who testified for the state planning and agreeing “to throw it on” the defendant, would be furnishing cumulative evidence if they so testified, because Fred Ottinger, one of the witnesses for the defense, said that one of these boys told him “if he did get caught he was going to kick it off onto Calvin Ice.” The witness who was supposed by the defendant to have been subpoenaed is said to be able to furnish newly discovered evidence on three points. One was to contradict one of the boys who said he was finding a buyer for a horse this witness had for sale. He testified before the trial judge on the hearing of the motion for new trial, and in cross-examination substantially confirmed the boy’s story about the sale of the horse. The other two points were about' the condition of the roads on the night of February 2, and that the two boys were in the car alone, and the defendant was not with them. The other two witnesses testified, or it was said they would testify, to the same effect about the defendant not being with the two boys in the car on the night of February 2; and they all testify as to the condition of the roads. Several of the witnesses on the trial spoke of the condition of the roads, differing in degree as to the mud.- Any more testimony would be cumulative. All such testimony was immaterial except to impeach the boys who said it was so muddy they had difficulty getting up a hill. Not less than three witnesses testified on the trial that the defendant was not with the boys that night on that trip. This offered testimony could not be other than cumulative and impeaching and therefore is not a basis for a new trial. It appears some of the witnesses gave the date of the theft as February 1 at the preliminary hearing, and at the trial February 2. This is urged as a serious discrepancy, especially when one of the defenses was an alibi. The complaint and information gave the date as the second. We see nothing to indicate that the defendant has not had a fair trial. The newly discovered evidence is not of the nature and kind to justify the granting of a new trial; neither does it indicate that with it a different result would be obtained. On the contrary, the trial court evidently thought the newly discovered evidence would not change the result. “A new trial should not be allowed on the ground of newly discovered evidence when such evidence appears to be competent only for the purpose of impeaching the witnesses of the opposite party or when it is merely cumulative.” (State v. Lackey, 72 Kan. 95, syl. ¶ 3, 82 Pac. 527.) “Motions for new trial on the ground of newly discovered evidence, when not supported by a sufficient showing of diligence, and when such evidence is cumulative or merely contradictory of that already given, may properly be denied.” (State v. Miller, 90 Kan. 230, syl. ¶ 9, 133 Pac. 878.) “A new trial should not be granted because of newly discovered evidence unless it is material and such as leads the court to think that it would probably produce a different verdict.” (State v. Nordmark, 84 Kan. 628, syl. ¶ 5, 114 Pac. 1068. See, also, State v. Wallace, 110 Kan. 565, 204 Pac. 533; State v. Smith, 114 Kan. 186, 217 Pac. 307; State v. Harris, 126 Kan. 710, 271 Pac. 316.) The judgment is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: This action was brought to recover for the tuition of pupils residing in Wallace county who attended high school in the plaintiff district. The plaintiff maintained an accredited high school at Winona in Logan county, established under the Barnes law. The adjoining county of Wallace does not operate under that law, and there was no high school in the district in which the students resided for whose tuition the action is brought. There was a community high school in Wallace county about sixteen miles distant from the homes of the pupils in question, who resided several miles closer to the plaintiff school than they did to the community high school. Bills for tuition of the pupils in plaintiff’s high school, which had been audited and approved by the county superintendent of Logan county, were presented to the board of county commissioners of Wallace county. That board declined to make payment of the certified bills, and this action was brought. On a trial before the court without a jury judgment was given in favor of plaintiff for $516. The defendant appeals, and is contending that the findings and judgment of the court are not supported by the evidence; that the statute under which the claim was founded is unconstitutional, in that public funds raised by taxation for one purpose are being diverted to another, and further, that some of the tuition claims were barred by the statute of limitations. An objection is raised that the bills for tuition were not duly recommended by the county superintendent of Logan county, but the court on apparently, sufficient evidence found that that officer had approved the claims. The bills were received and filed, and the board considered them and refused payment. In their answer they set up as defenses grounds other than the insufficiency of the approval of the bills. There is little ground for contention as to this objection since a substantial compliance with the requirement for approval is sufficient. (Board of Education v. Reno Community High School, 124 Kan. 175, 257 Pac. 957.) There was also sufficient proof to show that the pupils possessed the necessary qualifications for entrance into the Winona high school. In reviewing the evidence, the trial court among other things stated: “Under these conditions the court perhaps would be led to and advised to conclude from the sparsely settled nature of the eastern part of Wallace county that the place where these students live was remote from and not convenient of access to any high school already in operation; that Wallace and Winona were the only ones at all within a region even so near as sixteen miles or thereabouts. As said, the county superintendent of Logan county, in which county Winona is situated, seems to have approved the entrance qualifications of the students, and the county superintendent of that county has definitely recommended in writing the payment of tuition for the several pupils in the most convenient school to the community within the county or the county adjacent thereto. Logan county is adjacent to Wallace county. Although the testimony shows definitely that the roads and means of communication, means of travel, so far as roads go, are as good to Wallace as they are to Winona, the only thing at all to be said in favor of Winona is that the way is about two miles and a half nearer, yet the court doesn’t think that it has a right to say that the mere matter of a difference of two and a half miles in distance cannot define or control a student or his parents in determining whether they shall send to the one school rather than to another. Nothing has been offered to show the difference, if any, between the schools at Wallace and at Winona.” It is provided that tuition shall be free in all high schools established under the Barnes high school law, and there is a provision that pupils living in an adjacent county duly qualified to enter may attend a Barnes high school in an adjacent county, and the board of county commissioners of the county where the pupils reside shall pay a prescribed tuition to the district where they attend. It is also provided that the bills for tuition shall be paid from the general fund of the county where such pupils reside. The statute applicable is R. S. 72-3014, and under it the defendant was liable for the tuition. (School District v. Community High School, 126 Kan. 51, 267 Pac. 23.) It is contended that the statute is invalid in that it would operate ■to divert funds levied for one purpose to another in a violation of section 4 of article 11 of the constitution. As we have seen, provision was made for payment of such tuition claims out of the general fund. It is conceded that that fund is provided for the payment of the ordinary current expenses of the county. It may be used for paying incidental expenses pertaining to the government of the county, and some discretion as to what are incidental is vested in the county commissioners. Some unusual expenses may be paid from it if there is a surplus in the fund. It was competent for the legislature to declare that small claims like those involved here are a current expense, payable out of the general fund where such payments will not deplete the fund. (State, ex rel., v. Raub, 106 Kan. 196, 203, 186 Pac. 989.) A like question was raised in State, ex rel., v. Thomas County Commissioners, 122 Kan. 850, 253 Pac. 406, where the question was fully .discussed and authorities cited. It was there held that such a provision was not a violation of section 4 of article 11 of the state constitution, and for the same reasons the provision in question cannot be held invalid. Another contention is that some of the claims presented were barred by the statute of limitations because action thereon was not brought for more than two years after the cause accrued. These bills were presented to the defendant on June 2, 1924, and the suit was begun on May 21, 1927. It appears that the claims were duly presented to the defendant and in good time. The claims arose un der and are liabilities created by statute upon which actions may be brought within three years. (R. S. 60-306, subdiv. 2.) Some other objections are made which are not deemed to be substantial, and finding no error in the record, the judgment is affirmed.	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The opinion of the court was delivered by Dawson, J.: The state invokes mandamus to compel the state highway commission to proceed in conjunction with the board of county commissioners of Dickinson county to let contracts to complete certain improvements heretofore authorized on a state highway in Dickinson county. The material facts set out in the application for the writ, and which are conceded to be true by defendant’s motion to quash, are these: Some three years ago the board of county commissioners of Dickinson county, in conjunction with the state highway commission and with the approval of the proper federal authorities, designated one of the principal public roads running south from Abilene to the county line as a state highway. The road has heretofore borne the name of the “Sunshine Trail” and its official designation is now state highway No. 15. The state highway commission adopted a resolution that this highway should be improved with federal aid, and projects to that end were perfected and termed projects No. 370A and No. 370B. In furtherance thereof the Dickinson county commissioners employed civil engineers at a cost of $4,000 to prepare plans and specifications for the proper construction of the road. Under these plans and specifications the road was field checked and approved by the highway commission. In further pursuit of this undertaking and in conformity therewith the Dickinson county board purchased five feet of land on both sides of the road to give it the requisite width of. 60 feet. This cost $2,500. Other land required to conform to the engineering plans cost $500. Hedges were uprooted at a cost of $6,400. These necessary expenditures have already exceeded $17,000; and in addition thereto certain abutting landowners, in reliance upon the official proceedings for the improvement of the road, have permitted their trees to be cut down to widen the road without charge to the county, but such parties will have a just and heavy bill for compensation for their trees if the road improvement .is not prosecuted to a conclusion as officially determined. Other allegations of plaintiff’s application for the writ show that the requisite funds are available to warrant the letting of contracts to complete the authorized improvements of the highway, and that the Dickinson county board are and for some months past have been ready to let the contract for the completion of the road. But the defendant, the state highway commission, declines to give its assent thereto and declines to cooperate with the county board in any manner toward the prosecution and completion of the improvement to which it has unreservedly committed itself. On plaintiff’s application, based upon the foregoing allegations of fact, an alternative writ of mandamus was issued to the state highway commission. That body makes response by filing a motion to quash the writ on the ground that the facts alleged do not constitute a cause of action. The question of law thus raised has been briefed by the parties, and the cause has been argued and submitted for determination. The prosecution contends that all the discretionary matters concerning the improvement of this road have already been determined by the cooperative and conjunctive action, sanction, and approval of the county board, the state board, and the federal authority, and that nothing remains but the ministerial or administrative duty of letting the contract for carrying to complete fruition what all these official functionaries have already determined to do. On the other hand, the state highway commission contends that, notwithstanding its earlier action approving this road improvement and all that it has hitherto done for that purpose, the matter still continues to be one wholly within its discretion, and that it has discretionary power to refrain from carrying to completion this road project to which it has given its sanction and approval. A majority of this court espouse this view of the powers of the state highway commission. The court notes particularly the absence of any pleading which fairly or impliedly charges the state highway commission with arbitrariness, abuse of discretion or bad faith; and the court therefore feels bound to give to the commission the benefit of the usual rule of law that official duty or official conduct is always presumed to have been rightfully discharged, and that the commission may have had excellent reasons for not going ahead with the road projects concerned herein. The motion to quash is sustained and the cause is dismissed.	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The opinion of the court was delivered by Smith, J.: This was an action for damages for injuries sustained by being thrown off a truck on account of the negligence of the driver. The verdict was in favor of defendant. The trial court overruled a demurrer of defendant to the evidence. After the verdict the trial court sustained the motion of plaintiff for a new trial on two specific grounds. Defendant appeals from the order overruling the demurrer to plaintiff’s evidence and from the order granting the plaintiff a new trial. Plaintiff was employed on an FERA project in Cowley county. Every morning the men employed on different projects met at the courthouse. From there they were transported in trucks to their work. Defendant was a truck driver in the employ of the county. On the morning when the injury to plaintiff occurred plaintiff was assigned, to ride to work on the truck driven by defendant. The back of the truck was a flat bed with a piece of steel around the edge about three inches high. On each side there was a 3 by 12 plank laid down flat on the truck bed. This made it about even with the piece of steel. Plaintiff was sitting on the plank on the left-hand side of the truck over the rear wheel with his legs hanging over the side. On the way to the job where plaintiff was employed this truck was being driven north on a street in Winfield. At a certain corner the route compelled this truck to turn to the east. There was a depression running parallel with the street upon which the truck was being driven north. This depression was about twelve inches deep. From the corner on east there was quite a steep hill. When the truck turned this corner plaintiff was thrown from the truck and injured. The conclusion reached by this court makes it necessary to consider only the demurrer to the evidence of plaintiff. The negligence with which the petition charges defendant is that he operated the truck at a high, careless, reckless and negligent rate of speed. It charged that this speed was thirty miles an hour. The petition further charged that the truck was “jerked and swerved” so as to cause the back end of the truck to “whip and skid”; also, that it struck the depression and bump in “a rough and violent manner.” The petition further alleged that these things were done “without giving an adequate warning or slowing down said truck.” At the trial of the case the charge of excessive speed was not relied on. On consideration of a demurrer to the evidence all evidence favorable to sustaining the cause of action must be taken as true. Further, all reasonable inferences to be drawn from that evidence must be indulged in favor of the plaintiff. With this rule in mind, we will examine the record in this case. All parties admit that the truck turned the corner; that the depression had to be crossed as the truck turned east; and that the plaintiff was thrown off and injured. Indeed, there is but little dispute about the details. We will use the testimony of plaintiff for that. He gave the speed as the truck reached the corner driving north at twelve or fifteen miles an hour. He testified the truck hit the drainage ditch at an angle; that he would judge there was room enough to have pulled over so that the truck would have hit the drainage ditch almost squarely. He testified further— “A. That truck when it hit that depression it gave it an awful — throwed it sideways — first go down on one side then down on the other — hit it in a slant. “Q. Was it a severe jolt? A. It was. “Q. Did that dislodge you? A. It did. “Q. You said something here and they have said something about shifting gears. Were those gears shifted there as you were coming around that turn? A. It was shifted, I believe, right on the turn. “Q. Did that cause any jerking motion of the truck in addition to this side bounce you told us about? A. When he shifted the gears he had to release his clutch, then when he let his clutch back in it jerked the truck. “Q. Did that jerk come at the same time this side motion was going on as you crossed there? A. Yes, sir. “I did everything I could to prevent myself from being thrown off. I was thrown, I would say, eight or ten feet to the north of the truck.” When analyzed it will be seen that the speed of this truck was nothing out of the ordinary. It could not have been driven much slower and kept going at all. This leaves the facts that the truck hit the depression at an angle and shifted gears while turning the corner as the acts of negligence. The defendant did not owe the plaintiff the duty to exercise an unusually high degree of care. He was bound to operate the truck as an ordinary reasonable man would operate it. Plaintiff argues that defendant should have swung over to the west when approaching the corner so that he could have turned to the east and hit the depression squarely. The argument is that had the turn been made in this way there would have been no lurching of the truck. There are two drawbacks to that argument. The first is this court cannot say that an ordinarily reasonable man would have swung out to the west and then turned so as to hit the ditch squarely. In fact, that way of making the turn appears to this court to be an unusual manner in which to make the turn. The second is that this court is not convinced that hitting the depression squarely would not have shaken plaintiff up just about as badly as hitting it on a slant. The matter is so close that we cannot say that the failure to make the turn in that manner constituted negligence. There remains the matter of the shifting of gears while turning the corner. The record is not clear, but since there was a steep hill just ahead it is a safe assumption that the shift was into a lower gear. This was such a natural and ordinary procedure that this court cannot say that the act of defendant in doing it was anything that the ordinarily reasonable man would not have done. It follows that the demurrer of defendant to the evidence should have been sustained. The judgment of the trial court is therefore reversed with directions to enter judgment for the defendant.	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The opinion of the court was delivered by Thiele, J.: The question presented here is whether an appeal from the judgment of a county court to the district court was properly perfected. A complaint was filed in the county court of Morris county alleging a certain automobile was used by one Curtis for transportation of intoxicating liquors and was a common nuisance. A warrant was issued and the automobile was seized. In due time the notice required by R. S. 21-2164 was given and served on Lon’s Car Exchange, which held a chattel montgage on the automobile. Service was also had on the Union Finance Company, which was the assignee of the chattel mortgage. Thereafter the sheriff made due return of the notice, which showed he was unable to find Curtis in his county. The company filed its intervening petition, in which, among other things, it alleged its ownership of the chattel mortgage on the car and the note secured thereby; that it purchased the note and chattel mortgage from Lon’s Car Exchange in good faith, for full consideration and without knowledge the automobile described was to be used or was being used in violation of law, and that if the automobile was unlawfully used in transportation of intoxicating liquor it was without knowledge of the intervener, and it prayed for appropriate relief under Laws of 1935, chapter 158, being an amendment of R. S. 21-2165. The state answered the intervening petition, admitted ownership of the note and chattel mortgage, etc., and denied intervener was without notice as to the unlawful purpose for which the automobile was being used, etc. On trial the county court found Curtis was using the automobile to transport intoxicating liquor in violation of law and that it should be forfeited, and that its value was approximately $500; that the Union Finance Company was not an innocent holder and that its claim to the car or proceeds should be denied, and judgment was rendered accordingly. The trial was on October 8,1935. On October 17, 1935, the intervener gave written notice of appeal, and at the same time filed its bond in the sum of $1,000, which bond was approved by the judge of the county court. No objection as to the form or sufficiency of the notice of appeal or of the bond seems to have been made, but on the same day the plaintiff filed its motion that the appeal be dismissed— “For the reason that said appeal was not perfected in accordance with the laws of the state of Kansas in Revised Statutes 21-2166 and 63-401, the same being the laws of said state of Kansas governing appeals concerning the forfeiture of automobiles used in the transportation of intoxicating liquor.” On November 4,1935, the motion to dismiss the appeal was heard and allowed, and the intervener appeals to this court. Before entering upon a discussion of the statutes relied upon by the state as furnishing reason why the appeal should be dismissed, it should be noted that a proceeding to abate a liquor nuisance or to confiscate an automobile used to transport intoxicating liquor, is a civil and not a criminal action. (See State v. Powell, 120 Kan. 731, 732, 244 Pac. 1053, and cases cited, and State v. Bennell, 137 Kan. 183, 185, 19 P. 2d 443.) It is rather obvious that the proceedings to forfeit the automobile were had under Laws of 1919, chapter 217, appearing as R. S. 21-2162 to 21-2167, inclusive. The sixth section (R. S. 21-2167) provides the act shall not be construed to affect Laws of 1901, chapter 232, section 4 (hereafter referred to as R. S. 21-2135) and other designated statutes, but shall be construed as supplemental to the laws then in force relating to intoxicating liquors. Under the fifth section (R. S. 21-2166) the state, any defendant, or other person claiming the property seized or an interest therein may appeal from the judgment in the manner “provided for taking appeals in criminal cases,” and provision is made for bond of not less than $100 nor less than double the value of the property as fixed by the court, etc. R. S. 21-2135, above referred to, provides for judgments in nuisance cases, and, in part, recites: “Either the state or any defendant or other person claiming the property seized may appeal from the judgment of the court in any such special proceeding against property seized, in the manner provided for taking appeals in criminal cases, except that the appeal must be taken within ten days, unless the time be by the court, for good cause shown, extended;” and provides for bond of not less than $100 nor less than double the costs adjudged. In both of the above statutes the conditions of the bond are the same, i. e., prosecution of appeal without delay, and if judgment be rendered against appellant on appeal he will satisfy the judgment and costs. It would appear that the intervener, under the above statutes, could appeal within ten days from date of the judgment upon giving requisite notice and filing a sufficient bond. The state has not filed any brief and we therefore assume from its motion to dismiss the appeal that it sought and procured dismissal of the intervener’s appeal on the theory that under R. S. 21-2166 the intervener could appeal “in the manner provided for taking appeals in criminal cases,” and that such an appeal from a county court is governed by 'the code of criminal procedure before justices of the peace, in which it is¡ provided: “The defendant shall have the right of appeal from any judgment of a justice of the peace imposing fine or imprisonment or both, under this act, . . . No appeal shall be granted or proceedings stayed unless the appellant shall within twenty-four hours after the rendition of such judgment, enter into a recognizance,” etc. (R. S. 63-401.) and that the bond not having been given within the twenty-four-hour period, the attempted appeal was without effect. Such a theory cannot be sustained. It will be noticed first that the provision as to appeal in the justice code refers only to defendants. When R. S. 21-2135 was enacted, the legislature gave claimants to property sought to be forfeited a right of appeal, fixed the time for taking the appeal, and provided for a bond that did more than require appearance at the next term of the district court. It requires no citation of authority to show that this act, dealing specifically with a definite situation, took precedence of the terms of the general appeals provision in the justice’s code. It must be held that by reason of R. S. 21-2167 the time for taking appeal is fixed by R. S. 21-2135. From the record it appears the appeal from the county court to the district court was dismissed because the intervener did not file its bond on appeal within twenty-four hours from the time the judgment was rendered. Such an order of dismissal was erroneous, and is reversed. The cause is remanded with instructions to set aside the order dismissing the appeal, to reinstate the action and to hear the same, on the merits.	[ -16, 118, 89, -68, 10, -32, 42, -104, 64, -11, -9, 83, -85, -46, 17, 41, -22, 61, 116, 98, -45, -78, 3, -85, -110, -77, -37, -35, -79, -39, 118, 95, 77, 48, -54, 29, 70, -56, -59, 80, -50, 5, 57, 105, -39, 16, 52, -117, 87, 15, 81, -113, -29, 46, 24, -53, 109, 40, -37, -71, -48, -16, -113, -113, 127, 6, -109, 4, -116, -91, -40, 14, -112, 17, 0, -8, 112, -74, -122, -12, 5, -119, 8, 38, 102, 16, 93, -51, -32, -119, 46, -2, -121, -90, 26, 88, 74, 65, -106, -99, 124, 18, 6, -4, -18, 21, 25, 108, 1, -113, -78, -109, 13, 116, -102, 11, -49, -83, 52, 113, -51, -58, 93, 20, 26, 27, -122, -74 ]
The opinion of the court was delivered by Johnston, C. J.: Grant Beam brought this action to recover from the Farmers Union Mutual Hail Insurance Company, for a loss sustained to a corn crop by a hailstorm on September 15,1926. The jury returned a verdict for plaintiff in the sum of $115, with interest thereon from September 15,1926. The defendant appeals. The errors assigned are the admission of opinion evidence, the refusal of the court to sustain a demurrer to plaintiff’s evidence and to instruct a verdict for defendant, the overruling of a motion for a new trial and in the rendition of a judgment for plaintiff for damages and an attorney’s fee. The policy insured against loss by hail only, that in case of total loss of the crop the amount specified in the policy should be paid, and in case of a partial loss it should be paid in the proportion which the loss sustained bears to the total risk, but that in no case would any claim for a loss under five per cent be allowed, nor for any loss occurring after the crop had been harvested, nor if it was not harvested in time. Only a partial loss was sustained by the plaintiff for which he asked $150. There is no dispute that a hailstorm had occurred, nor that some injury to the crop had been caused by hail. Shortly after the hailstorm several persons examined the field and found stalks of corn broken over, ears of com lying on the ground and some of the ears washed into draws and beaten into the ground. There was testimony to the effect that corn might be broken down through the action of chinch bugs and that ears would be knocked off by wind and rain, and it appears that none of the witnesses undertook to testify that all of the stalks broken down and all the ears knocked off of the stalks was the result of the hailstorm. The insurance was limited to the loss occasioned by hail only, and defendant insists that plaintiff failed to prove the damage done by hail and further that the proof offered by him to establish his loss was not admissible. Plaintiff undertook to prove loss by expert testimony. He called witnesses who stated that they were farmers, had raised com and witnessed the effect of hail upon a crop of corn, and further that they had made an examination of plaintiff’s cornfield and then they gave their opinion as to the percentage of damage done. Plaintiff, who said he rode a horse through the field, was asked what in his opinion was the percentage of damage done by hail. Over the objection of the defendant that his opinion was not competent but was a question for the jury to decide, the evidence was admitted and in fact all of plaintiff’s witnesses were thus qualified and were allowed to testify that in their opinions the damage done was from twenty to twenty-five per cent of the crop. Besides these opinions the witnesses stated that they saw ears of corn on the ground, stalks broken down, com washed into the draws, which in some cases was covered by mud. Some of them said that the stalks might be broken down by wind accompanied by rain and might have been broken down as a result of being weakened by chinch bugs. They said they saw evidence of wind and bugs in the field, but as to how much was so affected they did not undertake to state, nor did they testify to the comparative loss resulting directly from any one of the causes, nor from hail alone. In their opinions they gave the amount of the loss or damage suffered instead of stating the facts and circumstances as to the condition of the com resulting from hail and thus, let the jury, whose function it was, assess the amount of damages. The questions were the equivalent of asking the witnesses how much damage was done, the ultimate fact which the jury were called to decide. The damage sustained was the real point in controversy and should have been determined by the jury from facts shown, and not from opinions giving the lump sum of the loss sustained. Testimony might have been given as to the condition of the com, the proportion of the ears knocked off by hail, the quantity of that knocked off that was rendered valueless. As part of the corn was practically mature some of that on the ground could have been saved and was at least not entirely without value, and it could have been shown about how much of it could have been saved. The witnesses from their examination could have given a fair estimate of how much of the stalks were blown down by wind and how much corn was knocked off by hail, and how much, if any, had fallen over as the result of being infected with chinch bugs. It is argued that the witnesses qualified as experts and were therefore competent to give opinions, but if it were granted that the matter was the subject of expert evidence the answer to the questions was still one within the province of the jury, and witnesses although experts could not assume the functions of the jury and give their opinions. (Murray v. Woodson County, 58 Kan. 1, 48 Pac. 554.) In Sherman Center Town Co. v. Leonard, 46 Kan. 354, 26 Pac. 717, evidence was admitted as to the loss sustained by the failure of a party to move a hotel building from one town to another, in compliance with a contract. After showing that the town where the hotel stood had been depopulated so that there were no guests or business at that place, also that the town people had moved over to another town where there was patronage and business to be had, and as to the cost of moving the hotel the witnesses were asked what damage was sustained by the failure to move the hotel and the answer was that the damage was $150 per month, besides the cost of moving the building. In reversing the case it was said: “The questions asked were objectionable, and the testimony given was inadmissible upon two grounds: First, the questions were objectionable because they did not call for specific facts, but permitted the witnesses to state a mere opinion, giving in the lump the amount of damages thought to be sustained. It is the function of the court or jury trying the case to determine from evidence properly presented what the amount of damages sustained is, and while it might be very convenient for the plaintiff to permit him and his witnesses to give the damages suffered in a lump, it would be a very unsafe practice to allow them to state the amount of damages supposed to be sustained, without regard to the facts or knowledge upon which their opinions were based. It is well settled that the practice is not permissible.” (p. 357.) In an action upon a policy insuring property against loss caused directly by'tornado, windstorm or cyclone, with a provision that it did not cover loss by snowstorm, and where the principal question in the case was whether the collapse of a building was caused by wind or the weight of snow thereon, witnesses were asked and allowed to answer and give opinions to the effect that the collapse of the building was caused by wind and not by the weight of snow. It was held that the question related to the essential inquiry in the case, that it was error to permit the opinions to be given by the witnesses, that the facts as to the condition of the building before and after the storm, the force of the wind at the time, the quantity of snow which fell thereon could have been shown, and that the issue should have been left to the determination of the jury, citing a number of authorities. (Darling v. Franklin Fire Ins. Co., 122 Kan. 620, 253 Pac. 245. See, also, W. & W. Rld. Co. v. Kuhn, 38 Kan. 675, 17 Pac. 322; C. K. & N. Rly. Co. v. Neiman, 45 Kan. 533, 26 Pac. 22; Upcher v. Oberlender, 50 Kan. 315, 31 Pac. 1080; Telephone Co. v. Vandevort, 67 Kan. 269, 72 Pac. 771; Oil Co. v. Drilling Co., 80 Kan. 261, 101 Pac. 1072.) That the evidence could have been produced to show the extent of the loss due to hail was demonstrated by that offered by the defendant, of farmers and other witnesses whcwent through the fields after the storm and saw the evidence of hail and its effect. In the examination made by them they observed marks of hail, one of them stating that he found that one ear out of fifty showed hail spots. Some of them stated that part of the corn, about one-half, was mature and that in some places the sunflowers and weeds in the field were still green, and they testified that hail effects were seen on these and on somé of the corn that was green. They also testified that ears of ripe corn would be knocked off by the wind, that there had been a heavy rain before the hailstorm which had washed ears of corn into a draw, but that the corn found in the draws was sprouted, showing that it had washed there before the hailstorm, since it could not have sprouted between the time of the hailstorm and that of their examination. A witness stated that in making a test he selected one hundred stalks in different parts of the field, and made a count of the injured corn in each selection. Where he found marks of hail he stripped the ears and thus learned whether the corn had been injured, and he stated the result of his examination. He also said he found stalks that were bent over, not broken off, which showed that the bending was caused by'chinch bugs, and that many ears on the ground did not show marks of hail. Another witness stated that he examined about forty or fifty rows of corn in different parts of the field and found a stated number of ears affected. Some ear’s were found on the ground, he said, which were dry, and he found corn washed into the draw, but whether it had been knocked off by wind or hail he could not state. He also said that he noticed chinch bugs in one of the fields. It is apparent that the extent of the loss may be shown by witnesses who have examined the fields and made a count of injured stalks in each part where conditions differ and thus give the jury a basis for determining the extent of the damage done, upon facts rather than upon the opinions of witnesses. It may be noted that some of the questions asked for the extent of the loss did not even confine it to that caused by hail, although the evidence shows that some of the injured corn and losses resulted from causes other than hail. While part of the loss was occasioned by hail we cannot hold that the inadmissible testimony, relating as it did to a vital issue in the case, was without prejudice. While defendant filed a demurrer to plaintiff’s evidence and also asked for an instructed verdict in favor of the defendant, at the end of the trial, both of which were refused, we think it is manifest from the record that defendant was not entitled to have either sustained. Plaintiff suggests that defendant is not entitled to a review of the case because counsel did not appear and orally present the motion for a new trial at a time set for its consideration. A motion was filed which covered the grounds assigned as errors. These grounds, it appears, had been twice argued before the court and authorities cited when rulings were made. It is, of course, the duty of counsel to assist the court by clearly stating objections to rulings for which a new trial is asked (Riverside v. Bailey, 82 Kan. 429, 108 Pac. 796), but the errors had been sharply and persistently pressed upon the court with arguments and authorities so that it was in full possession of the points and, as .counsel says, it was possessed of all the aid which he could give. The fact that counsel did not repeat in an oral argument on a motion for a new trial grounds which had been previously and fully presented does not warrant the overlooking of the grounds of alleged error nor the denial of a review of the • assignments of error. For the errors pointed out the judgment is reversed and the cause remanded for a new trial. Buech, J., not sitting.	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The opinion of the court was delivered by Dawson, J.; This was an action to recover on a policy of hail Insurance on a crop of growing wheat and barley in Haskell county. In 1927 plaintiff held one of defendant’s hail insurance policies •on 190 acres of wheat and 50 acres of barley. During the growing season about 30 acres of the wheat were destroyed by drought, and on June 2 the remainder was totally destroyed by a severe hailstorm. Plaintiff notified the local agent of defendant on June 3. About June 20 the defendant’s adjuster examined plaintiff’s fields, and in settlement of any and all claims for hail losses he offered to return the plaintiff’s promissory note for $125 which had been given as the premium for the policy of insurance. This offer was declined and this action begun. Plaintiff alleged the facts and set up a copy of the policy with all its conditions appended thereto. Some of these provided that if the insured did not notify defendant by registered mail within 48 hours after any hail damage suffered by him the insurer would not be liable; and if a detailed statement of such damage with verified proof of loss were not likewise delivered to the insurer within 60 days there would be no liability; and another stipulation of the policy was that if the crop damaged by hail would not have paid expenses of harvesting, threshing, and marketing, and yield some profit in addition thereto if there had been no hailstorm, the insurer would not be liable. Defendant answered alleging that plaintiff had not furnished the stipulated proof of loss within 60 days, and that plaintiff’s crop of wheat and barley had been totally destroyed by drought before the hailstorm of June 2. Jury trial; general verdict for plaintiff; and special findings, viz.: “Question One. (a) If you find for the plaintiff, how much do you allow for damage to his wheat? A. $800. “(b) How much for damage to his barley? A. $250.” Judgment was entered accordingly and defendant assigns and argues several errors, the first of which pertains to the overruling of its demurrer to plaintiff’s evidence. Defendant directs attention to the precedent requirement of the policy that, it should receive notice by registered mail within 48 hours. However, this defense is apparently an afterthought, for the answer did not plead such want of notice. Moreover, some sort of compliance with this provision was given, since it did bring defendant’s adjuster and he made a substantial offer of settlement. These incidents constituted a waiver of whatever was lacking in the required formality of the 48 hours’ notice. (Mayse v. Great American Ins. Co., 123 Kan. 692, 256 Pac. 1002; Kinney v. Hudson Ins. Co., 127 Kan. 264, 273 Pac. 416.) It is argued, however, that the rule-of the cases .just cited does not apply here because defendant’s offer to settle was not for any sub stantial sum of money, and that the mere offer to return plaintiff’s note was practically no offer of payment at all. We cannot approve that contention. A promissory note for $125 whose maker has not been financially discredited is presumably á consideration of substantial character. Error is also based upon the trial court’s instruction touching the requirement that plaintiff should furnish proof of loss within 60 days. While an issue of fact was joined on that point by defendant’s answer, yet the evidence made it perfectly clear that this proof was timely made and acted upon by defendant long before the 60 days had expired, and consequently it is immaterial what the court instructed on that matter. That such instruction was superfluous under the circumstances was all that can be said against it, but it is not suggested that the giving of it confused the jury. Error is also predicated upon the court’s refusal to rule that the burden was on the plaintiff to prove that the crop of wheat and barley would have paid expenses and a profit. We do not think that burden rested on plaintiff. In the first place, no such defense was fairly pleaded, but if the nebulous reference in defendant’s answer touching the destruction of the crop by drought prior to the hailstorm be so construed, then it was incumbent on defendant to back its pleading with some evidence sufficiently tangible to convince the jury. It is argued that the plaintiff should bear the burden of adducing evidence on that point. We think not; but in this case he did do so. Plaintiff’s evidence, uncontroverted, tended to show that only 30 acres of the wheat was ruined by drought, and that 160 acres of it was in good growing condition and an average crop that year in that community (from 8 to 15 bushels per acre). We think a western Kansas district court and jury did not need formal evidence to prove that an average wheat crop on a quarter section of land will pay expenses and return some profit to the grower. (State v. Phillips, 106 Kan. 192, 186 Pac. 743; 5 Wigmore on Evidence, 2d ed., §§ 2570, 2571, 2581; 23 C. J. 64, 166; 14 R. C. L. 1057 et seq.) We come, however, to one point made by defendant for which plaintiff has no ready answer. Plaintiff’s formal but undated proof of loss, reads: “Notice is hereby given that I the undersigned sustained a hail loss the night of June 2, 1927, on my growing crop consisting of wheat under policy number 2359 P, dated April 21, 1927, which expires September 1, 1927. “On % interest in 190 acres of wheat in V2 sec. 16, T. 29, R. 33, insured for $5 per acre, no other insurance, that said loss is estimated to be 100 per cent, determined as follows. “By actual count 100 per cent down, caused by hail.” [Verification.] This proof of loss furnished no information about any damage to the barley crop and did not intimate that plaintiff expected any reimbursement therefor. Plaintiff's demand for damages for the loss of the barley was consistently resisted in defendant’s answer and throughout the trial. Mayhap a complete failure to furnish proof of loss could be waived, and waiver might similarly be invoked if the information required by the rules of the company and stipulations of the policy were merely scant or indefinite, but the absence of any reference to damages to the barley in a proof of loss giving specific information concerning damage to the wheat cannot be supplied by waiver. When the adjuster offered the return of the $125 note he knew of the claim of 100 per cent loss of the wheat, and presumably knew he was waiving any want of notice or want of strict compliance with the requisites of the proof of loss concerning the wheat, but it would not be fair to build up therefrom a waiver to cover a total want of proof of loss as to the barley. A waiver of a contract right is a voluntary and intentional renunciation of it. (Street Lighting Co. v. City of Wichita, 101 Kan. 452, 168 Pac. 1090.) • While the adjuster’s offer to settle could fairly be construed as a waiver to any insufficiency in the proof of loss as to the wheat because he knew of plaintiff’s claim therefor, that waiver could not be extended to cover damages to the barley for which no claim had been made. It follows that the judgment for plaintiff must be modified by eliminating the item allowed for the barley, and thus modified it will be affirmed.	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The opinion of the court was delivered by Burch, J.: The action was one to compel the city to issue a building permit contrary to provisions of a zoning ordinance. The district court held the ordinance to be unreasonable and arbitrary. The city appeals. The ordinance divided the city into three zones, a business zone, a residence zone, and an unclassified zone. The relation of the business zone to the residence zone at the place in controversy is disclosed by the accompanying map. Plaintiff owns the three 25-foot lots fronting on Main street at the northeast corner of block 57. He has occupied the lots as a residence since 1881. The zoning ordinance was passed in March, 1928. In October, 1928, plaintiff applied for a building permit for a structure to be used by himself or his “assigns,” the lots being worth, for “business purposes,” $13,250. The structure was called a “master service station,” to be used— “For full service to automobiles and other auto vehicles; this service to include gas, oil, ignition, tires, auto wash, grease, battery service, and brake testing. “This plant or station will be heated by natural gas. “The specifications of the erection of this plant call for white stone facing, and the proposed cost of the plant according to specifications is 3533,000.” The application also covered construction of. approaches to the service station from Main and Ninth streets. The court made findings of fact. Finding No. 1 merely incorporates into the court’s findings a stipulation of the parties containing seventeen paragraphs. The material findings follow: “Finding No. I. “6. That block 57 of Independence city is bounded as follows: On the north by Main street, on the east by Ninth street, on the south by Maple street, and on the west by Tenth street, and has a 20-foot alley running east and west through it. / “7. That Main street north of block 57 is 100 feet wide, and is paved 30 feet wide, with 35 feet of parking reaching from the curb line at the paving to the lot line. “8. That Ninth street, east of block 57, is 100 feet wide, with 40 feet of pavement, and 30 feet of parking on each side, reaching from the curb line to the lot line. “9. That lying directly east of block 57 is block 56, with a 20-foot alley extending through it from east to west. Main street lies to the north of block-56, and is paved the full width, and that block of Main street on both sides of the street is a business street and used for business purposes. “The south half of block 56 is occupied by three residences, and a filling station is located on the southeast corner of that block. “10. Immediately north of block 57 on the north side of Main street is block 40, with a -20-foot alley extending through it from east to west. The south half of block 40 is occupied for residence purposes, the improvements ranging in cost from $5,000 to $15,000 for each property, there being five residence properties on said half block, and said block is in the business zone. “11. That block 57, where plaintiff’s property is located, is occupied wholly for residence purposes, and the north half of the block fronting on Main street is occupied by five residences, the improvements ranging in value from $4,000 to $15,000 each, for residence purposes. That plaintiff’s property for business purposes is worth $13,250. “12. The south half of block 57, fronting on Maple street, is occupied by two residences, one located on the southwest corner of the block, of the value of $35,000, and one located on the southeast' corner of the block of the value of about $20,000. Finding No. II. “The court finds that the property in question, located at the oorner of Main and Ninth streets, one block south of the Prairie Oil and Gas Company’s office building, also immediately across the street west from block 56, on the northwest comer of said block is located the Stafford Grocery store, a three-story brick building; that said property is located a half block west and across the street from the Booth hotel, a six-story brick building; that it is situated just two blocks west of the center of Pennsylvania avenue and Main street, two of the principal business streets of the city; that' the said property is situated one block west and one block south of the post office of said city, and one block west and one block south of the Booth theater, the largest and most modem picture house in said city; that said property is situated one block west and across the street from the Masonic Temple, a three-story building; that said property is also situated two blocks west and a block south of the comer of Myrtle street and Pennsylvania avenue, at which corner is located the Citizens First National Bank building, a- six-story concrete building with brick and terra cotta facing, and opposite and across the street north of said bank building is located the Commercial National Bank building, a six-story brick and concrete building, with terra cotta facing, which two buildngs are the largest general office buildings in said city; that sard property is located three blocks west and a block south of the city hall of said city, and three and a half block'west and a half block S9uth of the district courthouse in said city. “Finding No. III. “The original plan and plat of the city discloses that said lots owned by the plaintiff when laid out, making said lots 25 feet wide for business lots, facing north on said Main street in said business district. “Finding No. IV. “The court further finds that the travel on Ninth street adjacent to said property on the east, and Main street on the north, is extremely heavy, and that the parking space both north and east of the property in question is constantly being used, both at night and day, by those who have business in the commercial or business district of said city. “Finding No. V. “The court finds that placing said lots one, two and three, of block 57, outside of the zone for business purposes, such as is contemplated to be used by the plaintiff herein, is unreasonable and arbiti'ary.” By agreement of parties, maps, plats and photographs were considered as incorporated in the findings. The case is admirably presented. When plaintiff’s attorneys declared in the oral presentation of the case that practically at plaintiff’s doorstep are the finest business buildings in the city of Independence, and among the finest in the state of Kansas, the attorneys for the city exhibited pride; and when the attorneys for the city said block 57 is one of the finest residence blocks in the beautiful city of Independence, the attorneys for plaintiff seemed ready to applaud. Indeed, there is only one matter, either of fact or of law, with respect to which the parties are not in complete accord, and that is the conclusion of fact expressed by the district court’s finding No. V. It will be observed that the findings refer to no business building west of Ninth street except the Prairie Oil and Gas Company’s office building in the second block north of block 57. Except for a filling station on the southeast corner, the south half of block 56 is occupied by residences, and all blocks south of block 56 are residence blocks. The court’s finding No. Ill is make-weight, and the court’s findings II and IV disclose nothing of importance except adjacency to the business section of the city, and extent of traffic on Ninth and Main streets. In zoning the city for the purposes for which zoning may be established, the city was obliged to locate zone lines, and the findings of fact considered in connection with the maps and photographs disclose no more basis for a charge of arbitrary conduct on the part of the city than for a charge of arbitrary conduct on the part of the court in taking three lots out of the corner of a residence block for a service station.- Plaintiff says a dead line of business development was arbitrarily fixed across Ninth street east of his lots, and business expansion was permitted along Main street north of his lots, without cause or reason. These statements refute each other. The business district had spread southward and westward from a center of density until the edge touched a highly improved residence section at Ninth and Main streets. The city established the zone line so that expansion westward was limited on the south side of Main street, and was permitted on the north side. If the limitation was arbitrary, expansion on the north side was proper. If expansion on the north side was unreasonable, the limitation was proper. Prima facie, location of the line indicates consideration of the welfare of the city as a whole, and there is no finding that location of the line did not in fact represent the best judgment of the city based on careful consideration of the public and private interests affected. It is not enough to avoid the ordinance that use of plaintiff’s lots for the desired purpose is forbidden. One purpose of a zoning ordinance is to restrict use of city lots. There is nothing in the findings to indicate that a limitation was imposed on use of plaintiff’s lots for the benefit of other property owners in the block, although impairment of use of lots for private residences may be considered in excluding business buildings from a particular district. There is nothing in .the findings to indicate that a limitation was imposed on plaintiff’s lots merely ¿0 conserve esthetic appearance of a section of the city, although the despoiling of a fine residential district by erection of incongruous structures may be taken into account in establishing zones. There is nothing in the findings to indicate the city had in mind capricious exclusion of service stations generally, and the zoning ordinance was enacted before plaintiff’s exceedingly profitable opportunity presented itself. The catalogue of factors which may enter into the solution of the zoning problem is a long one. In order that a court may substitute its judicial judgment for the legislative judgment of the city, it is obliged to find facts which demonstrate that the city’s conduct departed from the realm of the reasonable and passed over into the realm of the arbitrary and capricious. In this instance the facts found are not sufficient for that purpose. The recent decision of the supreme court of the United States in the case of State of Washington, ex rel., v. Roberge (Advance Opinion No. 29, Nov. 19, 1928) has no application to the present controversy. In that case there was no legislative determination that erection and maintenance of the proposed philanthropic home would be inconsistent with the health, safety, morals or general welfare. The zoning ordinance implied that construction and maintenance of the institution was compatible with the public interest, but owners of a limited quantity of land were given power uncontrolled by standard or rule to prevent the use. The court held the delegation of power was repugnant to the due-process clause of the constitution. The judgment of the district court is reversed, and the cause is remanded with direction to deny the writ of mandamus and render judgment in favor of the city for costs.	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The opinion of the court was delivered by Btjrch, J.: The defendants, Pearl Hancock and W. C. Sanders, were convicted of violating the liquor law, and they appeal. Defendants were charged in the first count of the information with unlawful possession of intoxicating liquor, and in the second ■count with permitting others to keep intoxicating liquor on premises ■controlled by defendants. Sanders was convicted on the first count, and Mrs. Hancock on the second count. Mrs. Hancock conducted a restaurant in a two-story building in which she lived. Sanders was her cook. The place was raided, and a bottle of synthetic whisky was found in a can of floor-sweep in a room of the restaurant. A girl’s old silk crepe dress covered the floor-sweep in which the bottle was found. The officers found in Sanders’ car a gallon jug which smelled strongly of alcohol. After Sanders realized the premises were undergoing search he made persistent effort to elude the officers and escape. One attempt was momentarily successful. He got out of the building and ran, hatless and coatless, down an alley, but was captured as he came around the corner of a church. A contention common to both appeals is that the court did not give an instruction to the jury regarding circumstantial evidence. This is a misdemeanor case. In a recent first-degree murder case the court said: “The appellant also contends that ‘The court should have given an instruction with reference to circumstantial evidence.’ None was requested by the appellant, and she cannot now complain that none was given.” (State v. Boone, 124 Kan. 208, 212, 257 Pac. 739.) A contention common to both appeals is that the evidence was not sufficient to sustain a verdict of guilty. Good arguments are made on the evidence, as defendants treat it, showing there was no basis for inference of existence of essential elements of the crime charged. The arguments need not be stated in detail. This court does not weigh evidence, and is not concerned with quantity of evidence, or with inferences from evidence, opposed to the verdict. The court’s function is to ascertain if there was substantial evidence warranting the inference of guilt expressed by the verdict. Viewed from that standpoint, the evidence was open to the interpretation adopted by the jury. Sanders contends cross-examination of Mrs. Hancock to affect her credibility was unduly extended. In volunteering the contention, Sanders displays a fine spirit of chivalry toward Mrs. Hancock which was not manifested at the time the place was raided. On that distressing occasion he absented himself without leave. Mrs. Hancock suggests the cross-examination was probably confusing to the jury, but no objection to it was interposed at the trial. Sanders says he could not be lawfully arrested except on a warrant for his arrest, he had a right to go away, and the court instructed the jury on the subject of flight without informing them he was privileged to leave if he so desired. While the sheriff was directing search of the premises, he told Sanders he was under arrest. San ders did not testify that he planted himself on the rock of the constitution and the law, braved the sheriff who was invading his liberty, composedly put on his hat and coat, and retired in a dignified way from the scene of annoying occurrences. The evidence was that he moved furtively about here and there in the building until he thought he saw a chance to fly, and then he fled. At the trial he did not raise the question of authority to arrest and privilege to depart, and the error assigned is the invention of astute counsel who did not participate in the trial. The trial of the case was free from prejudicial error, the evidence was sufficient to sustain the verdict, a new trial was properly denied, and the judgment of the district court is affirmed.	[ -79, -22, -51, -67, 56, 96, 42, -4, 66, -91, -78, 83, -83, -46, 5, 107, -70, 127, 117, 105, -41, -73, 7, 65, -14, -13, 50, -107, -107, 75, -12, -2, 76, -92, -61, -43, 102, -54, -61, -48, -120, 5, 56, -61, 80, -110, 36, 58, -10, 15, -31, 31, -13, 44, 30, -57, 105, 44, 75, 61, 112, -8, -120, -99, -51, 22, -109, 35, -98, -121, -40, 44, -104, 49, 1, -24, 115, -92, -124, -12, 109, -119, 12, 98, 99, 33, 61, -21, 40, -119, 47, 110, -75, -89, 24, 1, 73, 32, -76, -99, 100, 112, 15, -16, -21, 85, 95, 124, -123, -49, -76, -79, -119, 56, -78, 124, -53, -95, 48, 117, -51, 106, 92, 101, 81, -39, -114, -105 ]
The opinion of the court was delivered by Marshall, J.: This action is one to recover damages for injuries sustained by the plaintiff in a collision between a street car, on which she was riding, and a coal truck on a street in Kansas City. Judgment was rendered in favor of the plaintiff, and the defendant appeals. One matter presented by the defendant is misconduct of counsel for the plaintiff in the examination of witnesses, in argument to the jury, and in altercations with counsel for the defendant. Counsel for the plaintiff asked improper questions of witnesses. When counsel for the defendant objected altercations would result. These altercations descended into personalities which had nothing whatever to do with the trial, and finally resulted into a personal encounter between them, for which each was fined $10. Repeated admonitions from the court' went unheeded. In the argument counsel for the plaintiff made statements which virtually amounted to instructions to the jury concerning the law of the case, and made statements to the jury concerning the issues which were not correct, and in regard to the witnesses for the defendant said: “I say they probably did the best they could under the tutelage they had, and I want you to go out and then come in and say to this great company, ‘You cannot run cars in Kansas City, Kansas, in that sort of style and maim its citizens, because when you do it will cost you at least three thousand dollars.’ ” Misconduct of counsel for the plaintiff continued during the entire trial, and no doubt can be reasonably entertained that it resulted in prejudice to thé defendant. Whether or not it did so result the judgment should be reversed because conduct of the kind shown by the record in this case should result in setting aside a verdict and granting a new trial wherever the verdict has been secured by counsel who have been guilty of such conduct. Other matters are presented by the defendant which appear to have merit in them. They are not discussed because this court has often admonished the bar that continued misconduct in the trial of cases may result in a verdict for the prevailing party being set aside. (Tidball v. Railway Co., 97 Kan. 396, 155 Pac. 938; Mischlich v. Morris & Co., 105 Kan. 63, 181 Pac. 619.) The judgment is reversed, and a new trial is directed.	[ -16, -22, -120, -49, 10, 98, 42, -54, 49, -127, -74, 83, -19, -49, 5, 47, -6, 125, 80, 43, -44, -77, 23, -93, -78, -13, 50, -59, -70, 94, 101, 111, 76, 112, 74, -107, 102, 74, -43, 84, -114, 62, -88, -32, -37, -96, -80, 62, 22, 7, 49, -98, -13, 42, 24, -49, 41, 44, -85, -71, -48, -80, -54, 5, 127, 16, 51, 4, -98, 7, 88, 56, -112, -79, 1, -84, 115, -78, -126, -12, 109, -103, 76, -90, 98, 33, 21, 71, -20, -120, 46, 123, 13, -89, -102, 24, -119, 13, -74, -33, 101, 16, 7, -8, -8, 21, 89, 108, 3, -53, -78, -80, -113, 55, -98, -53, -21, -125, 23, 100, -119, -30, 93, 5, 58, -101, -113, -74 ]
The opinion of the court was delivered by Burch, J.: The appeal is from an order sustaining a demurrer to a petition on the ground several causes of action were improperly joined. Hart traded to Hayes a stock of general merchandise and store fixtures priced at $4,000, and lots on which a store building stood priced at $2,000. Hayes traded to Hart a farm priced at $8,000, .and crops, tools and live stock on the farm priced at $2,000. Hart .also agreed to buy of Hayes hay, corn and poultry on the farm. The contract evidencing the transaction provided for deeds of real •estate and bills of sale of personal property, and contained the following provisions: “It is agreed between the parties hereto that final settlement of this agreement shall be made not later than August 1, 1926, same in cash, . . . “It is further agreed that the ownership of the above mentioned land, •crops, tools and live stock, now owned by said second party, shall remain in .second party until full payments have been made and agreements completed by first party. “Market price to be paid for corn, hay and poultry, and not to be removed from farm above mentioned until paid for in full. “All papers, deeds, abstracts, relative to this agreement, shall be placed in escrow with E. D. Boyles.” The petition pleaded the contract, and alleged that Hart defaulted in payment of $2,000, the balance of the price of the farm; in payment of $2,000, the price of the crops, tools and live stock; and in payment of $576, the price of the corn, hay and poultry. The petition alleged that Hayes fully performed the contract on his side, and contained the following specific allegations: Hayes deposited his deed with Boyles; at Hart’s solicitation, Boyles delivered the deed to Hart, who recorded it; Hart then fraudulently mortgaged the farm to Frederickson, who took the mortgage with full knowledge of the fraud. Frederickson was made a party. Mrs. Hart and Mrs. Frederickson were made nominal parties, as wives of Hart and Frederickson. Allen Gardner and his wife were made parties as agents of Hart in possession of the farm. The petition concluded with the following prayer: “Wherefore, plaintiff prays judgment against the defendant, J. G. Hart, in the sum of $4,576, with interest thereon at the rate of six per cent per annum since the 15th day of June, 1926; plaintiff further prays judgment against all of said defendants canceling said deed and said mortgage; and plaintiff further prays that said money judgment be decreed to be a first and prior lien upon said lands, to wit: [description], and that said premises be ordered sold to satisfy said lien.” The form of the petition was the result of effort to comply with orders of the court relating to separate statement of causes of action. The substance of the petition was this: A personal money judgment was sought against Hart for nonperformance of the contract; a lien pursuant to reservation of title in the contract as security, and foreclosure of lien, were sought to enforce payment of the money judgment. The depositary was guilty of breach of duty in delivering the deed to Hart, Hart committed a fraud by accepting the deed, recording it, and mortgaging the land, and as an incident to enforcement of lien Hayes sought nullification of the consequences of the fraud. The result is, there was no misjoinder of causes of action, although defendants other than Hart were not interested in the first cause of action which laid the foundation for personal judgment against Hart: “The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But' the causes of action so united must affect all the parties to the action, except in actions to enforce mortgages or other liens.” (K.S. 60-601.) The second cause of action adopted the allegations contained in the first cause of action, pleaded the deposit and wrongful delivery of the deed, and pleaded the fraudulent mortgage to Erederickson. As indicated, the prayer of the petition was that the deed and mortgage be canceled. The third cause of action merely furnished a basis for barring the Gardners as tenants of Hart in possession. ■Defendants contend there was a misjoinder of causes of action because the first cause of action was inconsistent with the second. The argument is that title to the farm passed to Hart and he was entitled to the deed, or title did not pass to Hart. By suing for the consideration, Hayes elected that title did pass. By suing to cancel the deed, he elected that title did not pass. The argument misconstrues the petition. The prayer for lien and foreclosure of lien renounced title in Hayes, except for purpose of security, and what he desired was removal of obstruction to enforcement of security. He had a right to have the record purged of the wrongfully delivered deed and the fraudulent mortgage, and the only flaw in the petition, so far as the demurrer was concerned, was a purely technical one. The words “of record” should have been inserted in the prayer after the words “canceling said deed and mortgage.” The omission did not confuse the plain theory of the action, and the court should have disregarded it. The judgment of the district court is reversed, and the cause is remanded with direction to overrule the demurrer.	[ -15, 108, -103, 45, 58, 96, 74, -38, 96, -95, 39, 83, -55, 82, 0, 105, -12, 13, 65, 104, 84, -77, 22, -128, -45, -13, -21, -43, 57, 79, -25, 95, 79, 52, 66, -107, -26, -62, 65, 28, -114, 1, -71, -19, -35, 64, 48, 11, 52, 74, 101, -113, -13, 46, 93, 83, 109, 46, 123, 41, -47, -15, -86, 13, -33, 14, 16, 34, -106, -121, -56, 110, -104, 113, 1, -23, 114, -124, -106, 84, 75, -119, 8, 38, 102, 0, -11, -19, 10, -4, 46, 122, 29, -94, -112, 88, 10, 32, -98, -99, 121, 16, 39, 126, -29, -99, 29, 108, 1, -113, -42, -77, -101, 120, -102, 9, -13, 37, 49, 97, -51, -94, 92, 69, 118, -101, -113, -7 ]
The opinion of the court was delivered by Marshall, J.: This proceeding is one to determine whether or not the purchaser of real property at judicial sale is entitled, on redemption of the land from the sale, to recover interest paid on a prior mortgage on the land which was sold subject to that mortgage, where the purchaser at the time of redemption had not filed with the clerk of the district court receipts showing payment of interest after the sale. Judgment was rendered for the plaintiff, and the defendant appeals. The action was tried on an agreed statement of facts, as follows: “That on the 9th day of September, 1924, this action was brought by C. R. Blurton against F. F. Parsons for the recovery of $821.37; “That judgment was rendered on the 14th day of September, 1925, in favor of C. R. Blurton for the sum of $880.72, with interest thereon at the rate of ten per cent per annum from the date of the rendition of said judgment, and for costs; “That at the time of the rendition of said judgment, F. F. Parsons was the owner of the north half (N%) of section twenty-five (25), in township thirty (30), south of range forty-three (43), west of the sixth principal meridian, in Stanton county, Kansas, which land was subject to a mortgage in the amount .of $2,200 to the Joint Stock Land Bank of Kansas City, Mo. “That on the 23d day of December, 1925, execution was issued out of the office of the clerk of the district court of Stanton county, Kansas, which was levied upon the above-described land by the sheriff of Stanton county, Kansas; “That said land was sold by the sheriff of Stanton county, Kansas, as required by law, on the 23d day of February, 1926, and that the return of the sheriff under said execution shows that said land was sold to C. R. Blurton for the sum of $919.58, subject to said mortgage of $2,200 to the Joint Stock Land Bank of Kansas City, Mo. “That the sale so made by said sheriff under said execution was confirmed on the 29th day of June, 1926, and that the time for the redemption of said land from said sale was fixed at eighteen months; “That on the 1st day of November, 1926, F. F. Parsons and his wife conveyed the above-described land to the First National Bank in Dodge City, Kan., subject to all existing liens of record; “That on the 3d day of September, 1926, C. R. Blurton paid interest in the sum of $97.57 to the Joint Stock Land Bank of Kansas City, Mo., on said loan of $2,200; “That on the 4th day of October, 1926, C. R. Blurton paid interest in the sum of $77 to the Joint Stock Land Bank of Kansas City, Mo., on said loan of $2,200; “That on the 15th day of April, 1927, C. R. Blurton paid interest in the sum of $77 to the Joint Stock Land Bank of Kansas City, Mo., on said loan of $2,200; “That on the 16th day of April, 1927, the First National Bank in Dodge City, Kan., redeemed said land above described, by paying into the office of the clerk of the district court of Stanton county, Kansas, the sum of $1,002.68, which was the amount for which said land was sold at said sheriff’s sale, including interest and costs, but which amount did not include the interest payments made by C. R. Blurton to the Joint Stock Land Bank of Kansas City, Mo., as aforesaid; and “That on the 11th day of August, 1927, C. R. Blurton caused to be filed in tfie office of the clerk of the district court of Stanton county, Kansas, the receipts showing the payments of interest made to said Joint Stock Land Bank of Kansas City, Mo., as aforesaid. “The sole question presented for determination is the interpretation of chapter 199 of the Session Laws of 1925, as to whether or not C. R. Blurton is entitled to have returned to him the interest payments made by him to the Joint Stock Land Bank of Kansas City, Mo.” The statute, section 1 of chapter 199 of the Laws of 1925, in part, reads: “That section 60-3443 of the Revised Statutes of Kansas of 1923 be and it is hereby amended to read as follows: 60-3443. During the period allowed for the redemption of real property from sale under execution, special execution or order of sale, the holder of the certificate of purchase may pay the taxes on the lands sold, insurance premiums on the buildings thereon, and interest upon any prior lien or incumbrance thereon; and, upon the redemption of the premises from such sale, the holder of the certificate shall be entitled to repayment of all sums thus paid by him, together with interest thereon. The terms of redemption shall be, in all cases, the reimbursement of the amount paid by the then holder of the certificate of purchase, added to his own claim, and including all sums paid by him for taxes, insurance premiums and interest as shown by receipts or vouchers to be filed in the office of the clerk of the district court, with interest, together with costs, subject to the exemption contained in the next section.” The land was sold subject to a prior mortgage of $2,200. The defendant succeeded to the rights of the purchaser at that sale. The bank purchased the land from F. F. Parsons, the mortgage judgment debtor, in whose hands the land was subject to the payments of the interest on the mortgage. If the bank obtains the land without payment of that interest it gets it for less than it ought to pay. The purchaser of the land at the sheriff’s sale paid that interest which was a lien on the land, which in turn would have been subject to foreclosure under the mortgage if the interest had not been paid. Under the statute, he had a right to pay that interest. The purchaser, C. R. Blurton, did not comply with the statute in filing his receipts, but outside of the statutory provision the situation is such that equity demands that the bank should not obtain the land without paying the interest that had been paid on the mortgage. It follows that the judgment should be, and is, affirmed.	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The opinion of the court was delivered by Hutchison, J: This is an appeal by plaintiff from an order of the district court setting aside a judgment that had been rendered by default in the same cause against the defendant, G. E. Capsey, about nine months earlier, on the ground that it was void. The action was upon a note, and personal service was had upon all four of the defendants. A copy of the note was attached to the petition as an exhibit. Capsey’s name appeared only once on the note, and that was on the back thereof, just above the name of the payee as it appeared on the face of the note. The allegations of the petition were the usual ones against the maker of the note and perhaps others, but the only allegations as to defendant Capsey, except as to his residence, were as follows: “Thereafter and before due the said defendants, J. W. LePorin and G. E. Capsey, for a valuable consideration, indorsed said note, sold, transferred and delivered the same to the plaintiff herein; that the plaintiff is.the holder of said note in due course and for a valuable consideration; that said note is long past due and unpaid, and said defendants and each of them are indebted to the plaintiff in the sum of $1,610, together with 8 per cent interest from maturity and interest upon defaulting interest.” The journal entry shows personal service of summons on all of the defendants and that they were all in default for answer, demurrer, or other pleading. It further shows that the plaintiff “testified in support of her cause of action and introduced the note sued upon in said cause, together with indorsements thereon, showing signatures of the said defendants and each of them.” The journal entry concludes by showing that a personal judgment was rendered against all of the defendants. The defendant Capsey attacks this judgment as void under R. S. 60-3009, because the allegations of the petition are not sufficient to support the judgment. The trial court sustained this motion and set aside the judgment against defendant Capsey as void, and from this ruling the plaintiff appeals. At the outset it must be admitted that the petition was demurrable as far as the defendant Capsey was concerned, and appellee urges that because some of the usual allegations were lacking the petition was insufficient to sustain a judgment against Capsey, and that the judgment that was rendered was outside of the issues, citing the case of Gille v. Emmons, 58 Kan. 118, 48 Pac. 569, and others to support that view of the case and the ruling of the trial court in setting aside the judgment. The proceedings in the Gille-Emmons case and the case at bar are very much alike, except that' in the former case the pleadings showed no claim of the plaintiff for a personal judgment against Mrs. Emmons or an intention or desire to obtain such. As to her the judgment came within the rule stated in the early case of John P. Greer v. Daniel M. Adams, 6 Kan. 203, where it was said: “A judgment rendered without jurisdiction is void; and a judgment rendered upon a petition not alleging any cause, or pretense of a cause, of action, is void.” (p. 206.) There was no pretense of a cause of action against Mrs. Emmons for a personal judgment in that case. The same could be said, in New v. Smith, 86 Kan. 1, 119 Pac. 380, where there was rendered an affirmative judgment in favor of the defendant upon an answer amounting to a general denial, instead of dismissing the action when the plaintiff failed to establish his case. The most recent case cited by appellee on this subject is Brinkerhoff v. Bank, 109 Kan. 700, 205 Pac. 779, where it is said in the first paragraph of the syllabus: “A judgment is only conclusive between parties as to matters substantially in issue and actually litigated, and does not conclude the parties as to eveiything incidentally brought into the controversy or as to matters immaterial to the subject matter in litigation.” On the face of the pleadings in the case at bar it would appear to be within that rule. Surely the question of the claim against the defendant Capsey was a matter substantially in issue and actually litigated. The petition did state that he, for a valuable consideration, indorsed said note, sold, transferred and delivered the same to the plaintiff, and that he is indebted to the plaintiff. This is more than a pretense of a cause of action. The matter of his indorsement was substantially in issue, and the journal entry shows evidence was introduced concerning the signatures of the defendants and the indorsements. The defendant was fully advised by the language of the petition that he was being sued as an indorser of the note, notwithstanding some of the usual and proper allegations were omitted. Where a pleading imperfectly shows the matters substantially in issue the failure to plead all the usual and proper allegations in that particular connection is not such a defect in the pleading as to make it insufficient to support a judgment rendered thereon by default, when subsequently attacked as being void. In order to come within the provisions of R. S. 60-3009, so as to be set aside at any time, the judgment must be absolutely void. Want of jurisdiction is the usual reason for holding a judgment void. With a very few exceptions such want of jurisdiction is of two kinds, jurisdiction of the parties and of the subject matter. And generally where the court has jurisdiction of the parties and of the subject matter the judgment is not void, even when rendered by default. “Where the court has jurisdiction of the parties and the subject matter, a judgment entered by default quieting the title of a party in possession of land under a tax deed void upon its face as a conveyance is not a nullity, and will not be set aside on motion of a defendant filed more than three years afterward.” (Brenholts v. Miller, 80 Kan. 185, syl., 101 Pac. 998.) The same rule applies when there are defects, irregularities, or omissions in the pleadings. If there is jurisdiction of the parties and of the subject matter the judgment is not void. “Where a court has jurisdiction of the subject matter of an action and of the parties, a petition which alleges sufficient facts to challenge the attention of the court as to its merits, and to authorize the court to deliberate and act, is sufficient to sustain a judgment rendered in the action upon evidence, as against a collateral attack on the ground that the judgment is void; and this although the petition may have been demurrable on the ground that it did not state facts sufficient to constitute a cause of action.” (Wyandotte County v. Investment Co., 80 Kan. 492, syl., 103 Pac. 996.) “A judgment by default upon personal service of summons upon the defendant is as conclusive against him upon every matter admitted by the default as if he had personally appeared and contested the plaintiff’s right to recover.” (Miller v. Miller, 107 Kan. 505, syl. ¶ 2, 192 Pac. 747.) “When a court having jurisdiction of the subject matter and the parties to an action renders judgment therein, and the party aggrieved thereby fails to effect an appeal within the time and in the manner provided by law, such judgment is res judicata as to all matters necessarily involved in the action and, therefore, presumably considered by the court, save only such propositions appearing in the record as relate to the jurisdiction of the court over the subject matter and parties to the action.” (Manley v. Park, 62 Kan. 553, syl. ¶ 1, 64 Pac. 28. See, also, Hodgin w. Barton, 23 Kan. 740; Head v. Daniels, 38 Kan. 1. 15 Pac. 911; Sweet v. Ward, 43 Kan. 695, 23 Pac. 941; Carter v. Hyatt, 76 Kan. 304, 91 Pac. 61; McPherson v. Martinson, 115 Kan. 828, 224 Pac. 907; McLeod v. Hartman, 123 Kan. 110, 253 Pac. 1094; In re Hollis, 124 Kan. 345, 259 Pac. 793.) “A judgment rendered upon default, where the defendants were duly summoned and the court had acquired jurisdiction of the parties and the subject matter, is binding upon them, and errors, if any were committed, in its decision as to the sufficiency of the pleadings or in its findings upon the facts, must be corrected upon appeal and are not open to collateral review.” (Pattison v. Kansas State Bank, 121 Kan. 471, syl. ¶ 1, 247 Pac. 643.) In the last case cited the situation as to parties and the pleading was almost identical with that in this case. It was there held that the attack upon the judgment by motion of the representative of the defendant was a collateral one. But whether a motion filed in the same cause by a defendant to set aside a judgment as void after the time of appeal has passed is a collateral or a direct attack, is not so material or important. The vital question is whether the judgment is void or only voidable, and that is determined by an inspection of the record for jurisdictional defects. “By the weight of authority, whether a judgment is void or voidable is to be determined from an inspection of the record. If the record discloses the jurisdictional defect, the judgment is void; if it does not, the judgment is merely voidable.” (34 C. J. 514.) We conclude that there are no jurisdictional defects shown in the record in this case and that the judgment rendered therein in favor of the plaintiff and against the defendant Capsey was not void, and should not have been set aside. The ruling of the trial court in setting aside the judgment against the defendant Capsey as void is reversed, and the cause is remanded with instructions to set aside such ruling and reinstate the original judgment.	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The opinion of the court was delivered by Burch, J.: The action was one to recover damages for failure of a mortgagee to enter of record without charge satisfaction of the paid mortgage within sixty days after demand by the mortgagor, pursuant to R. S. 67-309. The mortgage was paid in July, 1926. On May 23, 1927, defendant received the following letter: “Goss-Nash Motor Company. J. I. Case Farm Machinery. Liberal, Kan., May 20, 1927. “Allis-Chalmers Mfg. Co., Milwaukee, Wis.: “Gentlemen — I enclose herewith release of mortgage to be executed by yourselves releasing the real-estate mortgage given you by L. E. Wilson and wife, covering on his residence property here in Liberal as additional security for the 20-35 Allis-Chalmers tractor which he purchased from you in 1924, and which was paid off by him at harvest time in 1926. We have sold this property for Mr. Wilson, and upon having the abstract certified to date, we find your mortgage still of record, and as this mortgage is a cloud on Mr. Wilson’s title and' is delaying the closing of his deal, we would thank you very much to sign and return this release to us just as soon as possible. “Thanking you in advance for you promptness in this matter, I remain, “Yours very truly, Goss-Nash Motor Co., By Ruth Goss, “Inc. HMG:Rag. For H. M. Goss.” On May 28 defendant replied that its records showed a release had been mailed to its branch office at Wichita when the mortgage was paid, that the matter would be investigated, and that the motor company would be advised of the result of the investigation. In due course of mail defendant received the following letter: “Liberal, Kan., June 2, 1927. “Allis-Chalmers Mfg. Co., Milwaukee, Wis.: “Gentlemen — We have your letter of May 28, and note what you say relative to the release of real-estate mortgage of L. E. Wilson and wife. Since receiving your letter we have taken this matter up with Mr. Wilson, and he advises us that to his knowledge he has never received the release of this mortgage, and if it has ever been received by him it has been lost or destroyed. “We see no reason why you would object to signing the release which we sent you, as it will then place Mr. Wilson in position to deliver title to this property showing this mortgage has been discharged, and as the matter now stands the delay is causing him considerable inconvenience, and if the mortgage is not released soon it may cause him expensive litigation. Since your mortgage is still of record, we cannot understand why you would have any objection to executing the release which we sent you and forwarding it to us, so that we would be in position to release this mortgage of record. “We would thank you very kindly to forward the release to us at your very earliest convenience. Yours very truly, Goss-Nash Company, By Ruth Goss, “HMG:Rag. For H. M. Goss.” On July 7 defendant mailed to the motor, company the release referred to, executed by the corporation by its treasurer and duly acknowledged by him. The corporate seal was not attached. On June 15 an attorney for plaintiffs wrote a letter to defendant, which defendant duly received, containing a formal demand for satisfaction of record of the mortgage pursuant to the statute. Within sixty days from date of the letter defendant complied with the demand. Wilson testified as follows: “I had Mr. Goss write the Allis-Chalmers Manufacturing Company for me . . . “Mr. Goss did not show me the letter he got back from the Allis-Chalmers Manufacturing Company when he wrote them. He told me what he heard from them.” It is true that statutory demand for satisfaction of record of a paid mortgage is not a formal or technical matter. It is sufficient if it fairly informs the mortgagee that record satisfaction of the mortgage is required by the mortgagor or his heirs or assigns. The ■ letters of May 20 and June 2 had no such effect. They purported to be written by a land agent who wished to have a release in his possession so he could close a sale. They were not statutory demands, and were not so regarded by the writer. That subject was first brought to the attention of the mortgagee by the attorney’s letter of June 15. Within the sixty-day period the mortgage was properly released. The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for defendant.	[ -13, 109, 120, 13, -118, -30, 58, -37, 72, -76, -77, 83, -17, -54, 20, 45, 126, 61, -28, 105, -43, -77, 55, -95, 82, -77, -7, -43, -67, -7, -28, 30, 77, 32, -62, -107, -32, -64, -59, 92, 14, -122, 40, -20, -35, 80, 52, 59, -108, 9, 85, 47, -29, 47, 29, 91, 109, 40, -19, 40, -48, -8, -117, 5, 111, 22, 17, 68, -112, 1, 88, 46, -112, -79, 0, -24, 114, -90, -106, 116, 69, 11, 9, 38, 103, 51, 69, -17, -52, -104, 6, -108, -97, -122, -80, 92, -126, 32, -66, -99, 114, 16, 7, 126, -21, -107, 29, 108, 7, -49, -42, -109, 47, 48, -102, 11, -17, 35, 34, 117, -113, -16, 93, 71, 122, 27, -122, -16 ]
The opinion of the court was delivered by Johnston, C. J.: This was a mortgage foreclosure proceeding in which the court adjudged the existence and priority of certain liens upon a tract of land and also determined the ownership of the legal title held to be subject to adjudged liens and also determined a claimed right of subrogation. The subrogation claimed by the appellants was denied, and they have appealed. Findings of fact were made, which are not in dispute, from which the following condensed statement of the transactions of the parties and of the mortgages and transfers of the property involved, has been taken. The land foreclosed was purchased by Clarence Marshall on January 12, 1923, and he continued to own it until December 29, 1925. On September 27, 1923, Marshall and wife executed a mortgage on the land to the Rafter Farm Mortgage Company to secure the payment of a loan for $2,000, which was recorded December 24, 1923. This mortgage was duly assigned to Kate Hoover and John Hoover, who remained the owners of it until it was paid on December 10, 1925. It was released of record on September 15, 1925. On December 1, 1923, the Marshalls executed another mortgage on the land to the Rafter Farm Mortgage Company for $1,050 which was recorded on December 24, 1923. Another mortgage which is spoken of as a commission mortgage was executed to the same mortgage company on December 1, 1923, which was placed of record March 19, 1925. It was assigned to one Raebuck, and was subsequently paid. The Marshalls were indebted to the State Bank of Holton and on February 19, 1925, they executed another mortgage on the land to that bank to secure a note for $2,000, which was. filed for record on March 13, 1925. On May 18, 1925, the Marshalls executed a mortgage on the land to Minnie B. Haas to secure a promissory note for $4,000, and this mortgage was recorded on May 19, 1925. After it was executed it was delivered to P. M. Haas, the husband of Minnie B. Haas, a loan agent of Holton, to negotiate it for the Marshalls, who desired to use the proceeds to pay the mortgages mentioned that were given to the Rafter Farm Mortgage Company, and also to reduce their indebtedness to the State Bank of Holton. P. M. Haas negotiated a sale of the Minnie B. Haas mortgage to W. L. Johnson, of Atchison. The note was indorsed and transferred by Minnie B. Haas without recourse, and an assignment of the mortgage, and these were forwarded to Johnson by P. M. Haas, accompanied by an abstract of title to the mortgaged land. The abstract made and certified by P. M. Haas showed the unreleased Rafter mortgage of $2,000, and it was represented to Johnson that the $4,000 was being negotiated for the purpose of paying off that mortgage. The abstract did not show the other Rafter mortgages, one for $1,050, and the other for $305, nor did it set out the $2,000 mortgage given to the State Bank of Holton. The $4,000 note and mortgage was purchased by Johnson in good faith, believing that when the $2,000 Rafter mortgage was paid he would have a first lien upon the land. He made no examination of the records, but relied on the abstracts sent with the mortgage. He turned over his checks to Haas for $6,076 in payment of the $4,000 mortgage, and the balance of it in payment of the $2,000 Rafter mortgage, and directed P. M. Haas to pay the $2,000 mortgage and have it released, and also to place the assignment of the $4,000 mortgage to him on the records, and to repost the abstract and bring it up to.date. Haas kept the mortgage and abstract in his possession until in November, 1925. When he returned the same to Johnson it showed a record of the assignment of the.Johnson mortgage as of September 9, 1925, and a reposting of the abstract up to September 15, 1925. On the abstract was a note in these words: “On margin of page 7 of book 86 is the following release. ‘Received of Clarence Marshall, the within-named mortgagor, the sum of $4,000 in full satisfaction of the within mortgage. September 10, 1925. Kate Hoover, John Hoover. Written on the original and recorded on margin of record by register of deeds, September 15, 1925.’ ” This entry was false and P. M. Haas paid no part of the money received from Johnson to the Marshalls, nor did they receive any consideration for the note and mortgage, nor did they know of the assignment of the same. On December 29 the Marshalls executed a deed conveying the land to the State Bank of Holton, which recited that it was subject to two mortgages for $3,050, and one for $2,000. The deed was executed by the Marshalls because of their inability to realize any money on the Minnie B. Haas mortgage which they had executed and which had been recorded on May 19, 1925. The deed was accepted by the State Bank of Holton in payment of the $2,000 note and mortgage which it held. At the time of this transfer the bank was informed by Marshall that he had received no money on the $4,000 mortgage, and was informed, too, that the release of the mortgage would be procured from Johnson so that it would not constitute a lien on the land, and it bought the land in the belief that this release would be obtained. The deed was filed for record on January 12, 1926. A purported release by Johnson of the $4,000 mortgage was obtained from P. M. Haas and was filed by the bank for record on January 21, 1926. It purported to have been signed by Johnson and acknowledged before P. M. Haas as notary public on January 12,1926. Johnson, however, did not sign or acknowledge a release, did not authorize its execution and had no knowledge of the false release. It was delivered by P. M. Haas to the bank prior to January 21, 1926, which delivered it to the register of deeds on that day, and did so in the belief that it was genuine. From and after the execution of the deed the officers of the bank had no intention to hold the $2,000 mortgage formerly held by the bank as a lien on the land. On the other hand, the bank on March 17,1926, contracted to sell the land to the defendants, Warner Coffin and his wife, for $7,800. One thousand dollars of the amount was paid in cash. The Coffins assumed and agreed to pay the mortgages for $3,050, including the commission mortgage and the interest on these from March 1, 1926, and also to make payments thereon of $1,000 on March 1, 1927, $1,000 on March 1, 1928, and $1,750 on March 1, 1929, these deferred payments to be evidenced by promissory notes bearing interest at eight per cent from March 17, 1926. Possession was to be given to the Coffins immediately upon the making of the contract. It was. agreed that upon compliance with the terms of the contract the bank would execute a warranty deed, and it was stipulated that if the Coffins failed in making payments when due they would forfeit all rights in the land. About April 14,1926, the Coffins made full payment for the land and in doing so relied on the records in the office of the register of deeds, and the bank on the same day executed and delivered a warranty deed to them for the land. On April 14, 1926, the Marshall mortgage to the bank was released of record. On April 14, 1926, the Coffins applied for a loan of $3,500 on the land to the Trevett, Mattis & Baker Company, to raise money to pay the Rafter mortgages of $2,000, $1,050 and $305. That company examined the records to ascertain the condition of the title and found that the State Bank of Holton was the owner of the land subject to the Rafter mortgages mentioned, and the Coffins agreed to give the Trevett, Mattis & Baker Company a first lien on the premises in the sum of $3,500, and concurrently with the recording of the deed from the State Bank their mortgage was recorded and the proceeds of the loan were paid to the Rafter mortgage company for $2,000 and the one for $1,050 with the accrued interest of $78 thereon. Also, a balance due on the commission mortgage, to wit $198.50, and the balance of $158.75 was paid to Coffin, who turned it over to the State Bank in payment of an indebtedness. The State Bank of Holton became and was found to have been insolvent on March 10, 1927. As conclusions of law the court ruled that the defendant, Coffin, is the owner of the land, that the Trevett, Mattis & Baker Company is subrogated to the rights of the Rafter Farm Mortgage Company and the assignees of its mortgages in the amount paid, to procure the release of their mortgages and that they have a valid first lien on the land for $3,326.50; further that Johnson, the plaintiff, has a second lien on the land for $4,487.31, with the interest thereon, and that they are entitled to a foreclosure of their lien subject to the first lien of the Trevett, Mattis & Baker Company for $3,326.50, which company also has a valid third lien on the land for $173.50, and the interest thereon. Judgment was accordingly entered. On the facts found the Coffins moved the court to adjudge that they be subrogated to the rights of the State Bank of Holton, and they asked that the release of the $2,000 mortgage formerly owned by it be set aside and that they be given a second lien for $2,000 and interest less the sum of $173.50, and that their lien be foreclosed subject to the lien of the Trevett, Mattis & Baker Company, but their motion was denied by the court. It is contended that the bank which purchased the land to settle indebtedness of Marshall to the bank, and which released its mortgage of record, acted in good faith in releasing it, believing that the release of the Johnson mortgage would be procured by Haas, and not knowing of the fraud of Haas, has a better claim than Johnson, and that its grantee is entitled to subrogation to the extent of the released mortgage of the bank for $2,000. That mortgage, as we have seen, was actually paid by the mortgage debtor. The debt represented by a note was paid and canceled on December 29, 1925, and a release of the mortgage was placed on record. The Marshalls from whom the land was purchased by the bank owed the mortgage debt, and how can there be subrogation where the party owing the debt pays the same? When the Marshalls paid the notej the debt and lien were discharged, and it appears that the entries made in the books of the bank showed that the note and mortgage were in fact canceled. More than that the court found that the bank had no intention to hold the mortgage as a lien on the land. It is true that prior to the payment of the debt in the purchase of the land the bank’s mortgage was prior and superior to the one held by Johnson, but the bank, instead of providing for the continuance of the mortgage lien to meet contingencies that might arise, chose to obtain and accept payment of the debt and mortgage, and when these were paid by the debtor and payment accepted the land was freed of that lien. In Spire v. Spire, 104 Kan. 501, 180 Pac. 209, it was held that the maker of a note who was surety for his comaker and who after payment of the note asked to be subrogated to chattel security held by the payee, was not entitled to subrogation. In the opinion it was said: “Being a maker, who was primarily and absolutely bound to pay the notes according to their tenor, Ambrose Spire was, as between himself and the payee, a principal debtor, and payment by his administrator discharged the notes. (Negotiable-instruments Law, § 126, Gen. Stat. 1915, § 6647.) Discharge of the notes discharged the lien of the mortgage. It was then the duty of the mortgagee to enter a release of the mortgage on the record. The administrator could do nothing to keep the mortgage alive, and nothing remained on which equitable assignment or equitable subrogation could operate.” (p. 502.) The bank was not in a position to claim subrogation and neither were the Coffins to whom the land was sold. In Kuhn v. Bank, 74 Kan. 456, 87 Pac. 551, it was said: “We have not been cited to any authority, nor have we found any, supporting the proposition that an independent purchaser of real property encumbered with liens who has no interest to protect therein, and no other equitable claim, can assume the payment and pay such lien or liens as he may choose and claim subrogation as against all inferior liens,” except certain cases which it is said are not in accord with the weight of authority. The Coffins were independent purchasers and at the time of the purchase had no right to be protected upon learning of the fraud of Haas, who, it appears, committed suicide, and further that the release of the Johnson mortgage was forged, they had the option to repudiate the contract of sale made with the bank and institute an action to rescind it, or to join with the bank in seeking relief on the ground of the fraud of Haas and attempt to obtain a revival of the mortgage lien which the bank had canceled and released." In following the latter course they in effect ratified the course taken by the bank and stand in its shoes so far as a right to subrogation is concerned. They did not pay or assume the payment of the bank mortgage that was paid by the Marshalls when the land was sold to the bank, payment being accepted from them as part of the purchase price. There was no bank mortgage nor lien under it when the Coffins purchased and came into the ownership of the land. The Marshalls had satisfied that debt and lien. The appellants say that plaintiff should not be allowed to profit by fraud. No fraud was committed by plaintiff. The Minnie B. Haas note and mortgage purchased by plaintiff was duly executed by the owners of the land and placed in the hands of P. M. Haas, their agent, for negotiation and sale. These were transferred to plaintiff, who paid full consideration for them to the agent of the mortgagors, and the mortgage was duly recorded. The fact that Johnson believed he was obtaining a first lien and that misrepresentations had been' made to him, and that there were other liens superior to his own, was in no sense fraudulent on his part. The fraud was committed by Haas in not accounting for the proceeds of the mortgage sold to *the plaintiff and in delivering a fraudulent release to the bank, and the bank and the Coffins are seeking to avail themselves of the fraud of Haas by the attempt to revive a lien which had been paid and discharged. We conclude that under the facts neither the bank nor the Coffins were entitled to the subrogation claimed. We cite the following additional cases which bear more or less on the question involved: Hubbard v. LeBarron, 110 Ia. 443; Stastny v. Pease, 124 Ia. 587; Avon-by-the-Sea, &c., Co. v. McDowell, 71 N. J. Eq. 116; Kahn v. McConnell et al., 37 Okla. 219; Shirk, Executor, v. Whitten et al., 131 Ind. 455; McDowell v. Jones Lumber Company, 42 Tex. Civ. App. 260; Witt v. Rice, 90 Ia. 451; Campbell v. Hamilton, (Tenn. Ch.) 39 S. W. 895. It results that the judgment must be and is affirmed.	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The opinion of the court was delivered by Hutchison, J: This is what is usually denominated as a fact case, and such, if there is any evidence to support the general finding of the trial court, will have to be affirmed, unless the law on some undisputed fact should require a different holding. There is also involved in connection with the facts the law questions of agency, limitation of authority and ratification. This action was originally brought before a justice of the peace by • the plaintiff, an auto supply company, against the Sharpe Brothers Contracting Company, a corporation, to recover $145.75 for four tires and an inner tube which the pláintiff had sold and delivered to an employee of the defendant under authority from and for the benefit of the defendant, as the plaintiff claims. The case was taken from the justice court to the district 'court upon appeal, where trial was had before the court without a jury and judgment was rendered in favor of plaintiff, from which the defendant company appeals. The defendant corporation was composed of four Sharpe brothers and the wife of one of them as stockholders and directors. It had a contract to construct a brick building in Fort Scott, about fifty feet distant from the place of business of the plaintiff auto supply company. One of these brothers was head man on the job and in charge there most of the time during the construction. He was referred to as the stout or big man, and his name was Ray W. Sharpe. Another brother and member of the company was there occasionally. At the very beginning of the construction work the evidence shows this stout man called on the plaintiff company and told one of the men in charge “that any time the boys came in there, to let them have anything they needed and charge it to Sharpe Brothers Contracting Company.” The evidence further shows that more than thirty small purchases were made and charged to the defendant company during the period of a little more than sixty days. The names of nine different workmen are shown on the original sale card as making orders and receiving goods charged to the defendant company. No name appears on the card for these tires, and the same condition exists as to two other cards. Payment has been made by the defendant for all the other items on the list except this one. The purchase of these tires was made by Russell Sharpe, a brick layer and workman on the building. He was a brother of the men composing the defendant corporation, but was not one of the company and had no interest in it. He was simply employed by the company to work on the building and received wages as other employees'and laborers. He owned a Nash automobile and used it coming to and going from the building. The testimony shows the brothers of the company, and particularly Ray, were often seen riding with Russell in this car and using it in connection with their business at and near the building. When Russell ordered these tires he told the salesman of the plaintiff to charge them to the defendant company; that “they was using his car going back and forth from one place to the other, and they had worn out his tires and was going to pay for the set of tires.” The testimony further shows that when this sale was made the plaintiff’s managers thought Russell was one of the members of the contracting company, and that was the reason he sold the tires to the company and did not require him to sign the sale card as usual. Later, the manager said that was one of the reasons he sold the tires to the company at the request of Russell Sharpe, the other reason being he knew he was one of the workmen on the building, and he saw the Sharpe brothers using the car going back and forth. The evidence shows that at least one other of the purchases was' made by Russell for which payment was made by the company. The constable testified to a conversation with one of the Sharpe brothers — the big man — when he served the papers and was trying to take the car, in which the big man said: “You can’t take this car. -It will cost somebody if you delay us with this car, because we are going to Independence.” There is a conflict of evidence on most of the matters above enumerated, particularly with reference to authorizing Russell to purchase tires or anything else for the defendant or on its account, the defendant’s testimony being to the effect that no general order or instruction was ever given the plaintiff auto supply company to sell the workmen of the defendant anything; that their men were sent there to get gasoline and oil, and the men whose names are signed to the slips were workmen of the defendant; and that the company never had anything to do with the Nash car belonging to Russell. Ray Sharpe said he never used the car for anything in connection with the business and never agreed to pay any debts of Russell; made no statement to the constable when he attached the car, but talked to Russell when he called him out; he may have ridden in Russell’s car to and from the work just like he rode in Mulkey’s car and various cars. Appellant' cites good law and numerous cases to the effect that no company is liable for the acts of any one who assumes to represent it, unless the company has expressly or impliedly made such person its representative, and that such liability is limited to the scope of authority to which such person is held out by the company to the world to possess, and if the facts are sufficient to excite one’s suspicion as to the extent or limitation of such authority, such third person is chargeable with notice of limitations or restrictions in such authority. These well recognized principles of law would fit the testimony of the defendant to a nicety, but where there is a conflict the general finding of the trial court must control on appeal, and there is a direct and positive conflict here on the questions of agency and express authority. We have no difficulty in finding there was substantial evidence and sufficient evidence to support and sustain such finding. “The determination of issuable facts is the province of the trial court, and its determination thereon will not be disturbed on appeal where there is substantial evidence to support the trial court’s findings and judgment.” (Bateman v. Preisser, 123 Kan. 217, syl. ¶ 2, 254 Pac. 1028.) “A general finding of fact made by the trial court on conflicting evidence will not be disturbed on appeal where there was evidence to support the finding made by the court.” (Keister v. First Nat’l Bank, 126 Kan. 495, syl., 268 Pac. 820.) The same can be said as to ratification of such authorization by the paying for all the other purchases and claiming an interest in the car when being taken under attachment. It is not for this court to say that the court erred in apparently accepting the statement of the constable as to the substance of that conversation. Appellant very forcibly argues that appellee should have sus- • pected something was wrong or irregular from the size of this purchase as compared with all the other purchases, being mostly less than $3 each, and also from the statement made by Russell about the car being his but the company was paying for new.tires because its officers had worn out the others in the business of the company. The first reason given by the manager of the plaintiff company is not good, wherein he said he believed it was all right because he thought Russell was one of the company. His thinking he was a member of the company would not justify the plaintiff in'’ making a charge against the defendant for purchases made by him if he in fact was not a member thereof. There are other reasons given which have more merit. He was an employee of the company. Defendant had authorized purchases to be made by the boys or workmen and .to be charged to the company. He had made at least one earlier purchase, which was included in the settlement. He told the manager the company had worn out the tires in its business; and the manager had seen the officers of the company using the car frequently in connection with the building they were constructing. The company was apparently receiving a benefit directly from the use of this car. In one of the cases cited by the appellant, decided against the party selling the goods, the court concludes the opinion with the following sentence: “If the contract had been for the benefit of the corporation, a contrary presumption could be indulged in; and in such a case, very slight evidence of acquiescence would have been sufficient to give validity to the purchase.” (Getty v. Milling Co., 40 Kan. 281, 287, 19 Pac. 617.) We think under all the evidence in the case there was sufficient to show a benefit to the defendant company and to allay any suspicion that might properly have arisen from the size and unusual character of the purchase, and sufficient to sustain the court in its general finding as to the purchase being within reasonable limitations and the general scope of the agent’s authority. The judgment is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: The city of Topeka brought this mandamus proceeding against T. B. Boyd, treasurer of Shawnee county, to compel the transfer by the county treasurer of certain moneys collected by him for the city as taxes from certain banks which made payments under protest. The writ was denied and the city appeals. In its petition the city alleged that the defendant, acting as treasurer, is required to collect taxes in behalf of the city, and to pay over the same on the 15th day of January, 15th day of April, 15th day of July and the 15th day of October each year to the city treasurer all moneys collected for and payable to the city, and to make an itemized statement of the moneys collected. It is further alleged that Boyd, as treasurer, had collected during the current tax year the sum of $32,235.65, and that he had failed and refused to pay it over to the city treasurer as provided by law. The moneys above mentioned, it was alleged, were provided in the levy of the city commissioners for current expenses, and the failure to pay it over affects the city materially. They therefore prayed the allowance of a writ of mandamus compelling the county treasurer to pay over to the city treasurer the sum of $32,235.65 now held by him. Defendant answering says that the entire sum asked for represents money collected by the plaintiff as the official tax collector for the county and the city and for money collected under the tax laws from the national banks of Shawnee county; that the law under which the tax was imposed and collected is invalid as to them and that they are entitled to a refund of the difference between 25 cents per hundred dollars and $3.23 per hundred dollars, which was the rate under which the money was raised for the tax year. There was a further allegation that for the purpose of testing the validity of the law the Central National Bank of Topeka filed an action for itself in the district court of the United States for the district of Kansas against the county treasurer to recover the excess taxes illegally collected and that that cause had proceeded to judgment and had been appealed to the circuit court of appeals. There was a further statement that the Merchants National Bank had likewise brought suit against the county and the county treasurer to recover a portion of the fund, asserting the same claims made by the Central National Bank. It is further alleged that it would be a great abuse of the extraordinary remedy of mandamus to require him to pay this money over to the city of Topeka under the circumstances, and particularly so when a judgment has been had holding the tax to be invalid and for a-recovery of the money in controversy, thus making him liable on his official bond. When this appeal was submitted it was conceded that the judgment mentioned had been affirmed by the circuit court of appeals (McFarland v. Central Nat. Bank, 26 Fed. [2d] 890) and that the writ of certiorari applied for had been denied by the supreme court of the United States, so that the invalidity of the tax has been finally determined. It appears that some payments of the protested taxes collected by the county treasurer had been turned over to the city treasurer, erroneously as he says, and that he has retained out of subsequent payments enough to reimburse him for that so erroneously disbursed. When the litigation was commenced the treasurer declined to pay over the questioned tax money and set it apart in a separate fund designated by him as “litigated and protested” tax. The result of that litigation was that the assets of the bank were taxable under the intangible tax law at the rate of 25 cents per $100, the same as moneyed capital owned by individual taxpayers, and that the property tax rate imposed and collected, of $3.23 per $100 of valuation, was invalid and that the bank was entitled to recover the illegal excess. As shown that judgment has become final and it is now finally determined that the city is not entitled to the protested tax or any more than the amount derivable under the intangible tax rate. This being a mandamus proceeding, the question presented is whether a writ should go at the suit of the city to compel the county treasurer to pay to the city the protested invalid taxes which he col-, lected and holds and to which the city has no legal right. The plaintiff calls attention to the statutes governing the making up of a yearly budget by the city commission to provide for the expenses and liabilities of the city for the ensuing year. (R. S. 13-2601.) Upon this budget levies are made and certified to the county clerk to provide the revenues for the next year (R. S. 13-907), and when this is done the city commissioners have no power to increase the amounts so fixed unless the actual revenues shall have exceeded such estimate, in which event the amounts cannot be increased beyond actual revenues. The taxes arising from the levy are to be collected by the county treasurer and paid to the city treasurer in quarterly periods during the year commencing on January 15 (R. S. 13-912), and the law makes the county treasurer the collector of taxes for the county and its municipalities. It is stated that when any considerable amount of the revenue so estimated and provided for is not collected and paid to the city its fiscal affairs are thrown out of balance and it is rendered unable to meet current expenses and liabilities on bonds that have been issued. No doubt such a circumstance causes inconvenience and embarrassment to the city in conducting the municipal business, but that necessarily occurs in any case where the estimated revenues are based on unauthorized levies and which requires the authorities to provide for the deficit in later levies. A taxpayer has a right to contest an illegal tax, and no officer, county or city, has a right to impose or collect one that is illegal. The validity of the tax in question was promptly challenged by the taxpayer when payment was made under protest. The payment was coercive and made to prevent the seizure and sale of property while the validity of the tax was being judicially tested. The treasurer was duly notified by the protest of the illegality of the tax and later by a decision of a court of competent jurisdiction adjudging it to be illegal. He exercised his judgment in respect to the validity and withheld payment, placing the invalid tax in a special fund to await the result of an appeal or review of the judgment in the appellate courts. It is argued that the county treasurer was only a collecting agent for the city and it was not his function to sit in judgment as to the validity of the tax paid under protest. Of course, the treasurer would not be required to withhold every tax paid under protest, as groundless protests might be made. The city cites cases to the effect that payment should be turned over by the collector to the municipalities for whose benefit it was levied; leaving the validity of the challenged tax to the courts and the right to its recovery in some subsequent judicial proceeding. (Ratterman v. The State, 44 Ohio St. 641; Craig v. Boone, 146 Cal. 718.) In these cases it appears that the remedy was sought before the validity of the tax had been adjudged. Here the remedy was sought after it was judicially determined that the tax was illegal and that the city had no right to the money which was still in the hands of the collector. Should a writ of mandamus be issued to compel the payment of money illegally exacted because it was derived from a levy formally but unlawfully made, and is needed by the city to meet municipal expenses and liabilities, the withholding of which will interfere with the estimates of the city for raising revenue and embarrass it in meeting its fiscal obligations? Can the city use this proceeding to enforce the payment of money where it concedes that the money was wrongfully collected? The payment and distribution of the money would mean that the taxpayers must bring a large number of actions against each of the subordinate municipalities receiving part of this illegal tax to recover it back. Why should the trouble and expense of so much litigation be taken and incurred when the money wrongfully taken may be turned back to the taxpayers by the officer who collected it. In Hodgins v. Shawnee County Comm’rs, 123 Kan. 246, 255 Pac. 46, an illegal tax had been collected and in an action for its recovery from the county commissioners they set up that the money illegally obtained had been distributed among the different municipalities and districts, but it was held that this did .not constitute a defense and the taxpayer had a right to recover it from the one who illegally collected it. It was said: “The illegality was brought to the attention of the county by the protest of the plaintiffs before any distribution was made and the tax collected was then in the possession of the county. The county was in the attitude of a person who without authority of law had wrongfully obtained the money of a taxpayer, and it is no defense to it to say that the money had been turned over to another than the one to whom it belonged. The owner of the fund is entitled to recover all of it from the party that extorted it.” (p. 250.) In the present case the officer who collected the unlawful tax still has it in his possession and is in a position to restore it to the parties to whom it belongs and we think should not be directed by mandamus to pay it to another to whom it does not belong. Whatever the rule might have been if the transaction had proceeded no further than the protest of the taxpayer when the relief was asked, we are of the opinion that the officer should not be compelled by mandamus to pay over illegally collected taxes to a party not entitled to it, and especially where the illegality of the taxes is conceded. The writ of mandamus lies to a great extent in the discretion of the court and in such a case the court is warranted in taking a broad view of the rights of the parties and the public before the writ is granted. (Kolster v. Gas Co., 106 Kan. 84, 186 Pac. 738.) The writ has been refused in an action brought to compel the performance of an act technically legal but which would operate unjustly. (Railway Co. v. City of Liberal, 108 Kan. 836, 196 Pac. 1067.) We decide no more in this case than that under the circumstances herein stated, and in view of the discretion vested in the court, there was no error in denying the writ of mandamus to compel the payment of money to a party not legally entitled to it. The judgment is affirmed.	[ -16, -32, -16, -36, 26, -64, 10, -118, 9, -79, -74, 115, -23, -117, 0, 121, -78, 29, -44, 97, -58, -73, 79, -23, -110, -14, -3, -43, -75, 124, -12, -58, 72, 48, 10, -99, 6, -62, 71, -36, -114, 4, 41, -60, -39, 65, 52, -7, 35, 75, -79, -116, -13, 40, 24, -62, 72, 44, 89, -85, 81, -15, -113, -107, 125, 23, 17, 4, -100, 7, -56, 46, -104, 57, 64, -20, 123, -90, -122, 116, 109, -119, 9, 126, 98, 65, 37, -17, -68, -120, 14, -37, -99, -25, -110, 25, 34, -119, -74, -99, 124, 84, 7, -2, -14, 21, -99, 108, 15, -98, -108, 51, -113, 53, -118, 83, -17, -94, 48, 97, -49, -30, 92, -57, 58, 27, -97, -8 ]
The opinion of the court was delivered by Johnston, C. J.: This is an action of injunction brought by Roy Breedlove and his wife to enjoin the county commissioners of Wyandotte county and a construction company from proceeding with the improvement of a highway which it was alleged was being done without authority and which if completed would do irreparable damage to his farm, and for which he had no other adequate remedy. An injunction was granted, and from the judgment defendants appeal. It appears that in December, 1925, a petition, was presented to the board of commissioners asking for the improvement of the road by grading, draining and surfacing it, according to plans, specifications and estimates approved by the state highway commission and by the United States officer if federal aid should be granted. The petition was signed by more than fifty-one per cent of the resident landowners within the benefit district, and the plaintiff was one of the signers. The petition and the subsequent steps in the project were taken under R. S. 68-701 and subsequent sections. On December 21,1925, the petition was considered by the board and an order made declaring the improvement a public utility and directing the engineer to prepare plans. Due notice was given to persons interested in the proposed improvement that at a time fixed the board would hear any objections or complaints presented as to the improvement. At that time no complaints were presented, whereupon the board resolved that the type of road to be built would be bituminous macadam laid to the width of eighteen feet, and that fifteen annual assessments should be levied in payment of the improvement, and directed the submission of the action taken to the state highway commission. This was done, and on March 2, 1927, the approval of that commission was given. To carry out the plans and specifications of the county engineer which had been approved by the state highway commission, it was deemed necessary to acquire additional land for right of way and to secure adequate drainage for the road, as it was to be widened, altered, and relocated, and as the board was not able to obtain the necessary land from plaintiff by donation or purchase, at a reasonable price, proceedings in condemnation were instituted by the board. When the hearing was had the plaintiff appeared in person before the board. It was deemed necessary to take two and five-tenths (2.5) acres of plaintiffs’ land, and this quantity was appraised at $500. A formal order reciting the various steps taken was entered. No appeal was taken from the order. The county engineer certifies that the plaintiff applied to him to have the plan of the road changed as to location, and his request was referred to the state highway commission, but the engineer of that commission after a personal inspection refused to change the plans. On the trial plaintiff testified that he was not present when the allowance of damages was made, but he did not testify that he was not notified of the meeting nor that he did not appear at the hearing. He further stated, that he did not know what land was going to be taken, but that the land condemned was bottom land, the best part of his tract. The court found that in the prosecution of the improvement the defendants entered upon plaintiffs’ land for the purpose of cutting a new channel for a creek through, it, and to change the channel of what was a natural watercourse to a new channel for drainage purposes in connection with the improvement, and the court further found that it would greatly damage the plaintiffs. The specific ground for which injunction was granted was that the defendants had exceeded their authority in 'undertaking to change the channel of a creek and should be enjoined from so doing. No appeal was taken from the award of damages, but the plaintiffs, five months after the contract for the improvement was let, sought to enjoin the board of county .commissioners and the contractor from proceeding with the .improvement. Plaintiffs argue that there were irregularities in the preliminary proceedings, but the trial court has found upon sufficient evidence “that- all of the proceedings required by law to be had and done as preliminary to the making of said improvement, except the attempt to change or divert the channel of said creek, were valid although somewhat irregular.” This finding eliminates all of plaintiffs’ contentions as to the invalidity of the preliminary proceedings and leaves nothing of plaintiffs’ objections for consideration except the authority of the board of county commissioners to divert the channel of the creek and the right to maintain injunction. The defendant contends with good reason that the board, an administrative and nonjudicial body, is vested with discretion in determining what is necessary for the improvement of the road, including changes to be made in it, and the necessity for the appropriation of additional land. It was competent for the board to secure proper drainage so that the road when complete would not be subject to overflow from the watershed in the vicinity, and which would protect the road when completed from injury or destruction, and that when the board exercises its discretion in this respect, there can be no judicial interference with that discretion in the absence of fraud or other gross impropriety. There was no finding or evidence of fraud nor of abuse of discretion on the part of the board. In a case where commissioners acquired land by condemnation for the purpose of widening and altering a road so as to care for a deep ditch or waterway in order to eliminate dangerous places in the road, the plaintiffs insisted that the proposed improvement was unnecessary and illegal, that the purpose could be accomplished without appropriating any of plaintiffs’ land, and he sought to stop the improvement by injunction. The court held that the law gave the board authority to make the alteration and improvement, that it was vested with discretion in the matter, and where they acted after consulting such expert advice as was available and exercised their best judgment and discretion, there could be no interference with their action where it was free from fraud, abuse of discretion or other gross impropriety. The conclusion was that the plaintiffs were not entitled to maintain injunction. (Balliet v. Clay County, 115 Kan. 99, 222 Pac. 132.) Here there being no proof of fraud or gross impropriety on the part of the commissioners, it must be assumed they acted in good faith, and their action if within legislative authority cannot be stayed or prevented by injunction. See, also, Shanks v. Pearson, 66 Kan. 168, 71 Pac. 252; Photo Play Corporation v. Board of Review, 102 Kan. 356, 169 Pac. 1154; Evans v. Edelbrock, 106 Kan. 233, 187 Pac. 664; Smith v. Reno County Comm’rs, 121 Kan. 444, 247 Pac. 1046. It is contended and the trial court has found that there was a lack of legislative authority in the board to change a natural watercourse in the making of the improvement. Plaintiffs argue that the board has only such powers in this respect as are expressly conferred by the legislature, and that no such authority has been given. The board is granted full power to lay out and establish roads, to relor cate, alter, widen or vacate an existing road, and to do what is necessary to eliminate dangerous places in the road, and if more land is necessary they are empowered to acquire it either by purchase, donation or condemnation, and to do what is essential to the proper construction of the road. (R. S. 68-114, 68-115.) No limitation is placed on the powers of the board in respect to land over which a waterway or creek may flow. If the location is such that the waterway would cross the road at a number of places and make necessary the building of several bridges or culverts, it would be economy and good public policy to procure additional land and divert the waterway over it, paying to landowners such damages as they may sustain. No reason is seen why the board under the general grant of powers may not do so. Another provision of the statute recognizes that such power exists wherein it is provided that the county engineer who is appointed by the board and acts as an arm or agent of it, “to act for the county in all matters relating to the supervision of the construction, repairing, surfacing, resurfacing and maintenance of any roads, bridges or culverts or anything pertaining to rivers, streams or watercourses, for which the county pays any part of the cost thereof.” (R. S. 68-502.) This provision contemplates that in the establishing, altering, straightening, relocating or improving roads, the board may exercise authority over creeks or watercourses and do what is necessary to the proper construction of the road where watercourses are involved. They may do anything necessary pertaining to such as building bridges, culverts or a new channel through which the water may be carried. There was ample authority for the board to condemn the land for the purpose mentioned, and the fact that a change of a watercourse was deemed necessary and that land was condemned in order to provide a new channel for it, and thus effect a proper construction of the road and also proper protection for it when improved and paved, cannot be regarded as an abuse of discretion, and having been done in the , exercise of that discretion in good faith there was no warrant for interference by an injunction. A small parcel of land deemed necessary for the making of the road and its proper maintenance was condemned and an award of damages was made to plaintiffs. If they were dissatisfied with the amount awarded they could and should have appealed. (Meehan v. Barber County, 108 Kan. 251, 194 Pac. 916.) Instead of availing themselves of this adequate remedy they brought this injunction proceeding, which under the law was not appropriate or permissible. We conclude that the judgment awarding an injunction was erroneous, and therefore the judgment is reversed and the cause remanded with directions to enter judgment for defendants.	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The opinion of the court was delivered by Johnston, C. J.: This is an appeal from a judgment of foreclosure in which a judgment in rem was entered against A. R. Lamb for $6,300. The matters in controversy in the appeal are, first, a ruling made upon the motion of defendant Lamb to make the petition of plaintiff more definite and certain; second, a ruling decreeing the period of redemption to be six months instead of eighteen; the overruling of a motion to set aside the sale of property, and the order confirming the sale. These rulings are assigned as error. From the pleadings, evidence and special findings, the controlling facts appear to be that S. A. Brown owned a tract of ground upon which a hotel had been erected, and that on February 9,1927, Brown agreed to sell the property to W. C. Goodell for $6,000 and to accept in payment a note for that sum secured by a mortgage on the premises. About that time, and before the transfer was completed, Goodell sold it to George W. Williams for the same amount and on the terms agreed upon between Goodell and the plaintiff. At Good-ell’s request and within a few days a deed was executed by plaintiff conveying the property directly to Williams for $6,000, the latter giving his note for $6,000 to plaintiff and a mortgage to secure payment of the note. Shortly afterwards Williams conveyed the property to Goodell subject to the mortgage mentioned. Goodell in turn made a conveyance to another, and the legal title was transferred through several persons, and finally to the defendant Lamb, all the conveyances reciting that they were made subject to the Williams mortgage. The mortgage contained a stipulation that the buildings on the premises should be insured in a sum not less than $6,000, and that if the insurance was not kept up on the buildings or if default should be made in the semiannual payments of interest on the note, the mortgage should become absolute, and the whole amount of the note and interest should become due at the option of the plaintiff. Defaults were made in the conditions of the mortgage, no interest having been paid, except $80 paid on March 1, 1927. There was a finding by the court that the mortgage and interest of $6,300 was due thereon, and that one-third of the purchase price of the property had not been paid, and therefore fixed the period of redemption at six months. Judgment was accordingly entered. The attack on the petition was that it did not definitely disclose the actual consideration paid in the transfers between Goodell and Williams, in that it did not disclose the amount actually paid by the purchaser, and that the payment actually made had a material bearing on the period of redemption, that is, whether one-third of the purchase price had been paid. It was alleged that the note and mortgage for $6,000 was the amount of the consideration, and the evidence tended to show that to have been the actual consideration. More than that, the conveyance was made by Brown to Williams, and the former testified that the note for $6,000 was given as the full consideration of the purchase price. The court was warranted in finding that one-third of the purchase price had not been paid. It appears that no more than $80 was paid, and hence the redemption was properly limited to the six-months period. (R. S. 60-3466.) We find nothing substantial in this objection. As to the motion to set aside the sale of the property, a more serious question is presented. The’ notice of the sale was manifestly insufficient. The first notice was published in a weekly newspaper on November 17, that the sale would be made on December 24,1927. Publications were thereafter made on November 24, December 1, December 8, and December 15, but no publication was made on December 22, nor at any other time prior to the sale which was made on December 24. Such a notice must be published at least thirty days before the sale, and must be continued in each successive issue of the newspaper up to the day of sale. This was not done, and failing in that the notice is insufficient. (Whitaker v. Beach, 12 Kan. 492. See, also, Treptow v. Buse, 10 Kan. 170; McCurdy v. Baker, 11 Kan. 111; Watkins v. Williams, 33 Kan. 149, 5 Pac. 771.) The plaintiff has not pointed out any way of overcoming this defect, and indeed none is available to him. He does say that defendant first made a motion contesting the confirmation of sale upon another ground which was overruled, and did not move for setting aside the sale on the ground that the publication was insufficient until after the first motion had been determined. However, the second motion was made and was entertained by the court and subsequently overruled. The fact that the ground named in the second motion was not included in the first cannot be regarded as coming too late or as precluding the defendant from raising the question on this appeal. It follows that there was error in overruling the motion to set aside the sale and in confirming it. The judgment will therefore be reversed and the cause remanded for further proceedings. Hopkins, J., not sitting.	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The opinion of the court was delivered by Garver, J. : This case presents a complicated condition of the matters involved, though the facts are without substantial dispute in the evidence. The only difficulty is to determine the correct legal conclusions which should be drawn from the facts, which are in substance as follows : October 10, 1889. three separate actions., numbered respectively 6104, 6105, and 6106, were commenced in the district court of Wyandotte county by the Missouri Valley Lumber Company for the foreclosure of certain mechanics’ liens on 10 lots in West End addition to the city of Argentine, in said county. In No. 6104, J. H. Sldllman was the principal defendant and the alleged owner of eight of the said lots, J. R. Bowers, another mechanic’s-lien claimant, being joined as defendant. In No. 6105, the principal defendant was A. J. Heron, who was the owner of five of the lots at the time the contract for the materials was made, and when the right to the lien attached. In No. 6106, W. T. Brooks was the principal defendant, and the alleged owner of the other five lots at the time the contract for the materials was made and when the lien attached. Heron and Brooks, subsequently to the time when they contracted the liens foreclosed in Nos. 6105 and 6106, conveyed eight of these lots to Skillman, who made further and additional improvements thereon, on which liens were foreclosed in No. 6104. The three cases involved independent and separate contracts with the lumber company, and the foreclosure of separate liens. In each of these cases the plaintiffs in error were made defendants, and filed answers setting up certain mortgage liens claimed by them upon each of the 10 lots. Bowers was not a party to and made no. appearance in any case other than the Skillman case (No. 6104) ; and in that he set up a claim for a mechanic’s lien, under contract with Skillman, on the eight lots which had been conveyed to him by Heron and Brooks. January 16, 1890, judgments were rendered in all the three cases, determining that the lumber company was entitled to judgment against Heron for $596.20, against Brooks for $960.30; that such judgments were a first lien upon the 10 lots owned by Heron and Brooks respectively, and that the plaintiff in error had a second lien on each of said lots for $960, by virtue of certain mortgages executed by the respective owners of the lots. In the Skillman case, judgment was rendered in favor of the lumber company for $401.68, and in favor of Bowers for $373.20, against Skillman; the judgment of the lumber company was adjudged a first lien and that of Bowers a second lien on the eight lots owned by Skillman, but both liens were found to be subject and inferior to the mortgage liens. The court decreed, in each case, that in default of payment in 10 days, an order of sale might issue for the sale of the property. In the Heron and Brooks cases, it was ordered that the proceeds of the sales should be applied, first, to the payment of the costs ; second, to the payment of the judgments in favor of .the lumber company; and that the balance, if any, should be brought into court to be applied towards the payment and discharge of the mortgages. In the Sldllman case, the court directed that the lots should be sold subject to the mortgage liens thereon, and the proceeds applied to the payment, first, of the costs ; second., the judgment in favor of the lumber company; and third, the judgment in favor of Bowers. Pursuant to these several judgments, alias orders of sale were issued in each case June 18, 1890. In the Heron and Brooks cases sales were made on July 21 to one J. W. G. Glynn, for the sum of $2,005 in each case. Thereafter, on August 4, 1890, under the order of sale in the Skillman case, the sheriff again offered for sale and sold eight of the lots which he had previously sold on July 21 in the Heron and Brooks cases. The eight lots were appraised at $1,350, subject to the mortgage liens, and sold to J. W. C. Glynn on his bid of $1,000. The sheriff made a separate return to court in each case of having made sales as above stated. The three sales were confirmed October 13, 1890, and the sheriff’s deeds executed October 15, 1890, to Glynn. On the sale made in the Skillman case no part of the bid was paid except the costs, amounting to something over $100. Subsequently Bowers began an action in the court of common pleas of Wyandotte county against the sheriff to recover the amount of his judgment against Sldllman, alleging the failure of the sheriff to pay the same out of the proceeds which the return on the order of sale showed he had received from the sale in that case. Judg ment was rendered against the sheriff on the pleadings in that case, and the same was paid by him. In this action it was sought to recover from Glynn, and from the plaintiff's in error, for whom it was alleged Glynn was acting as agent in making his bid, the sum which the sheriff was required to pay Bowers. The court rendered a personal judgment as prayed for against all the defendants, and adjudged the same to be a first and prior lien on the lots sold under the order of sale issued in the Skillman case. I. Various matters were discussed in the brief of counsel for plaintiffs in error and numerous errors assigned ; but an examination of the record convinces us that the entire controversy can be disposed of by tíre consideration of two or three general propositions. It is objected at the outset that the plaintiff, Bowling, cannot maintain this action, for the reason that his term of office as sheriff expired before this action was commenced. We cannot agree with counsel on this proposition. So far as there is a right to sue to recover a bid made and accepted at a judicial sale, which the purchaser failed to pay, it is a right growing out of the contract relation existing between the officer and such bidder. By returning a sale as made without having demanded and received payment of the bid, and by permitting the sale to be confirmed on such return, the sheriff became liable to a judgment creditor interested in the proceeds of the sale, the same as if the bid had been paid. In such proceedings against the officer he may not, as a rule, contradict his return. (Ferguson v. Tutt, 8 Kan. 370; Studebaker v. Johnson, 41 id. 326.) This, however, does not affect the previous contract of sale as between the officer and the purchaser. The officer becomes liable to the judgment creditor' because it is his duty to demand and receive the purchase-money at the time of the sale, and the law does not permit him, when called to account for such official act, to contradict his solemn return showing the performance of duty, for the purpose of shielding himself behind a failure to perform such duty. In making a judicial sale, the officer, in a sense, stands between the several parties as a representative of all, and an accepted bid is regarded as so far a personal contract between the purchaser and the officer that the latter may enforce it in his own name. (Walker v. Braden, 34 Kan. 660; Armstrong v. Vroman, 11 Minn. 220; Gaskell v. Morris, 7 W. & S. 32, 39; Bell v. Owen, 8 Ala. 312; Nichol v. Ridley, 5 Yerg. 63; Jones v. Null, 9 Neb. 254.) The right to enforce such contract does not go to the successor in office of the sheriff. His successor could not in any way be held responsible for the non-payment of the bid, and has no-interest, officially or otherwise, in the indemity to his predecessor on account of the payment of the money to a judgment creditor. The sheriff’s official connection with the matter has terminated by payment. Any proceeding he may thereafter institute against the delinquent bidder is for the purpose of securing a personal indemnity to himself, and is not dependent upon the continuance of his official character. II. The petition in this case alleges that J. W. C. .Glynn acted, in making the purchase of the lots, as agent and trustee of the English and American Mortgage Company, and of the Trustees’, Executors’ and Securities’ Corporation, and that the purchase was made in reality for such companies. After a careful examination of the record, we are unable to find anything which tends to support this allegation with reference to the latter company. On the contrary, the evidence shows that the trustees’ company’s connection with these matters was only that of a trustee of an express trust; that it merely held such mortgaged securities as were deposited with it by the English and American Mortgage Company as security for debentures sold to other parties, or that it purchased from the mortgage company certain mortgages which the latter company had taken in its own name. The mortgages which were adjudged to be a lien upon these lots were held, either as owner or as trustee — the evidence does not show which — by the trustees’ company at the time of the several foreclosures of the mechanics’ liens. The English and American Mortgage Company — a separate corporation — generally looked after the foreclosure proceedings in which the trustees’ company was interested, and employed the attorneys who appeared therein. That was done in the cases referred to in this case, and the attorneys so employed filed answers setting up the mortgage liens. The extent of the authority of the mortgage company in such cases is not shown; neither does it appear that the trustee’s company had any knowledge, at any time, of the result of these particular foreclosures. At the time of the sale, Glynn, who purchased the lots, was in the employ of the English and American Mortgage Company, and subsequently, for a consideration of $150, conveyed six of the lots to Allison Z. Mason, trustee. The other two lots were conveyed by him to a Mrs. Hamilton, whose prior connection, if any, with these matters is not shown. The English and American Mortgage Company failed some time before this action was commenced, and Peter McMasters was appointed, December 21, 1892, as receiver of its assets and business. Allison Z. Mason was trustee for the mortgage company and for the receiver, but we are not informed of the particular nature and extent of his trust. It does not appear that either McMasters or Mason had at any time any connection with the trustees’ company. Under these circumstances, we fail to see how there could be any personal liability of either the trustees’ company, or Mason, or McMasters, for the bid made by Glynn. In our opinion, the plaintiff entirely failed to establish any cause of action against either of them. Even conceding. that Glynn was acting as agent for the trustees’ company in the purchase of the lots, we think the same legal conclusion must be made. The plaintiff had actual knowledge of the facts connected with the several sales, and was a party to everything that was don'e. in the matter of selling and conveying these lots. The confusion that has arisen was caused by the plaintiff’s advertising and selling property of which he had already made a legal sale. Under the ¡judgment and orders of sale in the Heron and Brooks cases, the sales made July 21, upon confirmation and deed, vested in the purchaser the full legal and equitable title to the property, subject only to the right of Bowers to. redeem, because he was not a party to those actions. Had the proceeds of those sales exceeded the amounts of the prior liens of the lumber company and of the mortgages, Bowers could have asked the court to apply such excess on his judgment and lien. In case there was no excess, he could have maintained an action to redeem by the payment of the amount of the prior liens. In any event, all interests and title of Skillman, Heron and Brooks in the lots were extinguished by the sale and confirmation; the only equity or right not foreclosed and barred being the right of Bowers to redeem. (Strang v. Allen, 44 Ill. 428; Hoppin v. Doty, 22 Wis. 621; An- son v. Anson, 20 Iowa, 55; 2 Jones, Mortg. § 1395; 20 Am. & Eng. Encyc. of Law, pp. 614, 622.) Having the three orders of sale in his hands at the same time — the one issued in the Skillman case directing the sale of only the equity of redemption of the owner, and the others directing the sale of the absolute title to the same property — the sheriff might have proceeded to a sale under either ; or, had he first sold the equity of redemption there would have been nothing inconsistent in his afteward selling the same premises for the satisfaction of the prior liens. A more regular proceeding would have been — the three orders of sale together directing the selling of all interests in and full title to the property — to make but one sale and to dispose of all interests at the same time. The proceeds of such sale could then have been applied on the several judgments according to the priority of their liens as had been determined by the court. The sheriff did not see fit to follow this course ; but he must be presumed to have known that the execution of the orders of sale in the Heron and Brooks cases made it impossible for him to execute the order issued in the Skillman case. After the sale of the premises, July 21, the Skillman order had lost its force. Nothing remained for the sheriff to do but to return it with a statement of the facts. This is very apparent when we consider that the latter order directed the sheriff to sell the premises subject to the mortgage liens, and that he had put it.beyond his power so to do by a sale of the same premises, under an order of the court, which extinguished those very liens. In lieu of such mortgage liens he had in his hands the proceeds of the July sale. These he was directed to return into court that they might be applied to the payment of the mortgages. No representations which Glynn, as agent, might make under such circumstances, at the timé of or subsequent to the August sale, could affect his principal; for, if he was agent to buy the property, his duty in that respect had been fully discharged and his authority exhausted by the July sale, and the subsequent confirmation and sheriff’s deed transferred the title, subject only, as before stated, to Bowers’s right to redeem. Thereafter the agent of such company — the officer having full knowledge of the facts — had no right or authority to enter into a contract with such officers to pay an additional sum of money for a title which was inferior to that' already possessed. III. It is contended that, even though the bid of Glynn created no personal liability as against the plaintiffs in error, Glynn was personally liable to make good his bid, and the law will raise out of the transaction a trust of such a nature as will permit the officer to follow the property and have a lien decreed against it for the purchase-money. It is also claimed that Mason received the conveyance of this property from Glynn during the pendency of this action, and, therefore, it is liable in his hands the same as if no transfer had been made. If the law gives any special lien in a case of this kind, we presume the position of counsel for defendant in error is well taken. We do not understand, however, that this is an equitable action. It is a simple action at law, on contract, to recover a sum of money which one of the parties to such contract agreed to pay. True, the petition states that, at the time of the sale, certain statements were made by Glynn which were untrue with reference to the ownership of the liens upon the premises, and that such statements induced the plaintiff not to require the payment of the money on the bid, except the amount necessary to pay the costs of the action. But there is neither allegation nor proof that such statements were not made in perfect good faith ; nor is there any pretense that they were not true except as to the Bowers claim. Such allegations may have been proper as showing a reason, though not a legal one, for a failure to demand and receive the amount of the bid at the time of the sale, but the}' did not change the nature of the action. In the absence of a special contract in writing, a vendor’s lien for unpaid purchase-money is not recognized in this state. (Simpson v. Mundee, 3 Kan. 172; Greeno v. Barnard, 18 id. 518.) We see no reason why an exception should be made in this case, which has all the characteristics of an ordinary action for the recovery of purchase-money. If we consider the equities of the case, we must concede that they are with the plaintiffs in error. The several parties having liens had to look to these premises for payment of their respective judgments. The only evidence given on the trial of this case as to the value of the lots was that coming from the plaintiff himself, who testified that, at the time of the sale, the lots were worth about $400 each. The liens of the lumber company upon the eight lots which were sold in the Skillman case, including the costs, amounted to about $2,000. The mortgage liens, as stated in the journal entry in the Skillman case, were $3,450, though it would seem from the findings of the court in the other cases that the mortgage liens were $690 on each lot. But taking it at the lower estimate, and there is over $5,000 as the amount of the liens which are prior to the Bowers lien, on property shown to be worth much less than that. For this property, including two other lots of apparently equal value, there was paid to the sheriff, on the July sales, $4,010. Out of this about $1,800 was paid in satisfaction of the prior liens of the lumber company, including costs, leaving a balance of about $2,200 to apply on the mortgages. Equitably, therefore, Bowers’s redemption interest in the property was conditioned upon his payment of about $5,400 on account of prior liens; so that, if the sale made by the sheriff in the Skillman case could be regarded as a proper legal proceeding, the equities of the prior mortgage lien-holders were superior to those of Bowers as to the money obtained upon such further sale of the premises. Viewing the case, therefore, from a merely equitable standpoint, we see no reason, even if this were an equitable action, why the court should reach out and appropriate for the payment of this claim property to which the plaintiffs in error are legally and equitably entitled until the full amount of their liens thereon had been paid. Upon the several returns which the sheriff made of these sales, the court should have protected the rights of the respective parties by a distribution of the purchase-money according to their priorities and equities. Nothing of that kind appears to have been done. The next proceeding is the action of Bowers against the sheriff to recover what he claimed as his portion of the proceeds of the Skillman sale. The court of common pleas of Wyandotte county, in which that case was brought, rendered judgment upon the petition of Bowers and the answer filed by Bowling thereto. To such decision and judgment the plaintiff herein submitted, without further contention, by payment. We are of the opinion that upon the facts as disclosed in this case the sheriff had a full and complete defense to that action. That he did not succeed is not the fault of the plaintiffs in error, and they are not bound thereby. As Glynn makes no complaint of the personal j udgment against him, it will not be disturbed. On the petition and the evidence offered under it'by the defendant in error, the demurrer to the evidence should have been sustained. Upon all the evidence in the case, the judgment should have been in favor of the plaintiffs in error. As the facts are without substantial dispute, this court may direct such judgment to be entered as should have been rendered by the district court. It is therefore ordered that the judgment against the Trustees’, Executors’ and Securities’ Insurance Corporation, Limited, Allison Z. Mason, trustee, and Peter McMasters, receiver, and against the property, be reversed, and judgment entered in their favor for costs. All the Judges concurring.	[ 112, 106, -16, 45, 10, 106, 40, 90, 16, -79, -91, 87, -51, -118, 21, 109, -26, 93, -15, 104, 102, -78, 7, -22, -46, -77, -15, -51, 56, 77, 36, -41, 76, 112, 10, -107, -58, -128, -59, 92, 14, -124, -119, -24, -39, 64, 58, -21, 48, 74, 49, 46, -5, 45, 28, -61, 45, 44, -19, 45, -16, -72, -70, 30, 95, 22, 51, 6, -104, 67, -56, 12, -112, 53, 4, -88, 83, 52, -58, -12, 41, -103, 13, 98, 102, 35, 61, -49, -24, -72, 14, -74, -119, -89, -112, 24, 3, 41, -74, -99, 120, 80, 6, -2, -25, 5, 29, 108, 3, -114, -10, -79, 15, 52, -104, 75, -49, -125, 52, 96, -113, 98, 93, 21, 48, -101, -114, -71 ]
The opinion of the court was delivered by Garver, J. : Park, Brother & Co., organized as a limited partnership under the laws of Pennsylvania, were engaged in the manufacture and sale of steel. On December 9, 1887, a selling agent of this company solicited orders from A. J. Harwi, who was engaged in the hardware business in the city of Atchison, and submitted to him a written proposition, the material parts of which, so far as concerns the questions in this case, are as follows : “December 9, 1887. “A. J. Harwi, Atchison, Han.: Dear Sir — We propose to supply you with five net tons of black di amond tool steel, of good and suitable quality, to be furnished prior to July 1, 1888, at 8-i-cent rates. Shipments from St. Louis store less 5 per cent, commission. Terms : Four months ; or 3 per cent, off for cash, 30 days. Pgh. shipments, deliveries to be made F. O. B. Pittsburg, with freight allowance to St. Louis, Mo. To be specified for as follows : Prior to July 1, 1888. Yours truly, [Signed] Park, Brother & Co., Limited. R. B. Lyle. Accepted: [Signed] “A. J. Harwi.” Subsequently to the acceptance of said proposition, Harwi ordered and ^received steel of the kind named to the amount of 1,986 pounds, and refused to order or receive more than that, on the ground that the de mancls of Ms business did not require it, and claiming that it was understood at the time the proposition was made and accepted that only so much of the five tons should be ordered as was needed by him. Because of such refusal this action was commenced, April 19,1889, to recover damages alleged to have been sustained because of the refusal on the part of Harwi to take steel to the extent of the five tons. On the trial, the court admitted evidence to show, and the jury found, that the selling agent of the plaintiff company and Harwi entered into an oral agreement to the effect that Harwi, at the prices named in the written proposition, should order of the plaintiffs and take such steel as he might need in his business ; and that the written proposition was signed by Harwi because of the representations of the selling agent that there was a combination among the manufacturers of tool steel, and that the plaintiffs, as members of such combination, were not allowed to sell steel at the prices offered to the defendant in less quantities than five tons, and that they desired the written proposition of prices for the five tons for no other purpose than that they might have it, if necessary, for use with the combination to justify a sale at the prices given to the defendant. It was admitted upon the trial that the plaintiffs were a limited partnership organized under the laws of Pennsylvania, and that such laws, as they affected the capacity of plaintiffs to contract, contain this provision : “No debt shall be contracted or liability incurred for such association, except by one or more of such managers ; and no liability for an amount exceeding $500, except against the party incurring it, shall bind the said association, unless reduced to writing and signed by at least two managers.” Under the instructions of the court, the jury found that the actual contract between the plaintiffs and the defendant did not require the defendant to order or accept a greater quantity of steel than he had actually received and paid for; and that there was, consequently, no violation or breach of the contract on his part. On this finding, the court rendered judgment against the plaintiffs for costs. We think the judgment must be affirmed, even conceding that the contract made by the selling agent was as claimed by the plaintiffs in this action. The demurrer interposed by the defendant to the plaintiffs’ evidence raised the question of the right of the plaintiffs to base any right of recovery upon this alleged contract. The evidence shows that the contract created a liability for an amount exceeding $500 ; that it was not signed by any one who was a manager of the company, and, consequently, that it was such a contract as the act under which the plaintiffs were organized prohibits the company from entering into in the manner attempted in this case. This statute has been construed by the supreme court of Pennsylvania to apply to contracts of this character, and to protect such a limited partnership from liability attempted to be thus created by agents of the company, unless the contract be signed by at least two of its managers. (Melting Co. v. Reese, 118 Pa. St. 355, 362.) That was a case where it was sought to enforce the specific performance by the company of a contract for the sale of more than $500 worth of its manufactured goods. The court held that the action could not be maintained against the company because of the invalidity of the contract, it not being signed by two managers of the company. In the opinion the statute is construed as follows : .“The term 'liability’ expresses in the broadest and most comprehensive manner any form of legal obligation, certainly all sncli as are measured by money values. A purchase for more than $500 would undoubtedly be a liability prohibited: Why not a sale? The purchase imposes an obligation to receive a commodity and pay for it, and if this obligation is not discharged by performance, a liability to pay damages for its breach ensues. A sale imposes an obligation to deliver a commodity and receive money for it, and if not discharged a liability to respond in damages for its breach results. We can see no essential difference between these two different species of liabilities, in construing a legislative enactment such as this, the manifest purpose of which is to protect the association and its members from all obligations not sanctioned in the manner especially directed.” The construction put upon this statute by the supreme court of that state will be followed in this case. (Hamilton v. H. & St. J. Rld. Co., 39 Kan. 56.) Mutuality of obligation is one of the requisites of every contract. If the contract in question is such an one as the officers and agents of this company cannot make so as to bind the company unless sanctioned in the manner directed by the statute, it is difficult to see how they can rely upon it, so far as it is executory, as the basis of a claim against another party for its breach. We are of opinion that the judgment entered in this case was authorized by the plaintiffs’ own showing. Should we further consider the merits of the case, we think parol evidence was . admissible for the purpose of showing that the real contract between these parties was not reduced to writing; that the writing offered in evidence was not intended to evidence the contract, and that the real purpose of the parties was that it should be used for an entirely different object. (Wire-Mill Co. v. Barb-Wire Co., 46 Kan. 773; Schind ler v. Mulheiser, 45 Conn. 153; Grierson v. Mason, 60 N.Y. 394.) Various rulings of the court upon the admission of evidence are assigned for error, but under the view we take of the case they are unimportant and immaterial. The judgment will be affirmed. All the Judges concurring.	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The opinion of the court was delivered by Cole, J. : On February 20,1893, Hannah L. White-side obtained a personal judgment in the district court of Stafford county against Mary and Frederick Schulz in the sum of $327, and in the same action, and at the same time, also obtained a decree of foreclosure directing a sale of certain real estate situated in the city of St. John, Stafford county, Kansas. On September 25, 1893, said real estate was sold at sheriff’s sale pursuant to said decree, and Hannah L. Whiteside became the purchaser of the same, holding the same until some time in 1894, when,, for a valuable consideration, she conveyed the said real estate to the Lockwood Mortgage Company, which, at the time of the commencement of this action, was the legal owner thereof. On the 3d day of August, 1893, the board of county commissioners of Stafford county made an order and caused the same to be entered of record on its journal in the office of the county clerk of said county, which order directed the clerk of the district court to list all judgments shown by the records of his office, and certify the same to the county clerk, and directed the county clerk to place said list of judgments on the 1893 tax-rolls to be taxed as other personal property of that year. In October, 1893, the said board made a further order, to the effect that whoever filed an affidavit with the county clerk that the judgments in his favor were of no personal value should be exempt from having such judgments placed upon the tax-roll. Some time between the making of the first and second orders the clerk of the district court of Stafford county furnished the required list to the county clerk, and upon such list was the judgment of Hannah L. Whiteside above referred to. Said judgment was not entered upon the personal-property tax-rolls of any township, city or school district of said county but was entered upon the real-estate tax-rolls of said county and there was levied and assessed against said judgment a tax in the sum of $7.96. In March, 1894, the county treasurer of Stafford county issued to the sheriff a personal-property warrant for the amount above specified, being the unpaid taxes on such judgment as shown on the tax-roll, and the sheriff returned said tax warrant unsatisfied, and the tax warrant with the indorsements thereof was filed with the clerk of the district court on May 23, 1894, and by that officer entered upon the judgment docket of said court against Hannah L. Whiteside in the sum of $7.96. On December 20, 1894, the clerk of the district court of Stafford county issued to the sheriff of said county a real-estate tax warrant commanding said sheriff to make said sum of $7.96 out of the lands and tenements of Hannah L. Whiteside, and, under such warrant, the sheriff advertised the real estate above referred to for sale. Prior to the issuance of the real-estate tax warrant defendant in error had purchased said real estate from Hannah L. Whiteside without any personal knowledge of any lien or claim of the board of county commissioners of Stafford county. During all the times above mentioned Hannah L. Whiteside was a non-resident of the state of Kansas, and had no business located within said state. No assessor of Stafford county assessed or attempted to assess the judgment in her favor, and no notice was either given or attempted to be given by the county clerk or the board of county commissioners of Stafford county to Hannah L. Whiteside, or defendant in error, of the listing or assessment of said judgment, nor had either of said parties any notice of either of the orders made by the board of county commissioners until after the real estate had been advertised for sale and no attempt was made either by the county clerk or board of county commissioners of Stafford county to give any notice to such parties of either of said orders. This action was commenced by the defendant in error in the district court of Stafford county for the purpose of enjoining the sale of said lands, and on January 23 the probate judge of Stafford county, in the absence of the Hon. Ansel R. Clark, judge of the district court, granted a temporary restraining order. The petition filed in this case recited the facts as above set forth, and plaintiffs in error filed their demurrer to the same upon the following grounds, to wit: (1) That the petition did not state facts sufficient to constitute a cause of .action ; (2) that several causes of action were improperly joined; and (3) that there was a defect of parties defendant. The demurrer was overruled, and plaintiffs in error not desiring further to plead, the district court granted a permanent injunction, from which ruling and judgment of the court the plaintiffs in error bring the cause here for review, the judge of said court having certified that this is one of the excepted cases referred to in chapter 245 of the Laws of 1889, as it involved the tax and revenue Jaws of the state of Kansas. Several important questions are presented in this case. The most important of which, as is conceded by both plaintiffs and defendant, is the right of the state or county to levy a tax upon a judgment rendered in this state and belonging to a non-resident. We shall endeavor to answer each of the questions presented. The defendant in error contends, first, that as the assessment of this judgment was not placed upon the personal property tax-roll of any city, school district or township of Stafford county the tax was.therefore void. Our opinion is that in this regard the contention of defendant in error is not correct, and that, in such a case, the tax would be at most only voidable, and, before an injunction could be allowed to restrain the collection thereof for that reason, there must have been a tender made upon some reasonable valuation, of the property attempted to be taxed. . (Comm’rs of Leavenworth Co. v. Lang, 8 Kan. 284; City of Lawrence v. Killam, 11 id. 499.) The defendant in error further contends that, where no assessment has been made by the assessor of any city or township of any personal property within a given county, and the county clerk or board of county commissioners of said county proceeds under paragraph 6918, as was done in this case, to place the omitted personal property upon the tax-roll, the first step necessaiy to be taken in order to make a tax levy upon such property valid must be the giving of the notice required by said paragraph. Such paragraph, so far as it is here applicable, reads as follows : ‘ ‘ The county clerk, or board of county commissioners, if he or they shall have reason to believe that . the assessor has not returned the full amount required to be listed in his city or township, or has omitted any personal property, moneys, credits, . . . which are by law subject to taxation, shall proceed at any time before the final settlement with the county treasurer to correct the returns of the assessor, and to charge such person, company or corporation on the tax-roll with the proper amount of taxes ; to enable him to do which he is hereby authorized and empowered to issue compulsory process, and require the attendance of any person or persons whom he may suppose to. have a knowledge of the value of such articles of personal property, moneys, credits, . . . and examine such person or persons, on oath or affirmation, in relation to the statement or returns. And it shall be the duty of the said clerk, in all such cases, to give at least five days’ notice to such person, company or corporation, by the sheriff leaving a copy of the notice with the person, if he resides in the county ; and if the person does not reside in the county, then by putting a copy of said notice in the post-office, properly directed to said person, and if a company or corporation, by leaving a copy of the notice at the nearest and usual place of business of said company or corporation, before entering the said increased valuation on the tax-roll, that the said, person, company or corporation may have an opportunity of showing that the statement or return to the assessor was correct.” In the case of Coal Co. v. Emlen, 44 Kan. 117, in referring to this section, the court says : “To enable the county clerk or board of county commissioners to successfully correct such returns, the county clerk is authorized to issue compulsory process and bring before him any persons who he may suppose have knowledge upon the subject; But before the county clerk or board of county commissioners shall proceed to correct any return of the assessors, they must give the property owner five days’ notice, to be served as required by section 70.” The notice prescribed in the paragraph above quoted is therefore jurisdictional in its character, and in order for the board of county commissioners or the county clerk to enter upon the assessment rolls personal property which has been omitted by the assessor, whether such omission be intentional or by mistake, and assess a legal tax thereon, there must first be served in the manner prescribed by the statute the five days’ notice therein referred to. Two other questions presented may be considered together. It is contended upon the part of the defendant in error that no valid levy was made upon the land in question; and upon the part of the plaintiffs in error it is contended that the defendant in error is in no position to challenge the tax in question, for the reason that this proceeding is a collateral attack upon the judgment of a competent court. Neither position is correct. -The statute provides what may be termed a special proceeding, which is summary in its nature, for the purpose of collecting the revenues needed for conducting the business of the different political divisions of the state and providing for the protection of her citizens, and if the provisions of the statute are fulfilled by the proper authorities that is all that is necessary. Besides, in this case, if the tax was a valid one, defendant in error took the land with constructive notice of the tax lien. For the same reason, viz., that the proceeding is a summary one, special in its nature, the record made in the office of the clerk of the district court upon the judgment docket does not rise to the dignity of a judgment rendered by the court which' has had all the parties properly before it. And, in a case like this one, where no attempt has been made to serve the notice required by statute, the proceeding would be void and subject to collateral attack. (McNeill v. Edic, 24 Kan. 108.) We come now to the most important question in this case, which is one that has been the subject of litigation for many years in this country. The writer of this opinion has approached its decision with considerable reluctance, and yet with a clear personal view as to the law as established by the great weight of authority. The taxing power of the state is one which should be zealously guarded within a reasonable construction of the constitutional and statutory provisions affecting the same. Our statute provides that “All property in this state . . . shall be subject to taxation.” (Gen. Stat. 1889, ¶6846.) “The term ‘personal property’ shall include every tangible thing which is the subject of ownership ; . also all tax-sale certificates, judgments, notes, bonds, and mortgages, and all evidences of debt secured by lien on real estate.” (Gen. Stat. 1889', ¶ 6847.) The decision of this whole question, of course, de pends upon the answer to the question : Where is the situs of a judgment rendered in a court of this state in' favor of a non-resident? A judgment is a property of an intangible character and can hardly be said to have any actual situs anywhere. It cannot be seized by any kind of process, and whatever situs it has must be fixed either by the residence of the owner thereof, or by a location given to it from the place of its rendition or the character of the judgment rendered. It is contended on the part of the plaintiffs in error that the situs of the judgment in question is fixed in Stafford county because the same was there rendered and appears of record, and also, because it is a lien upon real estate situate in that county. Under our statutes, after the rendition of a judgment, a transcript thereof may be taken from the office of the clerk of the district court of the county in which it is rendered and filed in the district clerk’s office in any other county or counties of the state, having from the time of such filing the same force and effect as it possessed in the county where such judgment was rendered. As personal property must be taxed either at the place of residence of the owner or the place of its situs, if the same is separate and apart from the residence of the owner, the question would then arise, in which county the situs of a judgment was, where one or more transcripts had been filed in one or more counties of the state, and the owner of such judgment was a non-resident of the state. In that case the judgment would have as much of an abiding place in a county in which a transcript was filed as in the county in which it was originally rendered. There must be some reason, then, stronger than that a judgment was rendered in a certain county to tax the same, when it is the property of a non-resident, because .the situs must be definitely determined and fixed at the point of taxation in order to give the proper officials control over the same for that purpose. Is the power to tax a judgment gained by reason of the fact that it is rendered upon the foreclosure of a mortgage upon lands within any given county ? We are. of the opinion that it is not. In this state a mortgage of real property is in no sense a conveyance of any interest in land, but is merely a security ; and reducing the debt secured by mortgage to judgment does not alter that condition, which remains the same until sale and confirmation under the decree of the court. There is, therefore, no interest in lands reached by taxing such a judgment. Besides, the mortgage securing a single debt is frequently given upon real estate situated in several counties, and the action to foreclose the same may be brought and judgment obtained in any one of the counties in which the land described in the mortgage is situated. Such being the case, if the power to tax were gained by reason of the fact that the judgment was a lien upon the real estate described in the mortgage, the question would naturally arise, in which county would a judgment, rendered upon foreclosure of a mortgage upon lands in several distinct counties, be taxable ? If the reason is a sound one, then such a judgment would be liable for taxation in either or all of the counties where the lien was created thereby, and that would be contrary to all the true doctrines of taxation. The supreme court of this state has never passed upon this question, and we are rele1 gated to the decisions of courts of last resort in other states and text-writers upon the subject to determine what is the correct doctrine. One of the principal cases bearing upon this point is State Tax on Foreign- Held Bonds, reported in 15 Wall., at page 300, and cited in nearly all the subsequent authorities on this subject. The opinion in that case was delivered by Field, J., and is exhaustive in its citations and reasoning. In that case, after referring to the law of Pennsylvania, which, like that of our own state, prescribes that a mortgage, though in form a conveyance, is merely a security for the debt, the court says : ‘ ‘ Such being the character of a mortgage in Pennsylvania, it cannot be said, as was justly observed by counsel, that the non-resident holder and owner of a bond secured by a mortgage in that state owns any real estate there. A mortgage being there a mere chose in action, it only confers upon the holder or the party for whose benefit the mortgage is given a right to proceed against the property mortgaged, upon a given contingency, to enforce, by its sale, the payment of his demand. This right has no locality independent of the party in whom it resides. It may undoubtedly be taxed by the state when held by a resident therein, but when held by a non-resident it is as much beyond the jurisdiction of the state as the person of the owner.” In that case, also, the court cites approvingly the case of People v. Eastman, 25 Cal. 603, where the same question was discussed as presented here. Sawyer, J., in delivering the opinion of the court in the case of People v. Eastman, supra, says: “The money at interest, debt or obligation is the principal thing, and the mortgage is only a security — a mere incident to the debt or obligation. The mortgage has no existence independent of the thing secured by it; a payment of the debt discharges the mortgage. The thing secured is intangible, and has no situs distinct and apart from the residence of the holder. It pertains to and follows the person. The same debt may, at the same time, be secured by a mortgage upon land in every county in the state ; and if the mere fact that the mortgage exists in a particular county gives the property in the mortgage a situs subjecting it to taxation in that county, a party, without further legislation, might be called upon to pay the tax several times — for the lien for taxes attaches at the same time in every county in the state, and the mortgage in one county may be a different one from that in another, although the debt secured is the same. The fact that- a mortgage has been foreclosed and the lien carried into a judgment does not, in our opinion, change the character of the property with reference to the question under discussion. The principal thing is still a debt, secured by a judgment lien instead of a mere mortgage lien.” In the case of City of Davenport v. M. & M. Rld. Co., 12 Iowa, 539, this same question was under discussion. The statute of that state with reference to the taxation of property within the state was similar to our own. In that case the court says : “We cannot concede, however, that it was the intention of the legislature to tax mortgages when owned by non-residents of the state. Section 3 of said act provides that all other property, real and personal, within this state is subject to taxation, etc., and mortgages and other security are within the classes of property named. Is a mortgage owned by a nonresident property within this state, within the meaning of this section? A mortgage, so long as the right of redemption continues, is real estate. Both in law and equity the mortgagee has only a chattel interest. See Willard on Mortgages, vol. 1, page 163. It is true that the situs of the property mortgaged is within the jurisdiction of the state, but the mortgage itself, being personal property, a chose in action, attaches to the person of the owner. See Story, Confl. of Laws, § 379. It is agreed by the parties that the owners and holders of the mortgages are non-residents of the state. If so, and the property in the mortgage attaches to the person of the owner, it follows that these mortgages are not property within the state, and, if not, they are not the subject of taxation.” A similar doctrine is laid down in the case of Worthington v. Sebastian, 25 Ohio St. 1, in the following language: “Intangible property has no actual situs. If, for purposes of taxation, we assign it a legal situs, surely that situs should be the place where it is owned, and nor the place where it is owed. It is incapable of a separate situs,- and must follow the situ-s either of the creditor or the debtor. To make it follow the residence of the latter is to tax the debtor and not the creditor, to-tax poverty instead of wealth.” We might add to the cases above cited a long list of similar authorities, but will only cite the following : 1 Desty, Tax. 326; Cooley, Tax. (2d ed.), 15, 21, 22; Herriman v. Stowers, 43 Me. 497; City of St. Paul v. Merritt, 7 Minn. 258; Catlin v. Hull, 21 Vt. 152; Kirtland v. Hotchkiss, 100 U. S. 491. It is true that cases have been cited from the states of Michigan and Oregon holding apparently a contrary doctrine, but an examination of those authorities shows that they are founded upon special statutes which expressly provide that a mortgage by which a debt is secured upon land within those states shall, for the purpose of taxation, be deemed and treated as an interest in the land so pledged. The force of those authorities, then, is simply that the courts of those two states have determined that the legislature, in their opinion, have the power to fix the situs for the purpose of taxation at the place .of the location of the property mortgaged, and that for such purposes real-estate mortgages may be treated as an interest in lands. Upon the other hand, the cases above cited in support of the doctrine here announced, tbgether with the nu merous decisions along the same line, are all upon the basis that personal property, consisting of mortgages and debts generally, has no situs independent of the domicile of the owner, and such decisions are founded upon statutes similar to our own. The question as to whether the legislature may provide that, for the purpose of taxation, real-estate mortgages and judgments of foreclosure thereon may be treated as an interest in land, as held by the courts of Michigan and Oregon, is not presented by this case for decision, and, until the legislature of this state shall so provide, it is not necessary for a reviewing court to determine the validity of such a statute. Plaintiffs in error cite the cases of Wilcox v. Ellis, 14 Kan. 588; Fisher v. Comm’rs of Rush Co., 19 id. 414; Blain v. Irby, 25 id. 499, as tending to support the position that the judgment in question is taxable in this state. The first of these cases holds that certain notes given in the state of Illinois, belonging to one who resided in the state of Kansas, and which notes .had never been in the state of Kansas but had been by the owner left for collection in the state of Illinois, were not properly taxable in this state. The second case cited holds that certain notes, which were made and left in the state of Iowa and which had never been in Kansas, were not properly taxable in this state although the owner resided here. But, in each 'of these cases, the property in question was tangible property, and the owner thereof had, by a distinct act, fixed a situs therefor separate and apart from his own domicile. This cannot be said to apply where one procures a judgment to be rendered within the limits of this state, for the reason that, in itself, the judgment is intangible in its nature, and is simply a portion of the procedure for the enforcement of a right, the situs of which right can only be, from its very nature at the domicile of the owner. The case of Blain v. Irby, supra, simply holds that promissory notes and mortgages are goods and chattels within the meaning of section 92 of the tax law, and may be levied upon and sold by a sheriff holding a tax warrant, provided the sheriff can obtain possession of them without committing any wrong. A distinction between that case and this one is obvious, for the judgment is not subject to levy or execution, and in that case the court draws this distinction in the following language: ‘ ‘ Promissory notes are different from almost all other kinds of choses in action. They may be transferred from one person to another by assignment, or by indorsement, or by mere delivery. They may be transferred about as easily, and almost in the same manner, as a horse or a cow; and, like a horse or a cow, they have a personal and independent situs of their own. Wilcox v. Ellis, 14 Kan. 588; Fisher v. Comm’rs of Rush Co., 19 id. 414; State Tax, etc., 15 Wall. 300. They have such an independent situs that they may be taxed where they are situated. Of course ordinary choses in action cannot be levied upon by an officer in the ordinary manner, because an officer cannot seize them or take them into his possession.” It is also urged by the plaintiff in error that the levy of the tax in this case should be supported upon the principle that protection and taxation are correlative terms; that the judgment in question was procured in this state by the assistance of the law and the officials thereof, and that a non-resident could not enforce his rights except through the laws of Kansas. It is true that, in general, the principle above stated applies, but not to the extent claimed by the counsel for the plaintiff in error. For illustration, suppose a resident of Kansas held notes against a person in the state of Illinois, and tliat such notes were in the possession of the resident of Kansas at his domicile. Clearly such notes would be subject to taxation in the state of Kansas, and yet the holder of such notes would be compelled to look for protection to the laws of the state of Illinois, where the debtor resided and his property was located. We are clearly of the opinion that the judgment in question was not subject to assessment and taxation in Stafford county, and that therefore the proceedings by which the property of the defendant in error was sought to be subjected to the payment thereof were void, and that the district court properly enjoined the sale of the real estate in question for the tax upon such judgment. The judgment of the district court will be affirmed. All the Judges concurring.	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The opinion of the court was delivered by Garver, J. : This was an action brought in the district court of Cloud county by George Wagner, defendant in error, against Wilber-Scott, plaintiff in er ror, to recover the' possession of 10 head of horses. The only matter this court is called upon to consider is the right of the plaintiff below to maintain the action. The facts are substantially these : On the 2d day of April, 1889, a chattel mortgage was executed by John Wagner, Clara Wagner and W. F. Wagner to Homer Kennett, on certain personal property, as security for the payment of a promissory note executed by the mortgagors to Kennett. Said note was further secured by a second mortgage on real estate in Cloud county, executed by John and Clara Wagner. The chattel mortgage included some, horses, which were described as “six head of geldings of various ages and colors, six mares of various ages and colors. . . . This mortgage is intended to, and'does, .include, cover and convey all of the horses, mares, colts, cattle and hogs now owned by said first parties (except cattle mortgaged to Bankers’ Loan and Trust Company), and all increase of the same, whether correctly and specifically described above or not, and includes all stock on the farm, except as above and the horses owned by George Wagner.” On the 28th day of February, 1891, an action was commenced by Homer Kennett in the district court of Cloud county, on his note and mortgages, against Clara Wagner, W. F. Wagner, George Wagner, the Cloud County Bank, and others, in which he asked for a personal judgment against Clara Wagner and W. F. Wagner, as makers of the note, -and for a foreclosure' of the real estate and chattel mortgages which had been given to secure the same. John Wagner died between the time of the giving of the mortgages and the commencement of the action, and George Wagner and certain other persons, who were heirs of the deceased, were joined as defendants. The only allegations in plaintiff's petition affecting George Wagner were: “That all other defendants have or claim to have some interest in or to the above-mentioned mortgaged premises, the exact extent of which interest is unknown to plaintiff, but whatever such interest may be, it is subject and inferior to the interest of the this plaintiff ” ; and the prayer : “ That said premises may be sold to satisfy the same, clear of any claim or lien of any of the defendants, subject to the portion of said mortgages given to and retained by Crippen, Lawrence &■ Co., and that a receiver may be appointed to take charge of all of said property/ real and personal, and rent the same to the best advantage during the pendency of this action, and that he may have all other and further and different relief that he may under the facts be entitled to.” Service of summons in that action was made on George Wagner by publication. On the 20th day of April, 1891, the action brought by Kennett was consolidated with an action commenced February 27, 1891, by Josiah Sanborn against the same defendants and others, including Homer Kennett, for foreclosure of a prior mortgage on the real estate included in the Kennett mortgage. Personal service of summons was made on George Wagner in the'Sanborn suit. George Wagner made no appearance in either of said cases prior to judgment. The petition filed by Ken-nett was filed as a cross-petition in the Sanborn case, pursuant to the order of consolidation, and on the 27th day of April, 1891, judgment was rendered upon the petition and the several cross-petitions filed in that case, personal judgment being rendered against the makers of the notes, a sale of the mortgaged property ordered for the payment of the judgment, and an order made barring George Wagner and his codefendants from all interest in the real estate after such sale. The journal entry of the judgment, so far as it affects or relates to the personal property claimed under the Kennett chattel mortgage, recites : “It is further adjudged and decreed by the court, that in case' the said defendants, Clara Wagner and W. F. Wagner, fail for three days from this date to pay the said Homer Kennett the several sums of money found due as aforesaid to him, with the interest due and to become due thereon as aforesaid, and the costs of this action, an order issue to the sheriff of said county, commanding him to cause the chattels in his answer described, to wit: 65 cows and heifers two years old and over, 65 steers and heifers one year old this spring, five bulls one year old this spring, two old bulls, six head of geldings of various ages and colors, a mixed lot of hogs and pigs, otherwise described as all of the horses, mares, colts, cattle and hogs which were owned by John, Clara and W. F. Wagner, or either of them, on April 2, 1889, and all increase that may have accrued thereto, including a mare sired by ‘Invincible/ now in possession of James Neel, also a stallion sired by ‘Invincible/ two years old this spring, and all of the animals of the kind hereinbefore named which are now kept on or about the premises herein ordered sold, to be advertised and sold in the manner prescribed by law, and apply the proceeds arising from such sale to the payment of the judgment. . . Neither in the petition, nor in any finding of the court, is-there any more particular or definite description of. the personal property than that above quoted from the petition and journal entry, t On the 26th day of May, 1891, an order of sale, directed to the sheriff of said county, was issued in said case, following the description of the personal property set out in the journal entry.. By virtue of this order of sale, Wilber Scott, as sheriff of Cloud county, went to the farm which had been occupied by John Wagner in his life time, and took possession of 25 head of horses and colts which he found thereon, among them being the 10 head now claimed by George Wagner. On the trial of this case, George Wagner was found to be the owner of the 10 head of horses and colts, and judgment for their possession was rendered in his favor. The correctness of this judgment is attacked on two grounds : First, that it was determined by the judgment rendered in the Sanborn and Kennett cases that these horses were included in the Kennett chattel mortgage, and, therefore, that George Wagner is concluded thereby from further questioning that fact; second, that the property was taken by the defendant, as sheriff, on an order issued on a judgment against the plaintiff, and, hence, that an action of replevin does not lie to retake the same. I. The conclusiveness of a former decision or judgment upon any controverted matter is determined not merely by the form or nature of the action, but is largely dependent upon the issues presented or joined by the pleadings, and upon what facts, within such issues, were actually passed upon by the court. (C. K. & W. Rld. Co. v. Comm’rs of Anderson Co., 47 Kan. 766.) A judgment is coextensive with the issues upon which it is founded, and is only conclusive upon matters within those issues which were necessarily decided and involved in the judgment. (Smith v. Auld, 31 Kan. 262; Hoisington v. Brakey, 31 id. 560; Hentig v. Redden, 46 id. 231; National Bank v. Peters, 51 id. 62; Aurora City v. West, 7 Wall. 82; Dickinson v. Hayes, 31 Conn. 417.) When an action is founded upon a cause of action which necessarily requires the determination of the same general questions as that involved in a former action and judgment between the same parties, the former judgment is conclusive of all matters actually litigated, or which might have been litigated, under the pleadings therein. (Venable v. Dutch, 37 Kan. 515; Townsdin v. Shrader, 39 id. 286; Hentig v. Redden, 46 id. 231.) As to a matter not shown by the record to have been necessarily considered and determined in a former action between the same parties, as when the causes of action are not the same, evidence aliunde the record may be introduced for the purpose of showing such previous determination; but an estoppel exists in that case only when such matter was within the issues, and was properly considered, in the former action. (Bonvillain v. Bourg, 16 La. Ann. 365; Packet Co. v. Sickles, 5 Wall. 580.) An estoppel cannot arise as to a controverted fact which is foreign to any issue tendered in a previous action, even though, under different pleadings in that action, the same fact could have been properly considered and determined. (Hardy v. Mills, 35 Wis. 141; The People v. Johnson, 38 N.Y. 63; Malloney v. Horan, 49 id. 111; Duncan v. Holcomb, 26 Ind. 378; Bentley v. O’Bryan, 111 Ill. 53.) The petition of Kennett contained no allegation' and suggested no issue which concerned George Wagner, except that with reference to thé real estate. It expressly stated that the plaintiff made no claim to any horses except those belonging to the mortgagors at the time the mortgage was executed, and notified George Wagner that he was made a party to the action simply because of his interest in. the real estate. It cannot be said that anything was admitted or determined in that action, by the default of George Wagner, beyond the truth of -the allegations of the petition; and no inquiry could properly be made in that case, under the pleadings, as to any specific personal property owned or claimed by him. (Wade v. Miller, 32 N. J. L. 296; Lewis v. Smith, 11 Barb. 152.) It is not claimed that in the former case there was any actual inquiry into or determination of the title to these particular horses. It may even be seriously questioned whether a judgment and execution as indefinite as those shown by the record in this case with reference to the personal property should not be held to be void. A judgment or order of sale directed against specific property should end controversy and dispute as to the identity thereof by an accurate and definite description of what is claimed under it. How; otherwise, is the officer to know with any certainty what property he should sell? (Struble v. Neighbert, 41 Ind. 344; Stout v. Cook, 37 Ill. 283; Gault v. Woodbridge, 4 McLean, 329; Taylor’s Lessee v. Cozart, 4 Humph. 433; Porter v. Byrne, 10 Ind. 146.) The description of the property in the mortgage, as well as in all the subsequent proceedings, is so indefinite and uncertain that it would be extremely difficult for any one two years after the mortgage was given to know what property was actually included. The description, so far as the mortgage was concerned, was, however, probably sufficient; for, by the aid of inquiries which it suggested, the particular property intended to be included could be ascertained with reasonable certainty. (Brown v. Holmes, 13 Kan. 482; Shaffer v. Pickrell, 22 id. 619; Waggoner v. Oursler, 54 id. 141.) But with the foreclosure of such a mortgage this uncertainty should end. The plaintiff should allege in his petition with definiteness and certainty what particular property is included in the mortgage, and a definite description of the property found by the court to be so included should appear in the judgment. Had Kennett alleged in the petition filed for th*e foreclosure of his mortgage that the par ticular horses now in controversy were claimed as included in the mortgage, and George Wagner had been duly notified thereof, the decision of the court in that action, upon that question, would have been conclusive between the parties in this case. We hold that the question of the ownership of the horses in controversy was not and could not have been, under the pleadings in the former action, determined, and that the defendant in error was not estopped from setting up and litigating his claim to the property in this case. II. The other question presented we think must also be answered against the contention of plaintiff in error. While the defendant in error was a party to the action in which the order of sale was issued, the process by virtue of which the property was taken was not against him. It might as well be said, if, under the same order, the sheriff had levied upon property belonging to the Cloud County Bank, which was a party defendant because of its holding a second mortgage on the land, that the bank could not replevy its property from the officer. The order did not direct the sheriff to take or sell any property of George. Wagner. There is no reason for giving the statute a meaning different from, that clearly expressed by the language : ‘ ‘ That it was not taken in execution on any order or judgment against said plaintiff, . . . or by virtue of an order of delivery issued under this article, or any other mesne or final process issued against said plaintiff. ’ ’ It is true, as stated by counsel for plaintiff in error, that the jury specially found that the property was taken under an order against plaintiff, and it is contended that this finding is conclusive upon this point. Not so. The record contains the order refeited to, and speaks for itself. While it appears to have been issued in an action in which George Wagner was a party, it clearly shows that it was not issued against him. It being conceded that the property was taken under this order, it is for the court, not the jury, to say against whom it was issued. No question is raised .as to the sufficiency of the evidence to prove ownership of the property, nor other errors assigned except those considered in this opinion. The judgment .will be affirmed. All the Judges concurring.	[ -16, 110, -36, -56, 74, -32, 42, -118, 66, -31, -77, 87, -23, -125, 20, 57, -30, 45, 81, 108, 70, -78, 54, 98, -102, -5, -45, -35, -75, 76, -28, -41, 9, 40, 74, 29, -58, -94, -63, 84, -116, -124, -119, -19, -37, -64, 48, 57, 54, 73, 49, -81, -29, 36, 117, 115, 105, 44, 123, 47, -64, 121, -86, -122, -1, 6, -110, 68, -120, 67, -54, -82, -112, 49, 0, -24, 91, 54, -122, -12, 9, 27, 13, 50, 102, 33, 109, -49, 104, -120, 15, -11, -97, -89, -106, 88, 35, 8, -66, -99, 114, 80, -122, -4, -26, 93, -100, 108, 19, -50, -42, -93, -121, -4, -102, 3, -37, -81, 49, 97, -49, 32, 125, 6, 52, -69, 14, -67 ]
The opinion of the court was delivered by Clark, J. : This is an action brought in the district court of Cloud county to recover from G. C. Bowman & Co. a sum of money advanced to them by Wheaton & Luhrs, as commission merchants, in excess of the amount alleged to have been realized by the plaintiffs from the sale of a shipment of eggs consigned to them by the defendants. An answer under oath was filed, in which the correctness of the account of sales as set forth in an exhibit attached to the petition was denied, alleging that the plaintiffs were negligent in the sale of the eggs ; that they sold them at less than the market price, and denying all liability to the plaintiffs. To this answer the plaintiffs replied by a general denial. The case was tried before a jury, evidence being introduced by both parties. At the close of the evidence the court, over the objection of the defendants, instructed the jury that there was no dispute as to the amount realized from the sales, it being the difference between the amount advanced to the defendants and the amount claimed to be due as set forth in the petition, and that, unless the plaintiffs were negligent in not using reasonable care and diligence in handling and selling the eggs, they were entitled to recover the amount sued for; that there was not sufficient evidence upon which to base a finding of negligence in that respect, and therefore that there was nothing for the jury to consider ; and directed them to retire and select one of their number foreman, and have him sign the verdict which the court had prepared, being a finding in favor of the plaintiffs for the full amount claimed by them in their petition, to which instructions the defendants duly excepted. The jury retired, and thereafter returned into court the verdict so prepared, signed by their foreman. The defendants duly demanded that the jury be polled, when, in answer to the question as to whether such was their verdict, two of the jurors responded “No” ; and thereupon, over the objection of the defendants, the said verdict so prepared and signed was received and filed, and the jury were discharged from the further consideration of the case. A motion for a new trial was in due time filed and thereafter overruled, and judgment was rendered in favor of the plaintiffs for the full amount claimed by them. The defendants duly excepted to the several rulings of the court, of which complaint is made, and seek a reversal of the judgment. It is first contended that the court erred in directing a verdict in favor of the plaintiffs; but, as counsel have not in their printed brief shown wherein the court erred in giving the instructions complained of, nor directed our attention to the pages of the lengthy record in which the evidence may be found tending to question in any manner the correctness of the account of sales as testified to by plaintiffs, or as tending in any manner to establish the negligence alleged in the answer, we think this court may rightfully assume that all the material facts in the case were uncontradicted, and that the plaintiffs were entitled to a verdict thereon. If such were the case, the court did not err in directing a verdict in their favor. (Hillis v. National Bank, 54 Kan. 421.) But, even admitting that the court properly directed a verdict, the plaintiffs in error contend that the court erred in receiving the pretended verdict as a lawful one after two of the jurors had announced in open court, before its reception, that it was not their verdict, and thereafter discharging the jury and rendering judgment in favor of the plaintiffs. Section 5 of the bill of rights provides that “ the right of trial by jury shall be inviolate.” Section 266 of the civil code provides that issues of fact arising in actions for the recovery of money shall be tried by a jury, unless a jury trial is waived or a reference be ordered. No reference was ordered in this case, nor was a jury trial waived; but, on the contrary, the defendants demanded a jury trial. In Hodges v. Easton, 106 U. S. 408, 412, Mr. Justice Harlan uses the following language : “It was the province of the jury to pass upon the issues of fact, and the right of the defendants to have this done was secured by the constitution of the United States. They might have waived that right, but it could not be taken away by the court. Upon the trial, if all the facts essential to a recovery were undisputed, or if they so conclusively established the cause of action as to have authorized the withdrawal of the case altogether from the jury, by a peremptory instruction to find for plaintiffs, it would still have been necessary that the jury make its verdict', albeit in conformity with the order of the court.” In Maduska v. Thomas, 6 Kan. 153, the court held that, “in an action in which the parties are entitled to a trial by jury, and where the parties have not waived a jury trial, it is error for the court to render a judgment upon the issues therein, except upon the verdict of a jury.” In that case, as in this, the court instructed the jury to find a verdict for the plaintiff. A form of verdict ivas, .under tlie direction of the court, prepared by the clerk. It was signed by the foreman, returned to the clerk, and read to the jury. The defendant demanded that the jury be polled, which the court refused to permit, and the jury were then discharged, and judgment was rendered by the court in favor of the plaintiffs. The supreme court, speaking through Valentine,- J., said : “This judgment is unquestionably erroneous. In a contested case, the judgment to be valid must be founded upon the findings of the court, the report of a referee, or the verdict of a jury. It will not be claimed that this judgment is founded upon the findings of the court; for in a case like this, which can be tried by a jury only, unless the jury is waived, the court has no authority to make findings. It cannot be claimed that the judgment is founded upon a verdict of the jury ; for the record does not merely fail to show that the supposed verdict was the verdict of the jury, but it clearly shows that it was not such verdict. The most that can be said in favor of the plaintiff, with reference to said verdict, is, that the jury disagreed. With all the instructions of the court, only one juror was found to sign the verdict. Several of the jurors refused to sign it, and others expressed no opinion; and the court refused to allow the jury to be polled. Here the court erred. The verdict of a jury is the verdict of each and every juror. The verdict of 11 jurors, or any less number than 12, is not the verdict of the jury.” In Thornburgh v. Cole, 27 Kan. 490, the trial court instructed and directed the clerk to prepare a verdict for the defendants. The verdict was so prepared by the clerk and presented to the jury, and then the court directed one of their number to sign the same as foreman, which was accordingly done. The plaintiff, on the return of the verdict, objected to the filing of the same, and requested the clerk to poll the jury, which request the court refused. Held, error. Horton, O. J., writing the opinion of the court, said : “ Of course, the action of the trial court in refusing to poll the jury when requested so to do by plaintiff was erroneous. A party entitled to a jury trial is entitled to have a verdict of a jury, unless a jury is waived. A judgment is not founded upon a verdict of the jury where such verdict is rendered under the orders and directions of the court, and the party is not permitted to have the jury polled.” (Citing Maduska v. Thomas, supra.) If it was error in the cases last cited to refuse to allow the jury to be polled, the court certainly committed prejudicial error in this case when it received that which, although in form, was not in fact a verdict, as shown by the answers given by two of the jurors in open court in response to the questions propounded to them upon demand of the defendants. It was the .duty of the jury to accept the instructions of the court as the law of the case, and to return a verdict as directed. (Howell v. Pugh, 25 Kan. 96; Irwin v. Thompson, 27 id. 643; Ryan v. Tudor, 31 id. 366.) But two of the jurors refused to follow the directions of the court; hence there was no verdict; and, as this case belongs to that class of cases in which the defendant was entitled to a jury trial, and as no verdict was returned by the jury, the court had no authority to render a judgment in favor of the plaintiffs. (Maduska v. Thomas, supra; Thornburgh v. Cole, supra.) The jury should have been sent out for further deliberation, and have been kept together, until it satisfactorily appeared that there was no probability of their complying with the directions of the court or of otherwise agreeing upon a verdict, in which event it would have been proper to have discharged them and sub mittecl the case to another jury. (Civil Code, §§ 281, 282, 283, 284.) The judgment having been rendered without authority of law, it will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. All the Judges concurring.	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The opinion of the court was delivered by Gilkeson, P. J. : This was an action brought in the district court of Norton county, Kansas, by Harwi &. Lank, as plaintiffs, against Bradley, Wheeler & Co., H. A. Coffin, jr., and W. R. Hill, as defendants, for the recovery of damages upon certain bonds given in an attachment action by Bradley, Wheeler & Co. as principal, and Coffin and Hill as sureties. Defendants made special appearance contesting the jurisdiction of the court by motion, which was overruled. Trial was had and judgment rendered in favor of plaintiffs. Defendants bring the case here for review. The principal ground upon which the review is asked is that the court below possessed no power to render the judgment it did, or any judgment in this action, as it never acquired any jurisdiction of the persons of the defendants. The record discloses that on the 6th day of April, 1891, when the plaintiffs filed their petition in said action, the defendants Coffin and Hill were and continued to be non-residents of Norton county, and residents of the county of Graham ; that Bradley, Wheeler & Co. was a corporation resident of the state of Missouri; that no summons was ever issued, or service attempted by publication, and that the only attempt to notify the defendants was by a certain instrument in writing made some 16 days prior to the filing of the petition, which the plaintiffs claimed was a waiver.of process and an appearance to the action, viz. : "PIill City, Graham County, Kan., March 21, 1891. “ In the case of Harwi & Lank v. Bradley, Wheeler & Co., and H. A. Coffin, jr., and W. R. Hill, in the Norton county district court, we, H. A. Coffin, jr., and W. R. Hill, in view of the fact that the judge of the district court of Graham county, Kansas, is disqualified to sit in said cause, having been of counsel before, and that all of the attorneys in said county have been interested in said cause, or the transaction out of which the cause of action arose, and as of necessity this base would be transferred to an adjacent county, or'to another judicial district, therefore, in order to avoid expense, hereby consent that this cause shall be tried in the Norton county district court, and accordingly enter our appearance in this cause in said Norton county district court, and waive the issuance of summons, reserving the right to answer on or before May 1,1891, without prejudice to a trial at the May term of said court, and it is accordingly stipulated that said plaintiffs, Harwi & Lank, shall file their reply on or before the 10th day of May, 1891. ' H. A. Corrin, JR. W. R. Hill. Harwi & Lank, Plaintiffs.” It becomes necessary to inquire whether or not the defendants were in court at the time judgment was rendered against them. The real question is, Did this agreement amount to an appearance in the action ? If it did not, there was no legal notice of the action. If such an agreement did not confer jurisdiction' over the persons of'the defendants, then the court acquired and possessed no jurisdiction. Our code provides for the institution of suits in the district courts of this state, and the counties .in which the same shall be brought. Section 53 applies to foreign corporations and the counties in which they may be sued. Then come the following provisions : “Sec. 55. Every other action must be brought in the county in which the defendant or some one of the defendants resides or may be summoned.” . “Sec. 57. 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.” ■ “Sec. 59. .The summons shall be issued by the clerk under the seal of the court, directed .to the sheriff of the county, and command him to notify the defendant or defendants . . . that he or they have been sued. . . . ” “ Sec. 64. The service shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence, at any time before the return day.” “Sec. 67. An acknowledgment on the back of the summons, or the voluntary appearance of a defendant, is equivalent to service.” We believe it has been universally held that the method prescribed by statute for the service of process is exclusive of any other method .of service. This is unquestionably the rule in Kansas. (U. P. Rly. Co. v. Pillsbury, 29 Kan. 652.) The filing of the complaint and the issuance of the summons do not confer jurisdiction over the person of the defendant. Jurisdiction over the person of the defendant must' and can only be acquired either by the issuance and service of process in one of the methods pointed out by the statute, or by voluntary appearance. . A court can obtain jurisdiction of a person for the purpose of rendering judgment against him only by the service of process upon Mm, actual or constructive, or by a voluntary appearance in tbe case. (Chambers v. Bridge Manufactory, 16 Kan. 270.) It must be borne in mind that this agreement was made some 16 days before tbe commencement of this action. An appearance, according to the ancient practice, appears to be a proceeding in term time; and that theory, we think, still exists in legal contemplation. It is settled law that a voluntary appearance cures all defects in the process, and that there can be no appearance unless of record. There must be some formal entry, or plea, or motion, or official act, to constitute an appearance, and this should be of record and tried by the record. (Shirley v. Hagar, 3 Blackf. 225; Cassaday v. Reid, 4 id. 178; Carson v. Steamboat, 3 Ind. 194; Scott v. Hull, 14 id. 136; Robinson v. Commissioners, 37 id. 333; McCormack v. National Bank, 53 id. 466.) And in U. P. Rly. Co. v. Pillsbury, supra, Mr. Justice Brewer says: “And before it [defendant] can be adjudged in default and subjected to a judgment upon default, the record must affirmatively show, that, in some of the ways named in the statute, service has been made upon it.” We take it, then, that in this state an appearance is a proceeding in court, and must be1 entered of record, and where entered in a cause it must constitute a part of the record of the proceedings in it. Tested by thebe rules, we are unable to perceive how it is possible for us to hold that the agreement entered into by the appellants constituted an appearance in the court below. We would willingly so hold if we felt authorized ¡to do so, but we cannot. Whatever that agreement may purport to be, or may in good faith have been intended to be, it does not, in our opinion, constitute an appearance within the meaning of the statute authorizing a defendant to appear voluntarily in an action without process being served upon him. (McCormack v. National Bank, supra.) It is apparent upon first view that no such proceeding is warranted by the common law, nor is it within the statutory provision in force in this state. None 'of the requirements of the statute appear to have been observed or complied with, for no writ was ever issued, and the appearance made by the defendant was to contest the validity of this very agreement by which the court assumes jurisdiction. The proceeding, therefore, was not authorized by law, nor were the plaintiffs in error under any legal obligation to appear, because they had not been required so to do in any manner prescribed by law; and if they had failed to appear, their failure could not have been regarded as such a default as authorized the court to give, or justified it in giving, judgment against them. Such an agreement as the one purporting to have been signed by some of the defendants in this case is nothing more than a simple agreement. (Clarey v. Morehouse, 3 Ark. 261.) And it could not be regarded by the court for any purpose, nor could it in any manner subject the defendants to the same legal consequence as if they had failed to appear in the action upon the service of a valid writ. The law does not regard such acts or agreements of the parties to a suit, not made in the presence of the court, or entered of record, as possessing in themselves such absolute verity as the official acts of the accredited officer of the court, whose duty it is to execute and return process, so far as regards the truth of the facts therein stated, as well as upon the reasons of public policy. The legal consequence of not appearing in obedience to the mandate of a valid writ requiring an appearance, legally executed by the proper officer on the parties whose appearance is required, is essentially different from that attached to a like failure to appear in pursuance of the terms of an agreement entered into and signed as in this case by the parties so undertaking to appear. In the former, the legal consequence is that judgment may be given upon such default against the parties so bound to appear. In the latter, the failure to perform an agreement, if valid, may subject the parties so undertaking to a new action upon the agreement, but the court is not thereby warranted in proceeding to adjudicate the case or to pronounce any judgment upon the rights of the defendants ; but the adjudication must in such case remain suspended until the defendants shall be legally served with some valid process requiring their appearance in court to answer to the action, or they, by some action done in court, voluntarily appear and make themselves parties to the proceedings. (Clarey v. Morehouse, supra.) This doctrine we find has been enunciated by the supreme courts of several of the states'. Thus, in Neill v. Baker, 28 Tex. 345, the following instrument was relied upon as a waiver of process and acceptance of service: “ J. M. Baker, administrator, having instituted suit on a note' given by A. Neill, William Rust and William S. Read for $950, due March 1, 1860 : Now, I, said Neill, hereby acknowledge service of said suit, and waive all process, this 8th April, 1860. (Signed) A. Neill.” The court held that this could not be taken as a waiver of process or acceptance of service in this suit, because it clearly imports that the suit to which it relates had already been instituted at its date, whereas the suit had not been instituted until two days afterward. And in Clarey v. Morehouse, supra, an indorsement in writing upon a declaration, signed by the defendants, in which they state that they acknowledge service and waive the necessity of any process in the case, is held to be a mere agreement entered into by them, which cannot dispense with service of process and will not authorize a judgment by default. The statutes of Arkansas governing commencement of an action and appearance by parties are very similar to those of Kansas. In McCormack v. National Bank, supra, the court says: “Jurisdiction of the person of the defendant in a civil action can only be acquired by the issuing of summons and the service thereof in one of the modes provided by statute, or by his voluntary appearance in court in person or by attorney and submission to the authority of the court. An appearance is a proceeding in court, and must constitute a part of the record of the cause in which it is entered.” Indorsed upon the back of the complaint in the above action, which was one of ordinary adversary character filed in term, was the following signed by the defendants in vacation: “We hereby enter an appearance to the foregoing action and waive the issuing and service of process.” The court held that this did not amount to an appearance of said defendants. The statutes of Indiana are identical with those of Kansas as set out in this action. This case was twice before the supreme court of Indiana, and was very carefully and fully considered. From what we have already said, we are constrained to hold that there was no appearance by the defendants in any form recognized by law, and the court, therefore, had no jurisdiction to render any judgment against any of the defendants herein. But it is insisted that while the agreement as herein set out may. not technically constitute an appearance, still, the applicant is estopped by the terms of the agreement from setting up in this action that it was not an appearance. We do not Concur in that view of the case. Whether the agreement could have been made to have any legal effect whatever as between the parties, or in any other way, we need not and do not inquire ; we have only to deal with the agreement as a jurisdictional question affecting a public tribunal, and not as it may affect the private rights of the parties, or any merely private interest. It is not a case, we think, in which the doctrine of estoppel can in any manner be applied so as to affect a question of jurisdiction in the court below. We will merely add that, as Bradley, Wheeler & Co. were not parties to this agreement, it could not in any possible way affect them, even if we had held that such an agreement constituted an appearance. The judgment will therefore be reversed, and the cause remanded, with instructions that the motion of defendants contesting the jurisdiction be sustained. All the Judges concurring.	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The opinion of the court was delivered by Gar ver, J. : The judgment complained of in this case was rendered by the district court of Wyandotte county in an action brought by the defendants in error (plaintiffs below) against the plaintiff in error (defendant below) to recover for attorney’s fees alleged to be due and owing for professional legal services performed by the plaintiffs at the special instance and request of the defendant. The answer was a general denial. It is the first claimed that there was a misjoinder of parties plaintiff. This objection was made for the first time upon the trial. The evidence shows that Karnes and Krauthoff are the only persons interested in the money alleged to be due from the defendant. Holmes was not a member of the firm when the services were performed, and apparently has no concern in the result of the action. Any objection on this ground, however, was waived by the failure to make it at the proper time. A misjoinder or defect of parties plaintiff is waived unless it is taken advantage of by answer or demurrer. (Comm’rs of Lyon Co. v. Coman, 43 Kan. 676; Hurd v. Simpson, 47 id. 245.) The defendant further objects to the sufficiency of the petition, claiming that it does not state a cause of action, on the ground that it neither alleges the value of the services nor that the plaintiffs were licensed attorneys. The plaintiffs declared simply upon the common count, the indebitatus. It is not an easy matter to reconcile this form of pleading with the plain requirements of the code; but precedent and authority are too strong in its favor to admit of any discussion of it upon principle as an original proposition. The rule is well settled in this and other-states that, even under the code, when a special contract for services has been fully performed by the plaintiff, and nothing remains to be done except the payment of the money due from the defendant, the plaintiff may recover under the indebitatus count. (Meagher v. Morgan, 3 Kan. 372; Emslie v. City of Leavenworth, 20 id. 562; Allen v. Patterson, 7 N. Y. 476; Blizzard v. Applegate, 61 Ind. 368; Moore v. Gaus Mfg. Co., 113 Mo. 98.) Of course, if a timely motion therefor be made, the court could render a more particular and definite statement of the facts. In the absence of such motion or other seasonable objection, the petition must be held to be sufficient. A pleading must be vitally and essentially defective if any advantage can be taken thereof for the first time upon the trial. Another and more serious question arises upon the ruling of the court ip refusing to permit the defendant to show a special contract between the defendant and the plaintiffs fixing the amount of the fees for certain of the services. It was objected by the plaintiffs that the evidence was not admissible under the general denial; that, before such matter could be available to the defendant he múst specially allege it in his answer. This view was adopted by the court, and tlie evidence accordingly excluded. The court also refused to permit the defendant to amend his answer so as to conform it to the ruling of the court, except on the condition that he pay all costs in the case to that time. The defendant refused to comply with this condition, and the trial proceeded upon the theory adopted by the court. This ruling was erroneous. The petition averred, in a very general way, that the defendant was indebted to the plaintiffs in a certain sum on account of particular services alleged to have been performed for him. The plaintiffs, in effect, said to the defendant, "You owe us a certain sum for services in the C. case.” The defendant answered, "Ido not.” Here was joined an issue which was very simple, but it was very broad. There is nothing indicating whether the plaintiffs would rely, to prove the amount of the indebtedness, upon a special or upon an implied contract. If there was a special agreement, they could prove it to show what the defendant promised to pay and what they were entitled to recover. (Emslie v. City of Leavenworth, 20 Kan. 562; Bank of Columbia v. Patterson’s Adm’r, 7 Cranch, 299; Mansur v. Botts, 80 Mo. 651; Stafford v. Sibley, 17 So. Rep. [Ala.] 324.) If no special contract existed, the law implied a promise to pay the reasonable value of the services, and proof of such value would fix the amount of recovery. In either case, the allegations of the defendant’s indebtedness would be proven; but the amount thereof would be dependent upon the existence or non-existence of a special agreement concerning the fees. When the plaintiff may prove, under such pleadings, a special contract as evidence of the amount of the indebtedness, it is difficult to understand on what principle the defendant is debarred from a like privilege. Any facts directly connected with the transactions are pertinent to the issue, and are available to either party for the purpose of establishing the ultimate facts — the indebtedness and its amount. It seems very clear, too, that this can be done on the part of the defendant under the general issue. The rule is general that, under such issue, the defendant may introduce any evidence which directly tends to disprove the allegations of the petition. No new matter is brought in ; for it is only the defendant’s version of the same transaction which is relied upon by the plaintiff's. "Why should he be required to be more specific in statement than are the plaintiffs? As said by the supreme court in Parker v. Hays, 7 Kan. 412, when the plaintiff ‘ ‘ merely states an indebtedness without stating how it arose, he invites an issue upon whether there is an indebtedness, and an examination into that issue by the testimony; and this can be gone into by the defendant under a general denial.” See, also., Davis v. McCrocklin, 84 Kan. 218; Blizzard v. Applegate, 61 Ind. 368; Bond v. Corbett, 2 Minn. 248. Thus, it may be shown that no indebtedness exists for the reason that it has been paid. (Marley v. Smith, 4 Kan. 183.) It is equally within the scope of the pleadings for the defendant to show that he is not indebted in the amount alleged in the petition, for the reason that a less sum was expressly contracted for. In this case, the petition alleged that the defendant was indebted to the plaintiffs, among other things, in the sum of $250 for services performed in the trial of a certain lawsuit. On the trial, the plaintiffs proved and rested upon the reasonable value of the services. The defendant claimed and offered to show that it was specially agreed that the fee for the services in said action should be only $100. If the plaintiffs had introduced evidence tending to show that a fee of $250 had been expressly agreed upon for the services, it will certainly not be claimed that the defendant could not dispute that fact by showing that the contract fee was $100. The principle is the same, though the plaintiffs elected to pursue a different course upon the trial. The pleadings fixed the rights of the parties in this respect, even though the plaintiffs attempted on the trial to ignore the special contract. The rule is well settled that when the plaintiff sues, as in this case, upon the indebitatus, without specially stating the contract from which it arises, he may recover upon proof of either a special or an implied contract; but when it appears that there was a special contract fixing the amount or value of the services, such special contract affords the rule which determines the amount of the recovery. (Holmes v. Stummel, 24 Ill. 370; Pickard v. Bates, 38 id. 40; Merrill v. Railroad Co., 16 Wend. 588; Ludlow v. Dole, 62 N. Y. 617; Dermont v. Jones, 2 Wall. 1; Perkins v. Hart, 11 Wheat. 237, 252.) In the opinion in the case last cited the rule is thus stated : “For, although in the cases before stated, in which the special agreement has been executed or otherwise closed, a general indebitatus assumpsit may be maintained, it is nevertheless true that the special agreement may be given in evidence by the defendant for the purpose of lessening the quantum of damages to which the plaintiff is entitled.” That this may be inquired into under the general issue we .have no doubt. We are therefore of the opinion that the defendant should have been permitted to introduce the evidence offered, and that substantial error was committed by its rejection. The judgment will therefore be reversed, and the case will be remanded for a new trial. All the Judges concurring.	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The opinion of the court was delivered by Garver, J. : The defendants in error, Brown & Jackson, brought this action in the district court of Graham county to recover from School District No. 80 in said county the contract price for the building of a schoolhouse in said district. The petition alleged the making of a contract with the district board, and the construction in accordance therewith of a schoolhouse by defendants in error. The liability of the school district is the sole question presented by the record. Having only limited authority in a matter of this kind, the officers of a school district can only carry out the expressed will of the electors of the district. If they act -without such direction, or exceed the power conferred upon them, their action does not bind the district. They have no inherent power as a board to build a schoolhouse, or to create any district liability in a matter that is committed by the statute exclusively to the qualified voters of the district. (Gen. Stat. 1889, ¶5587.) This statute also confers upon the electors of a school district the exclusive right and power to select a site for the district schoolhouse. After the voters of a district, at a meeting duly called, have selected a site for the schoolhouse, have determined what kind of a house they will build, and have provided funds for that purpose, the district board, as mere agents, may carry out the will of the inhabitants of the district- so expressed. (Gen. Stat. 1889, ¶5614.) Where, when and how a schoolhouse shall be built, having been thus first decided at a district meeting, such determination becomes the measure of authority which the board may thereafter exercise in that matter. Any one dealing with the board is bound to take notice of the limitations of its authority. Hence, in order to base a recovery upon a contract entered into with a school board, such as alleged in this case, it must be shown that the contract was authorized by the voters of the district. (School District v. Perkins, 21 Kan. 536; Wilson v. School District, 32 N. H. 118.) Applying these rules to this case, we are unable to find in the record any evidence of authority in the district board to make the contract in question. The first district meeting of which we have any record was held February 26,1889, pursuant to a call by the board: At that meeting a certain site for a schoolhouse was selected, and it was agreed, to build a stone schoolhouse 19x30 feet in size. The site so selected was distant one mile south from the place where the board caused a schoolhouse to be erected. On March 15,1889, there was another district meeting, not shown to have been legally called and held, at which time it was determined to change the site from the place selected at the February meeting, and to locate the schoolhouse where it was afterward built. Another special meeting seems to have been held May 4, 1889, at which it was voted to change the site back to the first place selected. A majority of the voters were present at this meeting, all voting for the original site. We are not able to say from the record that either the March or the May meeting was legally called. Moreover, there is nothing in the record to show that, at either of these meetings, the board was instructed to proceed to the erection of a schoolhouse, or that any funds had been provided for that purpose. There is an intimation in portions of the record that, at some prior meeting, bonds had been voted for the erection of a schoolhouse, but there is no evidence of that fact. The district board, on April 6, 1889, let the contract to Brown & Jackson for the building of a schoolhouse on the site selected at the meeting held March 15. What this contract was the record does not disclose, except that after the work was done the board allowed their claim in the sum of \|399.65. What the plans of the schoolhouse were, or whether it was constructed in accordance therewith, does not appear. The building was completed in July, 1889, about the time of the annual district meeting. At the annual meeting in July, the treasurer and clerk, who had been active in making this contract, were succeeded in office by persons who were in favor of the other site. The new board refused to recognize any liability of the district under the contract made by the old board; hence this action. We think no legal liability has been shown. It is claimed that the evidence shows a subsequent ratification by an acceptance and use of the building by the district. The only evidence of this is that the district clerk called the annual meeting to be held at this building July 25, 1889. The inhabitants of the district assembled there, but, so far as their action is concerned, it shows a disaffirmance rather than a ratification of the action of the district board; for at this meeting a resolution was adopted expressly directing the board ‘ ‘ to make arrangements for a place to hold the next term of school.” There being no schoolhouse, schools had previously been held at different places, as arrangements therefor could be made with residents of Ühe district. The same course seems to have been pursued after the building of this house, and it was not used by the district for any purpose after the July meeting. We do not think it can be said from this that the acts of the board were ratified by the district. It appears that about May 1, 1889, the county attorney of Graham county began proceedings in the district court of that county, in the name of the state, to enjoin the district treasurer and clerk from paying out or expending any of the funds of said district for the erection of the schoolhouse contracted for with Brown & Jackson, alleging that the contract was unauthorized and void. In February, 1890, that case was dismissed by the court, for the reason that the plaintiff had failed to comply with a previous order of the court allowing an amendment of the petition, and the making of Brown & Jackson defendants. The proceedings in that case were pleaded by the defendants in error as res judicata as to the questions involved in this case, and as a conclusive determination of the validity of the contract. We do not think they can have that effect. The case was not tried upon its merits, neither was there identity of parties with the parties to this action. For the reason that the evidence failed to show that the district board was authorized by the electors of the district to make the contract on which this action was based, the judgment will be reversed, and the case remanded for a new trial. All the Judges concurring.	[ -107, -2, -4, -82, -102, 96, 122, -102, 81, -95, 101, 87, -19, -38, -100, 127, -45, 61, -48, 42, 70, -13, 19, -126, -76, -13, -33, -43, -71, 79, -12, -33, 72, 49, -62, 85, 102, 66, 69, -44, -114, -121, -86, -52, -47, -29, 48, 110, 50, 10, 33, 15, -13, 40, 24, -61, -24, 44, 89, 41, 65, -15, -100, -121, 109, 7, -79, -32, -102, -121, -24, 44, -104, 49, -125, -8, 123, -90, 6, -12, 13, -119, -119, -32, 102, 1, -84, -49, -12, -103, 14, -74, 61, -90, -106, 24, -30, 13, -74, -99, 117, 86, 7, 124, -25, -124, -101, 125, 5, -53, -12, 53, -113, 57, -110, 3, -17, 2, 49, 101, -49, -68, 93, 70, 18, 27, -38, -68 ]
The opinion of the court was delivered by Gakveb,, J. : No question is raised in this court as to the negligent setting out of the fire by the railway company on March 27. The principal contention of plaintiff in error is that the fire set out by the train on that day was not the proximate cause of the injury complained of, but that such injury was directly caused, on the following day, by the intervening agency of a high wind. This contention is thus stated in the brief of plaintiff in error : “If the Sunday fire was started by an engine, and had burned continuously until it reached plaintiff’s property, under the decisions of the supreme court of .this state there would be no question about the liability of the company; but the fire having been extinguished on Sunday evening, and the premises left in what was considered by those in a position to know a safe condition, and in such a condition that, but for the high wind the next day, the property of plaintiff would not have been destroyed, changes the case entirely. It is plain from the evidence and is settled by the findings, that if it had not been for the wind prevailing Monday morning sparks would not have escaped from the stacks across the burnt space and started a new fire in the standing grass.” We are unable to distinguish this case on principle from A. T. & S. F. Rld. Co. v. Stanford, 12 Kan. 354; A. T. & S. F. Rld. Co. v. Bales, 16 id. 252; and C. R. I. & P. Rly. Co. v. McBride, 54 id. 172. In those cases the supreme court fully and clearly discussed similar questions as to proximate and remote causes, and established precedents which inevitably lead us to but one conclusion. True, in neither of the cases referred to was there such an intermission in the progress of the fire as existed in this case — the burning there being, in a sense, continuous. Yet, in no such case is there a simultaneous burning. The fire is communicated from one object to another, whatever the size and nature of such objects may be, with some interval of time between the burning of the different objects. In dry prairie-grass and before a brisk wind, a fire may sweep over miles of territory in a very short time; or, again, if the conditions are not so favorable, it may linger and hesitate and almost die 'out, moving with dilatory steps until it makes a final destructive leap. When there is this succession of causes and effects, it is difficult to fix- any definite limit which shall mark the dividing line between causes which are proximate and those which are remote, as connected with sub sequent events. The distinction cannot be made by any mere reference to time or distance. In case a building is negligently set on fire, and the flames are thereby communicated to an adjoining one, the burning of the first is the immediate cause of the destruction of the second; yet, as is well settled, the negligent act by which the fire was communicated to the first must be held to be, in law, the proximate cause of the final effect — the burning of the second building. In such case, is it of any importance, in determining legal liability, that the first building was burning an hour, or six or more hours, before the fire was actually communicated to the second? Are the legal consequences which follow from the original wrongful act avoided by the efforts made by the wrong-doer, after the starting of the fire, to prevent its spreading? Is it a legal excuse or justification for the wrong-doer to say, that if the wind had not been blowing in a particular direction, or had not been blowing at all, the damage would not have been done? These and kindred questions must be answered in the negative. The main inquiry in all such cases is : Is the one who is charged with the original wrongful act responsible for the existence of the fire which caused the damage, and.was it a result which might have been foreseen, at the time of the commission of the negligent act, as its natural and probable consequence? What the answer to this inquiry should be is largely a question of fact, and the trier of the facts must say what are proximate and what are remote causes in view of the peculiar circumstances of each case. (Railway Co. v. Kellogg, 94 U. S. 469; Fent v. Railway Co., 59 Ill. 349; Railroad Co. v. Hope, 80 Pa. St. 373.) Counsel for plaintiff in error lay much stress upon the fact found by the jury in the seventh special finding of facts, that the section foreman and others who were engaged in putting out the fire thought that it was entirely safe to leave the burning stacks on the evening of the 27th, and reasonably supposed there was no danger of the fire being again communicated to the prairie. The fact is, however, it was not safe, as is shown by what occurred the next day, when the fire was readily carried from the burning stacks to the prairie-grass by a wind, which was neither unusual nor extraordinary. Had such wind sprung up immediately after the fire, except that in the stacks, had been extinguished, and had the flames been thereby again kindled in the dry grass, there would be little room for any controversy about intervening causes. By the fire being lodged and detained for a time in the stacks, there was a change or break in the succession of events, but was there the intervention of a new and independent cause ? Liability does not arise in this case from subsequent negligent watch or care. The negligence consisted in letting the fire escape in the first place from the engine. Neither is it a question as to what would reasonably have been foreseen as the natural and probable consequence of. leaving the fire in the burning stacks. That has nothing to do with a liability which exists, if at all, because of the first wrongful act of the company negligently setting out the fire. Such liability cannot be affected by subsequent efforts to restrain and control the devastating force thus let loose. It was for the jury to say whether it was reasonable to expect, as the natural and probable consequence of setting a fire in the dry grass, that it would sweep over the adjoining country with more or less rapidity, consuming what came in its way, and yielding to the influences of the winds. which were then usual and common. Though the subduing of the fire and its stopping in the stacks 16 or 17 hours were events not foreseen, jet it is not unreasonable to say it could have been foreseen, as the natural and probable consequence of setting the fire, that it would burn over and devastate this very territory. The jury in this case have found that it was only a ‘ ‘ medium strong ’ ’ wind which carried the fire from the stacks into the grass. As courts may take judicial notice of what is within the experience and knowledge of all men, it might probably be said, without calling for evidence of the fact, that “medium strong ” winds are among the natural and reasonable occurrences in western Kansas in the month of March. However that may be, the evidence clearly shows that the wind on March 28,1892, was not unusual nor extraordinary in that locality. One setting out a fire on the prairie is bound to take into consideration any such merely natural occurrences. If the winds did not fan the flames and sweep them with such destructive and often uncontrollable force, prairie fires would not leave so many blackened ruins in their paths. But it cannot be said in such cases, that a wind which is neither unusual nor extraordinary is an independent intervening cause of the spread of the flames. It is simply a natural force which is exerted upon almost every fire, as a contributing cause, to the doing of more or less damage. When two causes combine to produce an injury, both of which are proximate in their character, the one being the result of culpable negligence and the other an occurrence for which neither party is responsible, the, negligent party is liable, if the injury would not have been sustained but for such negligence. If there had been the inter vention of such an extraordinary force as a whirlwind, as was the case in Marvin v. Railway Co., 79 Wis. 140, a different question would be presented. The independent intermediate agency which may become the in*oximate cause, and thus stand between the injurious results and a prior wrongful act, must also be a force whose intervention or contribution in bringing about the results could not have been foreseen by the exercise of reasonable diligence on the part of the wrongdoer. This cannot be said as to such a wind as occurred in this instance. Upon principle and authority, we think the negligent setting out of the fire by the railroad company on the 27th must be held to be the proximate cause of the plaintiff's loss. In addition to the cases cited and commented upon by the supreme court in the Stanford and McBride cases which bear upon this question, we refer to the following: Poeppers v. Railway Co., 67 Mo. 715; Railway Co. v. Nitsche, 126 Ind. 229; Railway Co. v. Williams, 131 id. 30; Railway Co. v. Kellogg, 94 U. S. 469. The facts in Railway Co. v. Williams and Railway Co. v. Nitsche are similar to those in this case. In each of those cases, which were actions for damages sustained by fires negligently set out by the railway company, several days intervened between the time when the fire was set out and the time when the damage was done ; the fire in the meantime having been subdued and extinguished, as was supposed, and again breaking out. In the case of Nitsche, the fire was set out on the right of way of the railway company on July 19, and was under control and supposed to have been extinguished several times thereafter, the smouldering fire being as often fanned into flames by the wind, until, on August 2, it again broke out and burned the property of plaintiff. In both cases, the wrongful act of the railway company in permitting the fire first to escape was held to be the proximate cause of the final injury. There, as in this case, had it not been for the wind, the fire, probably, would not have again broken out after it had been subdued, and on that ground it was contended that the wind was an intervening agency and the proximate cause of the plaintiff’s damage. Considering this claim, it is said, in the opinion in Railway Co. v. Nitsche: “It is difficult, if not impossible, to find a substantial reason for holding that an ordinary wind is an independent intervening agency ; for what occurs in the usual course of nature, and is not abnormal or extraordinary, cannot be regarded as an independent agency. . . / Extraordinary winds may justly be regarded as independent intervening agencies; but not so winds which are usual, and prevail without disturbing ' the normal conditions of nature. One who is himself without fault has, in justice and common fairness, a right to recover from one who has caused him a loss by a tortious act, although an ordinary natural occurrence entered into the chain of events which culminated in the loss. It is, in truth, impossible to conceive a case wherein loss by fire can happen wholly independent of natural causes. Fire will not burn without air, and yet no one will be bold enough to assert that, because this natural agency enters into every conflagration, therefore the wrongdoer is absolved from responsibility.” It is next contended that the plaintiff was guilty of contributory negligence and, therefore, not entitled to recover, even admitting that the negligence of the railway company was the proximate cause of his loss. We think this contention cannot be maintained. It is founded upon the mere fact that the plaintiff had not protected his premises by a sufficient fire-guard. The evidence shows that the plaintiff lived about four miles from the railroad, with intervening public highways and cultivated farms. He had provided some protection by fire-guards around his farm, but nothing that was adequate. While it is the duty of one to use reasonable efforts to prevent or lessen an injury, even in case it is threatened because of the wrongful act of another, no such duty is imposed to protect one from the effects of the wrongful acts of others which are only possible but are not probable or imminent. In this case, as in most cases, the existence of contributory negligence on the part of the plaintiff was a fact to be determined by the jury, and such determination is conclusive on this court. The omission to provide adequate fire-guards cannot, as a matter of law, be said to have been negligence contributing to the injury. (Mo. Pac. Rly. Co. v. Kincaid, 29 Kan. 654; Ho. Pac. Rly. Co. v. Cornell, 30 id. 35; Ft. S. W. & W. Rly. Co. v. Tubbs, 47 id. 630; U. P. Rly. Co. v. Eddy, ante, p. 291, 42 Pac. Rep. 413.) Complaint is also made of various rulings of the court in the admission and the refusal of evidence, and of the instructions to the jury. We do not deem it necessary to lengthen this opinion by a detailed consideration of those objections. We think the instructions of the court fully and with substantial correctness gave the jury the rules of law applicable to the case. There was no substantial dispute as to any of the material facts, and the result would probably not have been changed had all the rulings of the court upon the admission of evidence been in favor of the plaintiff in error. The judgment is affirmed. All the Judges concurring.	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The opinion of the court was delivered by Gilkeson, P-. J. : Very many assignments of error are set out in the brief of plaintiff in error, only one of which, we think, demands our attention, it being the only one to which the attention of the trial court was called upon the motion for new trial, viz., “That the court erred in refusing the plaintiff a lien on the mortgaged premises.” All other errors committed by the trial court were in favor of the plaintiff in error, and of them he cannot be heard to complain. The allegations of the petition are : That on the 1st day of August, 1885, William 0. Gilliland and Sallie Gilliland made, executed and delivered to the Travelers’ Insurance Company their certain promissory note for the sum of $1,100, and to secure the payment of the same, on said date, made, executed and delivered to said insurance company their mortgage .on certain lands; -that said mortgage was duly recorded; that before the maturity of said note, the payee, by indorsement and delivery, sold, transferred, assigned and delivered the said note and mortgage to the plaintiff, whereby he became, and now is, the lawful owner and holder thereof. A copy of the note and mortgage are attached to the petition, and upon the mortgage ap pears a written assignment thereof by one G. W. Carpenter to the plaintiff. There are no indorsements of any kind upon the note. The defendants William C. Gilland and Sallie Gilliland, under a verified answer, deny each and every allegation and averment in the petition, except such as are in said answer expressly admitted. And they deny, specifically, (1) that the plaintiff has any interest in the note or mortgage, but if he has, it was acquired after the maturity of the note ; (2) that the note and mortgage were never delivered to the Travelers’ Insurance Company ; (3) that there was no consideration for the note ; and (4) that the insurance company never indorsed, sold, assigned or delivered said note ; and they admit the making of the note. The plaintiff, for his reply, files a general denial of every allegation contained in said answer inconsistent with the claims in his petition. As to the defense made by defendant Robert June, it need not now be considered. It is well established that the plaintiff is not entitled to recover upon any other basis or cause of action than that alleged in his petition, nor can a party allege one thing and support it by proof of an entirely different state of facts. The pleadings in this case put in issue the assignment of the note and mortgage, by general and special denial, the interest of the plaintiff therein and ownership thereof, their transfer by indorsement, assignment, delivery or -otherwise by the payee, and the consideration of the note. These are material allegations which must be supported by proof, to enable the plaintiff to maintain his action. Have they been proven? We think not. On the contrary, we think there is a total failure of proof upon all of them, and some positively disproven. As to the assignment, “The note and mortgage run to the Travelers’ Insur anee Company” : Is there any evidence that the insurace company ever transferred them to any one? We has’e been unable to discover it.- In fact, it is positively shown that they refused to' have anything to do with it. True, there is an assignment upon the mortgage by one G. W. Carpenter of all bus right, title and interest therein to the plaintiff. But what right, title or interest did he have in it? None. Then he certainly did not transfer any. ^Did the Travelers’ Insurance Company transfer it to him? We have failed to find any testimony upon this point. It is conceded that this G. W. Carpenter is the same person that Gilliland applied to for^a loan. He was then his agent for a specific purpose. He had no interest or ownership in these instruments'; no right or authority to transfer or do any other act concerning them, except that which was strictly within the scope of his agency, viz. : To deliver them to the payee upon receipt of the money, and, when they were refused, then to return them to the mortgagors ; not to hold them as a security for a personal debt existing between him and the makers. But it is claimed by plaintiff in error that this note and mortgage were transferred to him by T. C. Henry & Co., agents of the Travelers’ Insurance Company. There is not a scintilla of evidence to sustain any such claim, or that T. C. Henry & Co. ever had any title to this mortgage and note, or that they ever advanced any money thereon or had any right thereunder. The testimony clearly establishes the fact that, if any money was advanced, it was the individual money of said G. W. Carpenter, and he alone, in his individual capacity, assigned (or attempted to) this mortgage. We think it is clearly shown that plaintiff, Bailey, was not the owner, nor had any interest in these instruments. As to tlie delivery, tlie testimony shows positively that they never were delivered to the mortgagee. On the contrary, they were refused. The only testimony upon this point is that of Mr. Carpenter, viz. : “1 submitted the matter to the Travelers’ Insurance Company, and, because of the fact of the title not being perfected in the parties, they refused to consummate the loan. I continued to hold it for security for the advance mentioned.” The mere fact that the Gillilands placed these instruments in the hands of G. W. Carpenter, their agent, for the specific purpose of having them delivered to the Travelers’ Insurance Company upon the receipt of the consideration, does not constitute a delivery of them to the insurance company, even if the company had actually had manual possession thereof, without an acceptance on its part, this would not make the note or mortgage valid. But when, on the contrary, it is established beyond contradiction that it did not accept, but repudiated them, the note and mortgage never became valid. Not only a delivery but an acceptance is necessary to give life to them. A delivery and acceptance of the mortgage are essential to its validity. If not delivered direct to the mortgagee or his agent, but to a third party, not authorized to act for him, it is necessary to show subsequent acceptance of it by the mortgagee. It is not shown that the mortgagee ever received the mortgage or the note ; that it or an authorized agent was present at the time of the execution; that it afterward consented to it; that the mortgage was delivered to another person for it; that it requested the mortgagors to execute it, nor that it ever claimed or accepted any advantage therefrom. It has been repeatedly held that “A note and mortgage placed in the hands of a third person, to be delivered to the mortgagee upon the happening of, a Pertain event, and delivered by him without authority, without waiting for such event, was invalid, and could not be enforced, even by a bona fide holder for Value. There is in such a case no delivery of the note and mortgage, and they never had any’legal existence. A mortgage without consideration, deposited to await the performance of conditions which would make a consideration, cannot be made operative by fraudulent delivery before the performance of the conditions without the mortgagor’s consent. The mortgage in such case never became operative at all; it is void from the beginning.” (Powell v. Conant, 33 Mich. 396; Andrews v. Thayer, 30 Wis. 228; Burson v. Huntington, 21 Mich. 415; Goodwin v. Owen, 55 Ind. 243.) Does not the case at bar come /-strictly within the rule last above cited? We think it does, and is much stronger. In this case, the mortgage and note were not delivered to the mortgagee ; it is not claiming under them, but they were delivered to a stranger by a stranger. Upon what theory the plaintiff in error can claim to be entitled to a lien upon the land in controversy under the mortgage declared upon, we have been unable to discover. . In passing, we might add that, the plaintiff in error, in his brief, complains of the court for not rendering judgment in his favor for a larger sum — viz., for the $200 claimed to be advanced by Carpenter to Gilliland. This complaint is clearly an afterthought, not raised in the court below, nor called to its attention upon motion for new trial, and cannot be raised at this time in this court. The only relief asked for in the motion for new trial was: "That the court vacate its findings refusing the plaintiff a lien upon the real estate.” The judgment must be affirmed. All the Judges concurring.	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The opinion of the court was delivered by Clark, J. : About the 1st of March, 1891, a verbal contract was entered into between one Henry Glodfelty and the plaintiff in error, J. C. Macy, whereby the former agreed to work for the latter on his farm in Osborne county for a term of nine months, at the stipulated wages of $17 per month. Glodfelty went to work under this contract on March. 4, and remained with Mr. Macy until July 8, and then, without any sufficient reason therefor, and over Macy’s objection, quit, and refused further to comply with- the terms of his contract. Glodfelty was a minor stepson of C. W. Peach, the defendant-in error, and the latter brought an action before a justice of the peace to recover the balance of the wages claimed to be due his stepson. The case was subsequently taken to the district court, where amended bills of particulars were filed by both parties, and a trial was duly had before the court, a jury being waived, resulting in a finding in favor of the plaintiff for the amount claimed by him, "less the damages sustained by the defendant, in the sum of $18.69, to wit: That plaintiff should recover of the defendant tlie sum of $45.26; the damages allowed being the difference between the per diem paid the employee, Glodfelty, and $2 per day, the amount per diem the court considered a proper compensation for which additional help could be employed as needed to take the place of said employee during harvest.” The defendant excepted to the finding of the court, filed his motion for a new trial, setting forth all the statutory grounds therefor, which was overruled, the defendant duly excepting, and judgment was rendered in favor of the plaintiff for $45.26. The defendant seeks a reversal of this judgment. The only assignment of error to which particular attention is called by counsel is that the court erred in its finding as to the damages which the defendant below sustained through the breach of the contract by Glodfelty, and it is claimed that, under the evidence, the plaintiff in error was entitled to damages under his counter-claim, and that there was no evidence in the case to warrant the finding of the damages that were assessed by the trial court as having been sustained by the plaintiff in error. In his counter-claim the defendant alleged the breach of the contract, and that the defendant was unable to get help to take the place of Glodfelty, and could not therefore get his work done, wheat harvested, nor corn properly tilled, nor stock properly cared for, whereby he was damaged in the sum of $500. The defendant in error claims that, as this action was originally brought before a justice of the peace, the district court on appeal had no jurisdiction of this.counter-claim, it exceeding the sum of $300. Had this objection been interposed in the trial court, the cases of Ball v. Biggam, 43 Kan. 327, and Wagstaff v. Challiss, 31 id. 212, would be authorities supporting such contention ; but as no objection was there made, the defendant in error cannot be permitted in this court for the first time to object to the jurisdiction of the trial court to hear and determine such counter-claim. (Gregg v.Garverick, 33 Kan. 190.) Did the court err in refusing to allow the defendant damages under his counter-claim ? In Walroth v. Whittekind, 26 Kan. 482, it is said that “ damages recoverable upon breach of contract are only those damages which are the direct and proximate result of the wrong complained of. Damages which are remote and speculative cannot be recovered.” While the defendant may have suffered loss by reason of Glodfelty’s misconduct, still it must be remembered that the law does not hold one liable for all the consequences that may follow the breach of his contract. If it were so, his liability would be without a limit, for it would continue as far as the consequences of his act could be traced. The law wisely limits liability to the direct and immediate effects of the breach of a contract. The losses set up in defendant’s counter-claim are not of this character. They may have resulted remotely from the fact that Glodfelty failed to remain with the plaintiff in error as a farm-hand for the full period of nine months, but they cannot be said to be the natural and proximate consequence of the breach of the contract of employment. (Fuller v. Curtis, 100 Ind. 237; Jackson v. Hall, 84 N. C. 489; McDaniel v. Crabtree, 21 Ark. 431; Jackson v. Mathews, 5 Kan. 118.) In support'of the contention of plaintiff in error that the court erred in assessing his damages, our attention has been called to the case of Houser v. Pearce, 13 Kan. 104, in which the plaintiff recovered a judgment for damages for breach of a specific contract to cut, bind and stack certain oats, and the supreme court held that if the plaintiff, after using a.ll reasonable precaution, lost his crop by reason solely of the failure of the defendants to perform their contract, he was clearly entitled to recover the amount of such loss ; and as the record did not include the evidence, the court held that the presumption was that the instruction given of which complaint was made was warranted by the evidence. There is, however, quite a noticeable distinction between that case and this one. Here, the contract between the parties was not made with any special reference to the harvesting of the defendant’s wheat crop, nor to the cultivation of any particular field of growing corn ; but, on the contrary, it is fair to presume that the work expected to be performed by him was general in its nature, such as is usually required of a farm-hand, and it cannot fairly be supposed that the damages alleged in the counter-claim were within the contemplation of the parties to this contract when fit was executed, nor could such damages naturally be expected'to follow a violation of the contract. The evidence in support of the damages sustained by the defendant below, as alleged in his bill of particulars, is very unsatisfactory. Instead of being recitals of fact, the testimony of the several witnesses amounts only to expressions of opinion as to the damages which the defendant sustained, and was clearly incompetent. But we do not think the defendant below was entitled to recover the damages alleged by him in his counter-claim. In Peters v. Whitney, 23 Barb. 24, this identical question was before the court, and it was there held that, “in an action for the breach of a contract for work and labor to be done upon a farm, evidence of damage occurring to the plaintiff’s crops in consequence of the defend ant’s leaving his service is inadmissible. The legal measure of damages in such cases is the difference qetween the wages agreed to be paid to the defendant and the price the plaintiff was obliged to pay for labor to supply his place.” In Riech v. Bolch, 68 Iowa, 526, it is said that, “where one employed by a farmer for a given term abandons his employer before the end of the term in the midst of haying, the damages sustained by the employer in the loss of hay are too remote to be recovered in an action for a violation of the contract.” In that case, the defendant offered to prove that, when plaintiff left his service, he had a large quantity of hay in the shock, and that he had a quantity of uncut hay in the field, and that he was unable to employ other help to save such hay, and that it was lost in consequence of plaintiff’s refusal to continue in hi^service during the remainder of the term of his employment; and also offered to prove the value of the hay at the time the plaintiff quit his services. This evidence was excluded by the district court, on the ground that it did not afford the proper measure of damages. The supreme court, in sustaining this ruling, held that “it cannot be said that the injury complained of is the natural and proximate consequence of plaintiff’s breach of the contract.” In the case of Houser v. Pearce, supra, the trial court refused an instruction to the jury that the measure of damages was the difference between the contract price and what it would have cost to have had the work done by others, and the supreme court, speaking through Mr. Justice Brewer, says that “this instruction states what would perhaps be the ordinary rule for the measure of damages.” This is the rule laid down in Peters v. Whitney, supra, which the trial court evidently sought to apply ; but the rec orcl, as stated by plaintiff in error, is entirely silent as to the amount which would probably be necessary to pay for additional help to take the place of Glodfelty during harvest, except that, after the latter left Macy, he was employed by Mr. Smith at $1.25 a day; but whether the court erred in estimating the damages of the plaintiff "in error in this respect is immaterial, as any error therein inured to the benefit of the plaintiff in error. "We think, from an examination of the entire record, that the plaintiff in error has failed to point out any prejudicial error therein, and that the judgment should be affirmed. All the Judges concurring.	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The opinion of the court was delivered by Johnson, P. J. : On the 14th day of July, 1890, M. P. Aiken & Co., grain commission merchants of Chicago, 111., commenced an action in the district court of Pawnee county, Kansas, against J. A. Franz, to recover the amount alleged to be due to plaintiffs for overdrafts and commission on the sale of grain consigned by defendant to .plaintiffs, for sale on the market at Chicago, 111. The petition and amended petition of plaintiffs set out the contract between the parties for the shipment and sale of grain, and the honoring of drafts attached to bills of lading on each shipment, and there is attached an itemized statement of shipments, containing a description of the car, date of the receipt, date of sale, freight, quantity, price, amount, charges on freight, inspection and weight, and commission, the amount of cash paid on each draft and amount received on each sale, with a statement of balance due plaintiffs. To this petition the defendant in answer denies all the allegations of the petition, except such as are therein specifically admitted. He admits and states as follows : “Defendant admits that he shipped grain (wheat and rye) to plaintiffs during the period mentioned in the petition filed herein, and that plaintiffs were to receive the sum of 1 cent' per bushel for handling and selling the same, and that defendant was to pay the expenses necessarily incurred in the shipment thereof, but says that this is all he was to pay plaintiffs. Defendant further says, that the contract between plaintiffs and defendant was, that defendant should ship the plaintiffs wheat and rye from Larned, Ivan., to plaintiffs at Chicago, 111.; was to receive the highest market price for the same ; was to notify the plaintiffs immediately after the shipment from Larned of the kind and quantity of grain, and was allowed permission to draw on the plaintiffs for an amount equal to 90 per cent, of the net value of each amount so shipped, according to the highest market price at Chicago, 111. On the other hand, the plaintiffs were to receive the sum of 1 cent per bushel for handling and selling the same ; were to inform the defendant of the state of the market, and, if anything was unsatisfactory in regard to the shipping, quality, amount of same claimed by defendant from plaintiffs, they were to notify the defendant immediately. Defendant further says, that in pursuance of the provisions of said contract defendant was induced to and did ship plaintiffs a large amount of grain (wheat and rye) of the kind and quality and price as set forth in a certain instrument of writing hereto attached, made a part hereof, and marked ‘Exhibit A’ ; that in pursuance of said contract defendant drew on plaintiffs for the several amounts specified in said ‘Exhibit A,’ aggregating in the sum of $3,659 ; that there is now due and unpaid this defendant from the plaintiffs the sum of $886.33, all of which is shown by said ‘Exhibit A,’ all of which is just and correct, together with the interest thereon from the 1st day of November, 1889.” The remainder of the answer charges the plaintiffs with misrepresentation and fraud in procuring the contract, and for violation of the contract, and for wrongfully converting grain to their own use, and refusing to account to the defendant for the manner in which it was disposed of. To this answer is attached an itemized statement of account between the parties in the shipment and sale of grain, showing the date of each shipment, the number of car, number of bushels, price per bushel, kind of grain, freight charges, weighing and commission, the amount of drafts on each shipment, and the balance due to the defendant. This answer is verified as follows : “ J. A. Franz, of lawful age, being first duly sworn according to law, deposes and says : That he is the defendant in the above-entitled cause; that he has read the foregoing answer and knows the contents thereof; that the allegations therein contained are true ; that the items in the annexed account marked ‘ Exhibit A’ are just, correct, and a balance of $886.33, as shown thereby, remains due and unpaid.” To this answer the plaintiffs filed a general denial. At the April', 1891, term of the court this cause was called for trial, and the parties announced themselves ready for trial, and a jury was duly impaneled and sworn to try the cause; and thereupon the attorneys for the defendant moved the court for a judgment against the plaintiffs on the pleadings, and the court, on motion of the plaintiffs’ attorney, granted leave to plaintiffs to verify their reply. Thereupon, the plaintiffs not being present, the attorney for plaintiffs verified his reply, as follows : “State of Kansas, Pavonee County, ss. “Comes now Henry W. Scott, who, of lawful age, being first duly sworn, upon his oath deposes and states, that he is one of the attorneys in the above-entitled cause ; that plaintiff is a non-resident, not residing within the county or state : and that the foregoing allegations are true, to the best of his information and belief. H. W. Scott. “ Subscribed and sworn to before me, this 10th day of April, 1891. J. B. Gilicison, Clerk District Court.” After the verification of the reply the attorneys for defendant renewed their motion for judgment on the pleadings, on grounds that the account attached to defendant’s answer was admitted by the reply; that .there was due from the plaintiffs to the defendant the amount so admitted, which motion was sustained by the court, and plaintiffs duly excepted to the ruling of the court at the time ; and thereupon the court discharged the jury and rendered a judgment upon the pleadings in favor of the defendant and against the plaintiffs for the sum alleged in the answer to be due on the itemized statement attached to the answer. Motion for a new trial was filed by plaintiffs, overruled, and excepted to, and case made by plaintiffs. There is but one question involved in this case, and that is, did the court err in sustaining the objection of the defendant to the introduction of any evidence by plaintiffs to support their cause of action, and rendering judgment for the defendant on the pleadings? or, in other words, was the allegation in the answer and counterclaim, with the itemized statement attached thereto, and verified in the manner in which it was, such that it must be taken as true, unless denial thereto be verified by the oath of the plaintiffs? The petition sets out the agreement between the parties, and the transactions under the agreement', with an itemized statement of the account, duly verified as true, and shows a balance due to the plaintiffs ; but their allegations are partly controverted by the defendant, and he then sets up what he claims to have been the agreement between the parties, substantially as stated by the plaintiffs, but alleges a different result growing out of the performance of the agreement; and also sets out an itemized statement of the account as a counterclaim, and shows by such itemized statement of account that there is a balance due him by reason of the contract and transactions thereunder, and this answer and counterclaim are duly verified as true, and defendant specifically states in his affidavit, “that the items in the annexed account marked ‘Exhibit A’ are just and correct, and a balance of $886.33, as shown thereby,'remains due and unpaid.” We think the answer and counterclaim, with the itemized account, verified as it was, contains such allegations as must be taken as true, unless the denial thereof be verified by the affidavit of the plaintiffs, their agent, or attorney. (Civil Code, §108.) This answer was filed on the 30th day of January, 1891, and the plaintiffs in a few days thereafter filed an unverified reply. The case stood in this condition until the next term of the court, which occurred about two months thereafter, and when the case was called for trial each party announced itself ready to proceed, and, after the impaneling of a jury, the plaintiffs then asked to be allowed to verify their reply. Leave being granted, the attorney, in the absence of plaintiffs, made the verification of the reply. The question then arises whether or not this verification was a sufficient denial of the itemized account to require the defendant to introduce evidence to prove the same. The reply to the answer of the defendant denies' each and every material allegation therein contained, is signed by the attorneys for the plaintiffs, and one of the attorneys for plaintiffs (they being non-residents of the state and being absent from the court) verified the reply as true, to the best of his information and belief. Was this a sufficient verification, under section 114 of the code of civil procedure? This section of the code provides : ‘ ‘ It can be made by the agent or attorney only: First, When the facts are within the personal knowledge of the agent or attorney. ,. . . Fourth, When the party is not a resident of, or is absent from, the county.” The affidavit of the plaintiffs’ attorney is insufficient as a verification of the reply, for it does not in any manner show or attempt to show that the attorney had any personal knowledge of the facts set out or involved in the pleadings. We do not think this attempted verification -was such as to put in issue the correctness of the defendant’s counterclaim; the plaintiffs having failed to deny the truth of the counterclaim under oath, it then stood as admitted. This being so, we must then examine the statement of account and see whether it authorized the court to render the judgment it did. We do not think the court should have rendered judgment for the amount shown by the footing of this account. The court should have examined the account which was admitted as true, and rendered judgment only in accordance with what the account showed on its face. The second item in the account, of date of October 5, charges the plaintiffs with one car of wheat, at $380, but does not show anything in relation to what was done with this shipment ; does not give the plaintiffs credit for freight, weighing, inspection, commission, or the draft attached to the bill of lading. This item is so uncertain and indefinite that we do not think it should have been allowed as a charge against the plaintiffs. We must take the statement of account in connection with the allegations of the defendant’s answer, which set it up as a counterclaim. The answer alleges that the defendant was to pay all expenses necessarily incurred in the shipment, was to pay plaintiffs a commission of 1 cent per bushel for handling grain at Chicago, and was allowed to draw on each shipment for 90 per cent, of the highest market price at Chi cago. The item for $380 should have beeu deducted from the footing of the account, and judgment rendered fox the remainder only. Therefore the judgment of the district court will be modified by reducing the same to the sum of $467.17, together with. 6 per cent, per annum thereon from the 10th day-of April, 1891, and it is ordered that the costs in this court be equally divided. All the Judges concurring.	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The opinion of the court was delivered by Harman, C.: Eugene R. McClain was convicted by a jury of the offense of aggravated robbery. His motion for new trial was denied, he was sentenced and now appeals. Grover’s Smokehouse, 1020 North Topeka Avenue, Topeka, was the scene of the robbery which occurred the night of Sunday, December 17, 1972. Present in the establishment were the assistant manager and two other employees. The employees were closing the place and the assistant manager was counting the evening’s receipts. At about 11:00 p. m. a fourth employee, who had been outside listening to tapes in an automobile, entered the back door of Grover’s followed by two black males armed with pistols. The pair announced a holdup. One of them was wearing an orange ski mask covering his face and the other had a cut up pillow case over his head. The assistant manager was forced to hand over the money to the robbers. Approximately $2,700 in seven money bags was taken, consisting of three days’ receipts plus currency and change. The robbers then herded the four employees into the walk-in cooler in the building and departed. After a few minutes in the cooler the employees emerged and called the owner, who in turn notified the police of the holdup. One of the employees discovered that her billfold had been taken from her purse. Patrol officers Crenshaw and Cloutier were among several policemen who responded to the reported robbery. Meanwhile a woman reported to police that two black males were prowling in her back yard at 1125 North Jackson (about two blocks from Grover’s). This report was relayed to officers Crenshaw and Cloutier who proceeded to that area. Cloutier left the police car and Crenshaw drove down the alley west of Jackson using his searchlight. Crenshaw saw appellant getting out of a pickup truck parked in the alley near a garage. The officer placed appellant under arrest. A few minutes later another officer arrested Robert McClelland at Kansas avenue and Morse street., which was about three blocks away. The pickup truck from which appellant was alighting belonged to McClelland’s father, who had given Robert permission to use the truck that night. A search of the immediate area where appellant was arrested revealed two loaded pistols, some clothing and seven money bags containing money corresponding to that taken at Grover’s. The clothing consisted of a pair of coveralls and a blue sweatshirt. The billfold taken from the employee’s purse was found in a pocket of the blue sweatshirt. The following morning while they were still in jail appellant’s clothing and that worn by McClelland was taken from them and sent in plastic bags to the Kansas Rureau of Investigation laboratory. At trial Ronald Jones, a forensic chemist with the KBI, testified he had vacuumed the interior of the blue sweatshirt with a vacuum cleaner specially designed to extract and retain foreign matter; he repeated the procedure on the exterior of appellant’s shirt; the fibres and debris thus obtained were then microscopically compared and five different fibres and one type of metal fragment were determined to be common to the blue sweatshirt and the shirt removed from appellant. Jones testified there was a very significant probability the sweatshirt had been worn over appellant’s shirt. He further testified the probability of finding five foreign common fibers on two items of clothing that had not been in contact were about one in 3,200,000; that when the metal fragment is added the probability goes up to one in 65,000,000. The comparison was repeated on the coveralls and McClelland’s clothing and the result was the finding of nine fibers common to both. Appellant testified in his own behalf. The substance of his testimony was that on the night in question he was walking in the north Topeka area when he was given a ride by two Negro males in a pickup truck; they headed in a northerly direction for a couple of blocks when the police helicopter appeared overhead; the driver went into an alley, stopped the truck and left; appellant became scared and ran but then returned to the truck; he noticed two pistols in the truck; for fear of being implicated he threw the pistols over the truck and then waited for the police; he did not assist or participate in the robbery of Grover’s Smokehouse. Upon appeal appellant does not challenge the sufficiency of the evidence to convict him but asserts three trial errors. His first point on appeal is: “It was improper to permit any expert opinion evidence concerning fiber comparisons from Ron Jones because his qualifications were lacking in that subject.” As indicated, Mr. Jones testified concerning his microscopic examination of fibers and a metal fragment which were found to be common to the exterior of the shirt worn by appellant at the time of his arrest and the interior of the blue sweatshirt containing the purloined billfold. Tire witness’ employment was that of forensic chemist for the KBI at its laboratory in Topeka. He had a bachelor’s and master’s degree in chemistry and had been a high school chemistry teacher for three years. For four years he was employed as a chemical engineer in the aircraft industry. He had worked at the laboratory of the Wichita police department for two years. There he become involved in fiber analysis and comparison. His fiber comparisons were generally checked by his supervisor but there was never any disagreement with his conclusions. He began working for the KBI laboratory in February, 1971. Since his employment as a KBI forensic chemist he had done fiber comparison and had received on-the-job training there in that area and while at the Wichita police laboratory as well. He had been involved in microscopic comparisons for approximately thirteen years. At trial Mr. Jones testified he examined the fibers and the metal fragments under high power magnification comparison microscopes. He also used two different wave lengths of light in comparing the fibers for color. Besides a brass fragment he isolated a red cotton fiber, a blue cotton fiber, a dark green synthetic fiber, a yellow synthetic fiber and a red-orange cellulose-type fiber on each garment. The pairs of fibers and fragments were indistinguishable from each other. In making his examination he took into account the length and diameter of the fibers as well as striations appearing on some of them. His testimony was based on the premise there are at least twenty different fibers commonly used in clothing manufacture with an almost infinite number of varying shades of colors. Prior to any testimony by the witness as to probabilities the following colloquy occurred: “Q. (By Mr. Morrison) Sir, based upon your reading, your experience and other background in this area, do you have an opinion as to the approximate probability of six fibers being found on one garment and also being found on another garment? “Mr. Meinecke: Object to the form of the question, Your Honor. It assumes something not in evidence. We have got five fibers here. “Mr. Mo/rison: Okay, let me clarify that question then. “Q. (By Mr. Morrison) Five fibers and brass fragments? “A. Yes, I have an opinion. “Q. What is that opinion, sir? “Mr. Meinecke: Your Honor, I am going to object on the competency of the evidence and the qualifications of the witness. The Court: All right. Would you inquire what would be the basis in his experience and training for this opinion? “Q. (By Mr. Morrison) What would be the basis for your opinion, sir? “A. Well, it would be based on the relative occurrence of the different types of fibers in clothing garments. Clothing is made of approximately 20 different types of fibers.” The foregoing objection is the only one revealed in the record of trial pertaining to Mr. Jones’ testimony. After it was made and in effect sustained by the trial court the witness went ahead with further explanation as to his examination and his premises for his opinion. In view of the lack of renewal objection so that further foundation might be laid if required, and the limited nature of the point on appeal, already quoted, we cannot say reversible error is presented. K. S. A. 60-456 provides for the admission of expert and other opinion testimony. A witness, in order to be competent as an expert, must show himself to be skilled or experienced in the business or profession to which the subject relates. He must be qualified to impart to the jury knowledge within the soope of his special skill and experience that is otherwise unavailable to the jury from other sources (Grohusky v. Atlas, Assurance Co., 195 Kan. 626, 630, 408 P. 2d 697). The trial court has discretion to determine the qualification of a witness to testify as an expert and the admissibility of that testimony (State v. Jones, 209 Kan. 526, 498 P. 2d 65). When expert testimony is received in evidence the trial court is deemed to have made the requisite findings to support the qualification of the witness as an expert (K. S. A. 60-456 [c]) and to reverse the trial court on the issue, an abuse of discretion must be found (Hagood v. Hall, 211 Kan. 46, 505 P. 2d 736). Expert testimony is frequently resorted to in such matters as the identification of cloth, fabrics and textiles (2 Jones on Evidence, 6th ed., § 14.47). The witness here appears to have had considerable background and experience in the field of fiber analysis and comparison. He was sufficiently qualified as an expert in that area to give the testimony' which he did and the trial court did not abuse sound discretion in permitting him to do so. Appellant next contends it was improper to admit into evidence the shirt he was wearing at the time of his arrest because it was the product of a warrantless seizure conducted at a time and place remote from his arrest and without his consent. The shirt comprised part of the exhibit used by the forensic .chemist in his testimony concerning fiber comparison. Appellant was arrested at approximately 11:19 p. m. while in the alley about two blocks from the scene of the crime. The following morning about twelve horns later while confined in the jail section of the police department his clothing was taken from him and sent to the KBI laboratory for analysis. Our cases sanction 'the warrant- less taking of items of wearing apparel from an accused after he has been jailed (State v. Dodson, 207 Kan. 437, 485 P. 2d 1010). A recent federal supreme court decision, United States v. Edwards, 415 U. S. 800, 39 L. ed. 2d 771, 94 S. Ct. 1234, dealt with the point. There the defendant was arrested shortly after 11:00 p. m. and detained in jail. More than ten hours later his clothing was taken from him, examined and held for evidence. At trial the result of the examination was received in evidence over defendant’s objection that neither the clothing nor the report of its examination was admissible because the warrantless seizure of his clothing was invalid under the fourth amendment to the federal constitution. The court held that once an accused has been lawfully arrested and is in custody, the effects in his possession at the place of his detention that were subject to search at the time and place of arrest may lawfully be searched and seized without a warrant even after a substantial time lapse between the arrest and later administrative processing on the one hand, and the taking of the property for use as evidence on the other. The court concluded the delay in seizing defendant’s clothing was not violative of the fourth amendment. The circumstances of the taking in the case at bar are virtually identical. Appellant’s contention is without merit. Finally, appellant asserts error in the prosecutor’s closing argument in two respects. The first has to do with arguing alternative theories of guilt — direct participation and aiding and abetting— after electing to proceed on the latter theory. Objection was made at the time of the argument complained of and was sustained. Contemporaneously the trial court instructed the jury to disregard the particular argument. Additionally, in its general instructions the court told the jury not to consider matters to which an objection had been sustained. Whatever irregularity inhered in the argument, and it was minimal at most, was cured by the 'trial court’s handling of the matter. Appellant also asserts he was denied fair trial because the prosecutor in his closing argument injected his personal belief or opinion as to appellant’s credibility as a witness. ABA Standards, The Prosecution Function § 5.8 (b) (1971) provide: “It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” Our Rule No. 501, Code of Professional Responsibility, DR 7-106 (C) (4) (214 Kan. Ixxxviii) states: “In appearing in his professional capacity before a tribunal, a lawyer shall not: “Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.” Beyond the realm of professional niceties, arguments by the prosecutor indicating his personal belief or opinion that an accused is guilty may be considered and adjudicated in terms of the prejudicial effect thereof, rather than in terms merely of professional propriety (see anno: Prosecutor — Argument—Belief In Guilt, 50 ALR 2d 766). Here there was no contemporaneous objection to the argument now complained of and that might well end the matter (see State v. Johnson, 210 Kan. 288, 297, 502 P. 2d 802). However, in our opinion the argument amounted to no more than comment on the inherent improbability of the testimony given by appellant and was not improper. Counsel may comment on the credibility of a witness where his remarks are based on the facts in evidence and a considerable latitude is allowed in that discussion (State v. Gauger, 200 Kan. 515, 438 P. 2d 455). Appellant was not prejudiced by the prosecution’s closing argument. The judgment is affirmed. APPROVED BY THE COURT. Fromme, J., not participating.	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The opinion of the court was delivered by Harman, C.: Vernon Lee was convicted in municipal court for violation of an ordinance of the dty of Junction City prohibiting certain use of handguns and knives. Upon his appeal to the district court the proceeding was there dismissed for the reason the municipal ordinance conflicted with state statutes and further that the state had preempted the field of weapons control. The dty has appealed. The fadual background of the matter is that on January 26, 1974, at 11:20 p. m. while checking a used car lot in Junction City two police officers observed defendant and another person duck behind a car on the last row of cars on the lot. The rear of the lot was not well lighted. Approaching the position where defendant was last seen, the officers discovered him and saw he had on him a hip style holster containing a .36 caliber ball and cap loaded revolver and a scabbard attached to his belt containing a knife with a blade nine and one half inches in length. Defendant was carrying a star type lug wrench in his hand. Neither defendant nor his companion was in any way associated with the used car lot and the lot was not open for business at the time. Defendant was arrested and charged with carrying deadly weapons (the knife and pistol) contrary to city or dinance. At the 'trial in municipal court defendant testified he had just been out “plinking” around but that^he had told the officers he and his companion had been rabbit hunting because at the time he believed that explanation was more appropriate; he further explained he and his companion ducked down when they saw the unmarked police car enter the premises because some associates of his companion had earlier threatened him. Defendant was found guilty in municipal court and sentenced to ninety days confinement. In district court defendant filed a motion to dismiss the action on five grounds. The first two grounds were not ruled upon by the trial court, they are not here asserted by defendant in support of the trial court’s order and they need not be further considered. The other three grounds in the motion were that the ordinance violates the federal and state constitutional rights to bear arms, it violates the home rule amendment to the state constitution and the state has preempted the field of weapons control. The trial court announced its ruling orally. After stating some kind of inherent right to bear arms and a legislative limitation thereon, the court said: “Has the city statute further enjoined the use of firearms over and above what the state has done? My answer has to be yes, in abolishing any guilty mind and, second, in abolishing the distinction between a concealed weapon and an unconcealed weapon. For that reason, the Court is going to find that the ordinance — that the state has pre-empted the law on weapons control and that the city ordinance is in contravention of the meaning of the state statute and therefore must fail.” The first point on appeal may be quickly disposed of. Defendant urges in support of the trial court’s ruling that the ordinance conflicts with the Kansas constitutional right to bear arms (§ 4, BR). He acknowledges now that the federal constitution does not guarantee the absolute right of an individual to carry a gun (United States v. Miller, 307 U. S. 174, 83 L. ed 1206, 59 S. Ct. 816; Eckert v. City of Philadelphia, Pa., 477 F. 2d 610) but argues our state constitutional guaranty is worded sufficiently different from the federal that that right should be afforded under it. We have long since laid the matter to rest. In Salina v. Blaksley, 72, Kan. 230, 83 Pac. 619, it was stated: “The provision in section 4 of the bill of rights that ‘the people have the right to bear arms for their defense and security’ refers to the people as a collective body”, (p. 231.) The court further held that the constitution guaranty is “a limitation on legislative power to enact laws prohibiting the bearing of arms in the militia or any other military organization provided for by law, but is not a limitation on legislative power to enact laws prohibiting and punishing the promiscuous carrying of arms or other deadly weapons”. (Syl.) The foregoing principles were cited approvingly in State v. Bolin, 200 Kan. 369, 436 P. 2d 978. We adhere to them. (The interested reader may find in Moore v. Shanahan, 207 Kan. 645, 663, 486 P. 2d 506, discussion of the manner in which the people, as members of the militia, exercise the right to bear arms.) As will be seen later in looking at the ordinance, it does not obstruct the right of the militia or other military organizations to bear arms for the safety and security of society. Specifically exempted from its operation are members of the armed forces, reserves and national guard in the performance of their duties. Defendant’s contention in its motion to dismiss, reasserted here, that the ordinance violates the home rule amendment is premised on the assertions the ordinance conflicts with statutory law and that the latter has preempted the area in which the city has sought to operate. In Claflin v. Walsh, 212 Kan. 1, 509 P. 2d 1130, we held that by virtue of the home rule provision of the Kansas constitution, article 12, section 5, cities are not dependent upon the state legislature for their authority to determine their local affairs and government; they have power granted directly from the people through the constitution without statutory authorization; the home rule power of cities is subject to optional control by legislative action in certain areas; section 5 (d) of the article requires a liberal construction of the powers and authority granted cities for the purpose of giving cities the largest measure of self-government; and finally, that home rule power of cities is favored and should be upheld unless there is sound reason to deny it. (Syl. ¶¶ 1, 2, 3 & 4.) The significant part of the home rule amendment for present purposes is: “Cities are hereby empowered to determine their local affairs and government . ... by ordinance passed by the governing body . . . subject only to enactments of the legislature . . . applicable uniformly to all cities. . . (Art. 12, §5 [&].) The amendment became effective July 1, 1961. Its big impact is that legislative silence on a subject no longer means absence of a city’s authority to act in that area. No longer must Kansas cities rely on enabling statutes by the legislature in order to act by ordinance in matters of local concern. Weapons control is an area of cities’ concern. That it is of con ourrent state concern is no impediment to the exercise of authority by a city through ordinance so long as there is no conflict in terms with state legislation and the state legislature has not preempted the field. Answers to these latter questions determine whether an ordinance is “subject to” state legislation within the meaning of the home rule amendment. To determine these issues we should look at the ordinance in question and the action of the legislature in the same area. Omitting formal parts ordinance No. G-360, an ordinary one enacted in 1973, provides: “12-410. (1) Unlawful use of weapons is knowingly: (a) Selling, manufacturing, purchasing, or possessing any bludgeon, sand-club, shotgun with a barrel less than eighteen (18) inches in length, metal knuckles or any knife; commonly referred to as a switchblade, which has a blade that opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife, or any knife having a blade that opens or falls or is ejected into position by the force of gravity or by an outward, downward, or centrifugal thrust or movement; or “(b) Carrying on one’s person, or in any land, water or air vehicle, a dagger, dirk, billy, blackjack, sling shot, dangerous knife, straight-edge razor, stilletto or any other dangerous or deadly weapon or instrument of like character: Provided, An ordinary pocket knife with no blade more than four (4) inches in length shall not be construed to be a dangerous knife, or a dangerous or deadly weapon or instrument; or “(c) Carrying on one’s person or in any land, water or air vehicle, with intent to use the same unlawfully, a tear gas or smoke bomb or projector or any object containing a noxious liquid, gas or substance; or “(d) Carrying any pistol, revolver or other firearm on the person or in any land, water or air vehicle except when on his land or in his abode, fixed place of business or office; or “(e) Setting a spring gun; or “(f) Possessing any device or attachment of any kind designed, used or intended for use in silencing the report of any firearm; or “(g) Selling, manufacturing, purchasing, or possessing any firearm designed to discharge or capable of discharging automatically more than once by a single function of the trigger. “(2) Exemptions, (a) Subsections (1) (a), (b), (c), (d), and (g) of this section shall not apply to or affect any of the following: (i) Law enforcement officers, or any person summoned by any such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer; (ii) Wardens, superintendents and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of crime; (Hi) Members of the armed services or reserve forces of the United States or the Kansas national guard while in the performance of their official duty; (iv) Manufacture of, transportation to, or sale of weapons to persons authorized under (i) through (Hi) of this subsection to possess such weapons. “(b) Subsection (1) (b) and (d) of this section shall not apply to or affect the following: (i) Watchmen while actually engaged in the performance of the duties of their employment; or (ii) Licensed hunters or fishermen while engaged in hunting or fishing and traveling in places to hunt and fish; or (in) Persons licensed as private detectives by the state of Kansas, detectives or special agents regularly employed by railroad companies or other corporations to perform full-time security or investigative service. “(c) Subsection (1) (b) shall not apply to a barber or licensed doctor making house calls for the purpose of practicing their trade or profession. “(d) Subsection (1) (d) shall not apply to persons carrying unloaded weapons directly from or to places where said weapons are to be or have been repaired or sold by a gunsmith or dealer. “(3) It shall be a defense that the defendant is within an exemption. “12-411. Any person unlawfully using weapons as defined in 12-410 shall upon conviction thereof, be deemed guilty of a misdemeanor and shall be punished as provided under the general penalty section of these ordinances.” We are here concerned only with section (1) (b) denouncing the carrying on one’s person a dangerous knife and section (1) (d) prohibiting carrying any revolver on the person, along with the exemptions in section (2) and the defense prescribed in section (3). K. S. A. 21-4201 provides: “(1) Unlawful use of weapons is knowingly: “(a) [Same as city ordinance (1) (ffl)] “(b) Carrying concealed on one’s person, or possessing with intent to use the same unlawfully .against another, a dagger, dirk, billy, blackjack, slung shot, dangerous knife, straight-edged razor, stiletto or any other dangerous or deadly weapon or instrument of like character: Provided, An ordinary pocket knife with no blade more than four (4) inches in length shall not be construed to be a dangerous knife, or a dangerous or deadly weapon or instrument; or “(c) [Same as city ordinance (1) (c).] “(d) Carrying any pistol, revolver or other firearm concealed on the person except when on his land or in his abode or fixed place of business; or “(e) [Same as city ordinance (1) (e).] “(f) [Same as city ordinance (1) (/).] “(g) [Same as city ordinance (1) (g).] “(2) Exemptions (a) and (b) [same as city ordinance (2) (a) and (h).] “(3) [Same as city ordinance (3).] “(4) Violation of subsections (1) (a) through (1) (f) of this section is a class B misdemeanor; violation of subsection (1) (g) of this section is a class E felony.” The essential difference between the ordinance and the state statute, pertinent here, is that the ordinance denounces carrying on one’s person a dangerous knife or firearm (with exceptions not here material) while the statute makes such carrying criminal only where the weapons are concealed or, disjunctively, in the case of a dangerous knife, carried with intent to use the same unlawfully against another. The ordinance eliminates these latter elements and is thus more restrictive, more stringent. Does this constitute a conflict? We think not. A test frequently used to determine whether conflict in terms exists is whether the ordinance permits or licenses that which the statute forbids or prohibits that which the statute authorizes; if so, there is conflict, but where both an ordinance and the statute are prohibitory and the only difference is that the ordinance goes further in its prohibition but not counter to the prohibition in the statute, and the city does not attempt to authorize by the ordinance that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict (see 56 Am. Jur. 2d, Municipal Corporations, Etc., § 374, p. 408-409). This court has applied the foregoing principles. In City of Beloit v. Lamborn, 182 Kan. 288, 321 P. 2d 177, it was held the mere fact that an ordinance provides for greater restrictions does not necessarily make it inconsistent or in conflict with the statute. Like cases of pre-home rule vintage could be cited. In Leavenworth Club Owners Assn. v. Atchison, 208 Kan. 318, 492 P. 2d 183, the issue was the validity of an ordinance requiring private clubs to close at 1:30 a. m. A statute provided that no club licensed under state law could serve alcoholic beverages after 3:00 a. m. The dub owners contended the ordinance was contrary to and conflicted with the statute. This court held no conflict existed and said: “Where a municipal ordinance merely enlarges on the provisions of a statute by requiring more than is required by the statute, there is no conflict between the two unless the legislature has limited the requirements for all cases to its own prescription.” (Syl. f 3.) The governing bodies of some cities may condude they are sufficiently protected by the state statutes on weapons control but that is their business. Evaluation of the wisdom or necessity of the Junction City enactment of a weapons control ordinance more rigid than statutory law is not within our province, although the city fathers undoubtedly were aware of the fact that in situations where passions or tempers suddenly flare easy accessibility of weapons, whether carried openly or concealed, may contribute to an increased number of fatalities, and further that their own problem is rendered more acute by the presence of an adjoining military reservation from whence combat troops trained in the use of handguns and knives sometimes repair to the city during off-duty hours. In an earlier era the cowboy entering the Kansas, cowtown was frequently required to deposit his gunbelt with the marshal. We conclude conflict in terms or language between the parts of the ordinance and the state statute does not exist. The trial court further found that the ordinance was void because state statutes have preempted the field of weapons control. This, of course, is another form of “conflict” and where it exists an ordinance is not “subject to” state legislation within the meaning of the home rule amendment. Here again we have prior as well as post-home rule precedent on the point at issue. In City of Garden City v. Miller, 181 Kan. 360, 311 P. 2d 306, this court pointed out that the fact the state has enacted legislation on a subject does not necessarily deprive a city of the power to deal with the same subject. In City of Beloit v. Lambom, supra, it was further held that legislative intent to reserve to the state exclusive jurisdiction to regulate must be clearly manifested by statute before it can be held that the state has withdrawn from the cities power to regulate in a particular area. In Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 495 P. 2d 524, the court was concerned with whether a city ordinance encroached upon an area exclusively reserved for state action. The ordinance fixed the hours of operation of clubs licensed by the state under the state private club act. In denying that state preemption existed this court said: “. . . it is significant that when the legislature adopted [the private club act] and forbade therein the enactment of any ordinance conflicting with the act, it did not include a preemptive provision. We cannot view the omission as unintentional. The legislature was perfectly aware of the method by which it could have vested exclusive control and regulation of liquor consumption in the state had it so intended, as is evidenced by its inclusion of the preemptive provision contained in [the Kansas liquor control act].” (p. 735.) In Hutchinson Human Relations Comm. v. Midland Credit Management, Inc., 213 Kan. 308, 517 P. 2d 158, we iterated the point thus: “An intent on the part of the legislature to retain exclusive jurisdiction to legislate in a given area must be clearly shown, and where such an intent cannot be gathered from the statutes themselves, whatever exttinsic evidence there may be of such an intention must be clear and convincing before the power to regulate can be said to have been withdrawn from cities.” (Syl. ¶ 6.) We find nothing in our state weapons control act which would indicate it was intended to occupy the field exclusively and we know of nothing extrinsically pointing in that direction. Defendant asserts that the legislature has enacted a comprehensive weapons control scheme, thereby evincing an intent to preempt that field. He lifts that adjectival term from the following judicial council comment quoted immediately after K. S. A. 21-4202: "These sections are the first sections of a comprehensive weapons control act. . . .” Legislative intent to preempt is not to be so simplistically found. Our state weapons control law is concerned with the protection of human life and well-being. Absent clear expression to that effect, we cannot conceive that the legislature intended by its enactment, comprehensive though it be, to exclude cities’ traditional resources from that endeavor. The subject of weapons control is such that an exclusive state policy is not necessarily required; at any time the legislature deems otherwise it still retains optional control of cities’ actions under the home rule amendment and can so declare by enacting “conflicting” law. It can undo that which a city has done. Nor do we see how parts of the ordinance under consideration in any way interfere with the purpose of the state weapons control act. The further argument that by the enactment of our present criminal code the legislature has preempted for the state the entire field of criminal law was implicitly rejected in City of Lyons v. Suttle, 209 Kan. 735, 498 P. 2d 9 (see dissenting opinion 209 Kan. 742-743, 498 P. 2d 15). The statute relied upon for the theory of preemption is K. S. A. 21-3102, which states: “(1) No conduct constitutes a crime against the state of Kansas unless it is made criminal in this code or in another statute of this state. . . .” The foregoing is simply codification of prior case law holding there are no common law crimes in Kansas — all crimes are statutory (see State v. Koontz, 124 Kan. 216, 218, 257 Pac. 944). Further negativing the notion our present criminal code was intended to preempt cities from that field are the several references to municipal courts in it and in our code of criminal procedure. For example, K. S. A. 21-3108 (3), our former jeopardy statute, bars state prosecution under certain conditions if the defendant was prosecuted “in the municipal or police court of any city of this state for a crime which is within the concurrent jurisdiction of this state. . . .” See also in our recently enacted municipal practice act provision for prosecution of non-traffic offenses (K. S. A. 1974 Supp. 12-4205). In urging need for statewide uniformity of criminal laws defendant points out that the traveler passing through Junction City could be arrested and prosecuted for having a gun in his car. Perhaps, if he did not fall within the exemptions as for hunters, etc., but in any event we are not here concerned with that part of the ordinance. This is not a declaratory judgment action for the entire ordinance. If it were, section (1) (g) dealing with fully automatic firearms could well be found to conflict with the state law because K. S. A. 21-4201 (4) declares such offense to be a felony. This portion of the ordinance is severable so that its vulnerability would have no effect upon the validity of the parts of the ordinance at issue here. Our conclusion is that state legislation has not occupied the area of weapons control to the exclusion of regulation by cities. The judgment is reversed. approved by the court.	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Per Curiam: This is the second appeal in litigation between the parties. The facts are not in dispute. In the first case, as a part of the decree divorcing the parties, the appellee in this case was given a .judgment against appellant for permanent alimony in the sum of $3,600, payable at the rate of $300 monthly, beginning on December 1, 1969. Pursuant to the decree the appellant made payments of $2,325, the last payment being on October 30, 1970. On June 26, 1970, the appellee herein, was married to Maxwell M. Duncan. The appellant first learned of the marriage on November 4,1970. On November 12, 1970, twelve days after the last alimony payment became due, the appellant was in arrears in the sum of $1,275 and filed a motion to vacate 'the alimony judgment on the grounds that it was no longer equitable that 'the judgment should have prospective application, because of fraud, and other misconduct of the appellee and all other grounds specified in K. S. A. 60-260 (h), and for the reason his financial condition has been altered for the worse since the entry of the judgment. The trial court’s judgment sustaining appellant’s motion to vacate the judgment for the reason that 'the appellee had remarried was reversed by this court in Blair v. Blair, 210 Kan. 156, 499 P. 2d 546. On November 1, 1972, the appellant commenced this action against his former wife alleging fraud and unjust enrichment and seeking a money judgment in the amount of $1,500. If the appellant obtains a judgment in this case, he plans to use it as a setoff to the alimony judgment. The trial court sustained appellee’s motion for summary judgment on the grounds that appellant’s alleged causes of action are barred by the doctrine of res judicata by reason of this court’s decision in Blair, supra. The points on appeal are: 1. The trial court erred in holding that the determination and decision in Blair, supra, is res judicata as to plaintiffs present action. 2. The trial court erred in sustaining 'the motion for summary judgment on any other grounds. We hold that the decision in Blair, supra, precludes the plaintiff from maintaining 'this action under the rule of res judicata. (Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 379 P. 2d 342; and Gray v. Johnson, 150 Kan. 276, 92 P. 2d 46.) Having so resolved point No. 1, it is unnecessary to consider point No. 2. The judgment of the lower court is affirmed. Fromme, J., not participating.	[ -112, -8, -68, 78, -118, -96, -86, -120, 96, -127, 55, 81, -1, -14, 0, 107, -30, 41, 96, 106, -41, 51, 22, 64, 114, -77, -39, -43, -67, 127, -12, -42, 77, 32, 34, -43, 102, -118, -59, 20, -114, -122, -103, 109, -39, -58, 48, 111, 64, 15, -79, -34, -69, 41, 57, 98, 72, 46, -113, 110, -48, -16, -117, 4, 111, 22, -109, 7, -42, 68, 88, 46, 20, 57, 1, -23, 114, -90, 6, 116, 106, -69, 1, 52, 98, 0, 21, -3, -104, -120, 14, -42, 31, -25, -78, 88, 75, 103, -66, -99, 117, 21, 15, 126, -20, -115, 29, 108, 26, -38, -42, -79, -116, 124, -66, 24, -25, -31, 16, 113, -51, -96, 76, 50, 59, -69, -58, -74 ]
The opinion of the court was delivered by Harman, C.: This is an appeal in a proceeding wherein parental rights were severed pursuant to K. S. A. 38-824 and related provisions in our juvenile code. The issues here are the admissibility of one item of evidence and sufficiency of the evidence to support findings of dependency and neglect and parental unfitness. Appellant Ralph Nelson, Sr. is the natural father of the eight children in question: Ralph Nelson, Jr., bom September 21, 1959; Anita Nelson, born December 8, 1960; Edward Nelson, bom July 18, 1962; Leslie Nelson, bom July 2, 1963; Vianita Nelson, bom December 11, 1964; Larry and Gary Nelson, bom May 28, 1966; and Richard Nelson, bom July 17, 1968. Appellant became a full time construction worker when he was fourteen years old. He was a heavy equipment operator over eleven years. He ceased work in 1970, citing his health as the reason for quitting. Thereafter he drew social welfare payments for the support of himself and family. His wife, the mother of the eight children, died in 1968, and since then he had sole custody of the children in his home in Topeka until they were removed by court order. He was assisted at times in caring for them by a woman who had mental problems and stayed periodically at the Topeka State Hospital. The proceeding originated December 15, 1971, when a petition was filed in juvenile court to declare the children dependent and neglected and to terminate parental rights. The children were removed from appellant’s custody December 17, 1971. After a two-part hearing in juvenile court the children were declared to be dependent and neglected and parental rights were severed. Mr. Nelson appealed this order to district court, where, after de novo hearing, the children were again found to be dependent and neglected, appellant was found to be unfit to have their custody and his parental rights were terminated. Appellant brings the matter here for review. At the hearing on June 21 and 22, 1973, in district court testimony pro and con on the issues involved was heard. Our summary of it will be in the aspect most favorable to the findings made by the trial court. A county welfare social worker testified as to conditions in the Nelson home observed by her during several visits: The house was small, in poor repair and had been converted into a three bedroom home by placing beds in the living and dining rooms; the bedrooms had no closets and there was just room to walk between the beds; the children’s clothing, which was in poor condition, was lying on the floors and piled in comers; there was neither space nor chairs for everyone to sit down for a meal together; the kitchen utensils were insufficient; three of the children appeared not to be getting adequate food; there were bags of flour and cornmeal in the kitchen which had been broken into' by rodents and roaches and were littered with droppings; she tried to get appellant to move into a larger house which was obtainable at no higher rent but he declined; appellant functioned more as a child; he appeared to be very ineffectual, could not manage money and did not want to make decisions; he was suspicious of doctors; a doctor wanted the youngest child checked for a heart murmur; appellant refused this examination; one girl had a hearing problem; a doctor recommended tonsil and adenoid removal but appellant declined to permit this; Anita had had a stroke when she was sixteen months of age; she needed arm and leg therapy and orthodontia; the witness took her for treatment one time but appellant would not permit her to be taken again; once when the youngest child was ill appellant stated he wasn’t up to taking the child to a doctor and a neighbor who had suggested that the child should have medical attention took him; appellant had a medical card for the entire family; the two oldest boys had a paper route; appellant was uninterested in obtaining work for himself; he did not want the children to play with other children in the neighborhood; the witness saw appellant intoxicated several times; once she roused him with great difficulty; he drank white wine; she discussed his drinking with him but he would not admit any problem although he went once to Alcoholics Anonymous. A married couple, the Morgans, who were neighbors to appellant for three months prior to the time the children were taken, testified: They saw appellant drinking alcohol many times; he was frequently drunk and was in that condition nearly every day during the latter part of the period; the children requested help of Mrs. Morgan; Mrs. Morgan would clean up the mess in the house three or four times a week and both Morgans would prepare food when appellant was drank; sometimes he was “passed out” on the front porch; appellant was drinking hard liquor secured from a bootlegger; he occasionally would ask the children to take a drink; the Morgans saw appellant strike the children with his fists when he was drank; he required the children to wait on him; he was seen to eat first while the children got the leftovers; he slapped Anita once when she got the wrong pan, causing a braise on her face; he knocked one of the boys down when he came home from his paper route and didn’t turn over the money; appellant struck the smallest child on the face when he was sick and cried; Anita said her father slammed a door on her fingers because she was not working fast enough; the witnesses saw braises on her fingers, shoulders, arms and legs which Anita said appellant had caused. A family service physician, who was also a psychiatrist, examined four of the children. He testified the twins had retarded speech, were emotionally immature, lacked socialization skills and were preoccupied with concerns of injury and abandonment. He believed the home conditions along with the loss of the mother con tributed to their lack of development. He did not find the same conditions in the two older boys. A child psychiatrist examined the two girls. He believed they had had adequate upbringing until the death of their mother. He found that Anita had a semi-paralyzed right hand, she was shy, had difficulty in pronouncing words and was afraid of receiving physical punishment from her father. Vianita had the same fear but showed less psychological disturbance than Anita. He believed placement in foster homes had been beneficial to both girls. A county health department worker had visited the Nelson home in 1970; living condition's were poor, furniture was needed, the house was full of roaches and the two children were poorly dressed and needed clothing. A Kansas Neurological Institute nutritionist attempted to help appellant learn to prepare commodity food; his tableware and kitchenware were inadequate and he failed to provide more; she made several visits in appellant’s home and to that of another client nearby; she saw appellant in a drunken condition several times; twice he was lying drunk in the yard in the morning and she had also seen him drunk on the front porch; wine bottles were in the yard and the house was a “total wreck”; she heard him arguing with a neighbor several times; on occasions the police were there; Anita said sometimes they had no chance to eat breakfast and sometimes didn’t eat until late at night. A friend who took appellant to the commodity distribution center and returned with him to the Nelson home about 11:00 a. m. observed there had been no meal for the children over the noon hour; appellant had purchased a bottle of liquor which was gone by 1:30 p. m.; appellant was alseep when the witness left; he had seen appellant drunk on other occasions. A school teacher in a special education class testified Anita had made remarkable improvement in the class from December, 1971, to May, 1972; she thought the change had been brought about by Anita’s placement in a foster home. Anita Nelson testified that while with her dad the children were being beaten with fists and sticks most of the time and she didn’t like it; she and Ralph did the washing and they all helped with the cooking; neighbors helped; the children were sometimes hungry after they ate; her father drank a lot; she preferred living in the foster home. Appellant testified in his own behalf: He drank a little but knew what he was doing; he admitted he was considered an alcoholic, had been so diagnosed by a doctor and had spent a month at the Topeka State Hospital alcoholic section; there was always adequate food for the children and he had sufficient tableware and kitchen equipment; he had never hit the children, except to spank the youngest, and he thought the world of the children and wanted them with him; he used the money from the boys’ paper routes to buy clothing; he admitted he had not told the truth in some instances while testifying under oath in juvenile court. He received welfare payments varying from $292.00 to $349.00 per month. Appellant produced two witnesses who testified the children were clean; neither witness had seen appellant drink except once when he was sick. The oldest Nelson boy testified that appellant did not beat the children; he drank and was sometimes drunk; Anita did most of the cooking; the witness would rather live in the foster home where he had been staying than with appellant. Appellant complains the trial court improperly received evidence of events occurring after the petition to sever parental rights was filed. The testimony in question was that of Mrs. Morgan concerning the slapping of Anita by appellant when she got the wrong pan. The witness was uncertain of the exact time of the occurrence, first saying it was before Christmas in 1971, then she fixed the date as December 23, 1971, and when advised the date of the children’s removal from appellant’s custody was December 17, 1971, she could only say the incident occurred while the children were in the Nelson home. The petition was filed December 15, 1971. Assuming the event in question occurred after the filing of the petition, appellant’s contention has no merit. The trial in district court was a de novo hearing on the factual issues of the dependency and neglect of the children and appellant’s fitness to have their custody and the ultimate issue of the best interests and welfare of the children. The questioned evidence was relevant to those issues and it was not rendered inadmissible because it related to events occurring after the filing of the petition initiating the proceedings. Nothing in our evidentiary code renders such evidence inadmissible nor are we aware of any sound reason why it should be so declared. Legislative intent in promulgating our juvenile code is stated in K. S. A. 38-801 as follows: “This act shall be liberally construed, to the end that each child coming within its provisions shall receive such care, custody, guidance, control and discipline, preferably in his own home, as will best serve the child’s welfare and the best interests of the state. . . .” That the legislature has contemplated evidence of events occurring subsequent to the filing of a petition to declare children dependent and neglected is admissible in the hearing is demonstrated by K. S. A. 38-817 which provides that if requested by the juvenile court the secretary of social and rehabilitation services shall make such investigation as the court may request and report the findings to the court upon the hearing of the petition. Such an investigation and report might well encompass events occurring subsequent to the filing of the petition. The paramount consideration of a court in a case involving custody of minor children is the welfare and best interests of the child (In re Johnson, 210 Kan. 828, 504 P. 2d 217), and in determining whether parental rights should be severed courts routinely consider evidence of improvement of a child’s attitude, behavior, schooling and physical and mental health after removal from parental custody (see, e. g., In re Johnson, 214 Kan. 780, 522 P. 2d 330). Appellant attacks the sufficiency of the evidence to support the findings of dependency and neglect and of his unfitness, citing the rule that a natural parent will not be deprived of the custody of his child in the absence of clear and convincing evidence (In re Stafford, 193 Kan. 120, 392 P. 2d 140). We think the evidence here is of that character (see In re Bachelor, 211 Kan. 879, 882-883, 508 P. 2d 862, for definitions and examples of the terms “dependent and neglected children” and “unfitness”). Appellant’s challenge to the evidence largely derives from testimony produced by him which the trial court chose not to believe. It is not our province to usurp that court’s fact-finding function and reweigh the total evidence adduced — were we to do so we would have difficulty reaching a different conclusion from that of the two tribunals which have already heard the case. The state’s evidence, which came from a number of apparently objective witnesses and extended over a considerable period of time, was largely unrefuted except by appellant himself. We will not repeat that evidence. It revealed a pattern of neglect and indifference in a number of areas important to the well-being of the children as well as outright abuse of them, bottomed in part at least on appellant’s unfortunate addiction to alcohol. Clear and convincing evidence supported the trial court’s findings and its judgment is affirmed. APPROVED BY THE COURT.	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Per Curiam: Appellant Thomas J. Doolin, an inmate of the Kansas State Industrial School for Boys (now Youth Center at Topeka), was convicted in the Shawnee county district court of aggravated juvenile delinquency. The sole question on appeal is the venue of that court. On June 2, 1972, appellant escaped from control of the school authorities while on a supervised trip to the Osage County State Lake. He remained at large until apprehended several days later in Iowa. He had previously, and on May 26, 1972, escaped control from the grounds of the school at Topeka. K. S. A. 21-3611 provides in part: “(1) Aggravated juvenile delinquency is any of the following acts committed by any person confined in the state industrial school for boys or in the state industrial school for girls or by an delinquent child or miscreant child, as such terms are defined by K. S. A. 1971 Supp. 38-802, who is confined in any training or rehabilitation facility under the jurisdiction and control of the state department of social welfare: “(f) Running away or escaping from any of such institutions or facilities after having previously run away or escaped therefrom one or more times. K. S. A. 22-2603 provides: “Crime committed m more than one county. Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.” The prior escape was requisite to the commission of the offense charged. It having occurred in Shawnee county, venue lay in that county. Judgment affirmed.	[ -48, -54, -35, 60, 26, -31, 120, 22, 97, -9, 101, 83, -23, -50, 1, 121, 11, 111, 84, 121, -47, -73, 115, -63, -84, -5, -103, -43, -69, 77, 124, -41, 8, 112, -118, 85, -58, 0, -17, 84, -114, 9, -70, -46, 81, 3, 62, 108, 42, 10, 49, 14, -13, 106, 18, -61, 73, 44, -53, -89, 9, -39, -5, 23, 126, 22, -93, -124, -98, -121, -48, -86, -48, 56, 0, -24, -13, -126, -62, -12, 15, -119, -92, 102, 98, 35, 60, -17, -76, -119, 62, -73, -99, -25, -101, 88, 67, 12, -105, -35, 118, 85, 11, 126, -25, -124, 87, 106, -122, -49, -16, -109, -115, 49, 6, -79, -5, 37, 32, 81, -43, -122, 84, -122, 56, -101, -81, -8 ]
The opinion of the court was delivered by Owsley, J.: This is a direct appeal by defendant, Karla M. Panker, from a conviction for the sale of marijuana. The single issue on appeal concerns the events that transpired during the polling of the jury. After the jury had deliberated on the case they notified the court that they had reached a verdict. The jury returned to the courtroom where a verdict of guilty was read aloud by the court reporter. Immediately thereafter the jury was polled as to their individual votes pursuant to the request of defendant. During the polling, the following colloquy took place: “(Reporter’s Note: Thereupon at this time, a verdict of guilty was read aloud by the Reporter, after which the following was had to-wit:) “The Court: Do you desire to have the jury polled, Mr. Lake? “Mr. Lake: Yes, I do. “(Reporter’s Note: Thereupon at this time, a polling of the jury was had, during which poll the following was had to-wit:) “Juror Lucero: Well, there was one question we had to answer and I, myself, am not quite clear that we had an answer or not, but we voted on it. “The Court: What are you alluding to, sir? “Juror Lucero: The definition of presence. “The Court: Presence? “Juror Lucero: Yes, can I talk about this? “The Court: Well, I certainly want to know what you are referring to because I think the defendant is entitled to know this. “Juror Lucero: Does the definition of present during a sale constitute a sale? “The Court: Well, I told you to read your Instructions in connection with this, because the Instructions fully set forth what the State had to prove in order to find this defendant guilty, and you should have done that, and if there is any question about the elements of those Instructions, then I would want to know it now? I want you to abide by them. You can’t bring things into the case that are not here. Now, are you fully satisfied of that which you have determined here? “Juror Lucero: Based upon the definitions you gave, yes. “The Court: All right, proceed on, Mr. Reporter. “Juror Bayless: Yes, I am satisfied, but I had the same question as far as the definition goes. I had the same question about the one of sale and presence, but as to the definitions given to us, I am satisfied. “The Court: All right, proceed on. "(Reporter’s Note: Thereupon at this time, the polling of the jury was completed, after which time the Court accepted the verdict of the jury, and at this time the jury was discharged from any further consideration of the case.” Defendant contends the trial court committed reversible error by questioning the jurors in the manner disclosed by the foregoing colloquy. Under the theory expressed by defendant it was incumbent upon the trial court to send the jury out for further deliberation if any member of the jury, when being polled, expressed concern or doubt about the verdict. K. S. A. 22-3421 provides as follows: “The verdict shall be written, signed by the foreman, and read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete, and the jury discharged from the case. If, however, the verdict be defective in form only, the same may, with the assent of the jury, before they are discharged, be corrected by the court.” The American Bar Association Standards for Criminal Justice, Trial by Jury, Section 5.5, provides: . . If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.” We are unable to make any significant distinction between disagreeing with the verdict and the requirement of unanimous concurrence. Any party in a civil or criminal case has an absolute right to have the jury polled. (State v. Muir, 32 Kan. 481, 4 Pac. 812.) This practice requires each juror to answer for himself, thus creating individual responsibility and eliminating any uncertainty as to the verdict announced by the foreman. It also affords an opportunity for free expression unhampered by the fears or errors which may have attended the private proceedings. (8 Wigmore, Evidence, McNaughton Rev. 1961, § 2355, p. 717.) Since neither party cites any cases from our reports on the issue involved in this action, and our search reveals none, we recognize this as a case of first impression. Defendant cites the following cases from the federal courts: In United States v. Edwards, 469 F. 2d 1362 (5th Cir. 1972), a juror, when being polled, stated “It’s my verdict, but I am still in doubt.” The trial judge questioned the juror, subsequently obtained a “Yes, sir” answer, and therefore accepted the verdict. The case was reversed on appeal, the appellate court stating that where the poll indicates a lack of unanimity the trial court must refrain from attempting to extract unanimity by questioning from the bench and must either order the jury to retire for further deliberations or dismiss them. In United States v. Sexton, 456 F. 2d 961 (5th Cir. 1972), upon a poll of the jury one of the jurors announced that she did not vote. The court inquired, “Well, is it your verdict?” to which she replied “Yes, sir.” On appeal it was held this constituted reversible error. The appellate court reasoned that when efforts to secure a verdict from a juror reach the point that a single juror may be coerced into surrendering views conscientiously entertained, the jury’s province is invaded and its requirement of unanimity is diluted. The court also stated it was error to permit counsel to question the reasons or motives of a juror in changing his mind. In Bruce v. Chestnut Farms-Chevy Chase Dairy, 126 F. 2d 224 (D. C. App. 1942), a civil case, the announced verdict of the jury was in favor of the defendant. Two' of the jurors, upon being polled, stated their verdict was for the plaintiff. Upon further inquiry by the court, each juror recanted. In holding the trial court erred in accepting the verdict, it was stated that the trial court should have required the jury to retire and give further consideration to the case. In United States v. Bendicks, 449 F. 2d 313 (5th Cir. 1971), the jury returned a verdict that the defendant was sane at the time of the offense. A poll of the jury revealed that one juror had reached an opposite verdict, and the trial court instructed the jury to retire and resume its deliberations as the verdict was not acceptable. Upon further deliberation the jury again returned a verdict of sanity and, as before, was polled. All jurors stated the verdict was their true verdict. It was held the acceptance of the verdict was not error. In United States v. McCoy, 429 F. 2d 739 (D. C. App. 1970), in response to the clerk’s request to- “state yes or no whether or not your verdict is the same as that given by your foreman,” one juror answered “Yes, with a question mark.” The court held the jury should have been ordered to resume its deliberation and the juror’s subsequent answer “Yes” did not remove the uncertainty of her verdict. To the same effect is United States v. Fox, 488 F. 2d 1093 (5th Cir. 1973). Defendant also relies on Matthews v. United States, 252 A. 2d 505 (D. C. App. 1969), where a juror answered her vote of guilty was conditional. The court required her ti> answer “guilty” or “not guilty.” On appeal, it was held the court should not have required the juror to answer “guilty” or “not guilty,” but should have retired the jury for further deliberation. These cases are cited as a basis for the contention that the jury in the instant case should have been returned to the jury room for further deliberation. We generally agree with the conclusions reached by the appellate court in each of these cases, but other than the fact a colloquy occurred between the court and a juror, we find no similarity to the facts in this case. In the cited cases we find either a disagreement with the verdict, a statement of doubt or question as to the correctness of the verdict, or a failure of the jury to vote on the verdict. Here, we have a juror, without any reference to the verdict, raise a question as to the meaning of an instruction. The trial judge, after learning the nature of the problem, advised the juror that the instructions fully set forth what the state had to prove in order to find defendant guilty, and that the jury should abide by the instructions and not bring things into the case that were not there. After inquiry of the trial judge as to whether the juror was fully satisfied, the juror stated, “Based upon the definitions you gave, yes.” Undoubtedly, some discussion was had among the jurors as to the meaning of the instruction. We feel justified in stating that few jury verdicts are rendered without some difference of opinion as to' the meaning of instructions. If these differences were raised by a responding juror in every poll, and could be considered as destroying the required unanimity, we would seldom terminate a controversy. We do not consider the inquiry and remarks made by the trial judge objectionable. We are satisfied there was no disagreement with the verdict by the inquiring juror and unanimous concurrence in the verdict was obtained. An annotation entitled “Juror’s Reluctant, Equivocal, or Conditional Assent to Verdict, on Polling, as Ground for Mistrial or New Trial in Criminal Case” appears in 25 A. L. R. 3d 1149. Most of the cases cited by the state appear in the annotation. Summarizing the result of the plethora of cases cited therein, the annotator states that when the response of a juror indicates a lack of free or voluntary consent or indicates considerable doubt about the guilt of the accused, further deliberation should be ordered or a mistrial declared. This rule is in harmony with the cases cited by defendant. We believe it is sound in principle and in accord with our statute, and should be adopted in this state. If the response of the juror does not clearly fall within the foregoing rule the discretion of the trial cotut must be exercised. Limited inquiry should be permitted to determine whether the required unanimity has been obtained. It should be recognized that the mind of man is unpredictable and the realm of possible responses of a juror is limitless. In dealing with such responses the trial court’s inquiry should be aimed toward a determination of whether the juror’s verdict was made with an understanding of its effect. After such determination, the test herein stated should be applied. Judgment is affirmed.	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The opinion of the court was delivered by Fontron, J.: The defendant, Robert Frederick Mall, was convicted of aggravated robbery and felony possession of a firearm, a .22 caliber revolver. He was sentenced to a term, of from fifteen years to life on the robbery charge and from one to ten years on the firearm violation. Unhappy at this turn of events, he appealed both convictions. It appears from the record that on June 28, 1972, about 10 or 10:30 p.m., the Quik-Trip store in Salina was held up by a man armed with a .22 caliber revolver. The robber obtained approximately $85 from 'the cash register, which the manager put in a sack at the gunman’s order, and $4 from the manager’s billfold. The manager observed the robber’s car as it drove away. He called the Salina police department, describing the car, the man and the weapon. An alarm was put out over radio. The robber was described as a white male, forty-five to fifty years old, about 5' 9" tall, slender in build, with white hair and wearing a tan or faded orange shirt. The car was described as “a light over silver or gray Ford or Mercury product.” At approximately 11:25 p. m. a state highway patrolman, while manning a roadblock some eight or nine miles from Abilene, stopped a 1966 Lincoln Continental fitting the general description of the robbers car and informed the driver, who turned out to be the defendant, that both driver and car fit the description he had. The trooper asked for identification. The defendant said “that was a coincidence" and presented the trooper with a 1958 Kansas driver’s license. At this point the trooper looked in the car and found a .22 caliber revolver under the driver’s seat. He thereupon placed the defendant under arrest and advised him of his rights. A second trooper arrived about this time. He helped handcuff the defendant and then continued a search of the vehicle. This time a brown paper sack of coins was found in the car. At the trial the revolver and sack of coins were offered by the state. They were admitted in evidence over the defendant’s objection. The admission of these evidentiary items constitute the defendant’s sole claim of error in this appeal. The defendant challenges the search of his car as being illegal, in that no search warrant was obtained, it was not conducted incident to a legal arrest and was not made on probable cause. Accordingly, he argues, the coins and the gun were the “fruits of the poison tree” and thus inadmissable in evidence, following Terry v. Ohio, 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and its progeny. We have had occasion to rule on similar contentions at various times in the past and our decisions are at odds with the position taken by the defendant. Laying aside the question of whether the search was incidental to defendant’s arrest, we view the facts of this case as justifying the search on the basis of probable cause. Both car and driver fit, in general, the descriptions given police by the victim. The trooper had heard the descriptions broadcast. We think he had probable cause to believe the vehicle contained fruits of the crime. A few of our past decisions will suffice to point out the applicable law. In State v. Robinson, 203 Kan. 304, 454 P. 2d 527, we stated: “The authority to search an automobile is not necessarily conditioned upon obtaining a search warrant or upon the right to arrest. It may be dependent on reasonable cause which an officer has for belief that contents of the vehicle offend against the law.” (Syl. f 2.) This rule was restated verbatim in State v. McMillin, 206 Kan. 3, 476 P. 2d 612. In a somewhat more recent case, State v. McCollum, 211 Kan. 631, 507 P. 2d 196, the facts were very similar to those now before us. A Seven-Eleven store in Kansas City was held up and robbed by a man carrying a sawed-off shotgun. A description of the robber, his hat and coat, and the car he used was broadcast over the police radio. Within twenty minutes an officer stopped a vehicle answering the description. He proceeded to look in the car. The search produced a wad of money, a sawed-off shotgun and a trench coat and hat as described. The defendant objected to the admission of the articles in evidence as having been obtained in a warrantless search of tíre vehicle. We said: “The ability of an automobile to be moved to an unknown location or beyond the jurisdictional reach of the officer makes resort to a search warrant impractical in some oases. In such cases, if an officer has reasonable cause to believe the conveyance contains contraband or items which offend against the law, the officer may conduct a reasonable warrantless search of the vehicle. (Carroll v. United States, 267 U. S. 132, 69 L. Ed. 543, 45 S. Ct. 280; and State v. Robinson, 203 Kan. 304, 454 P. 2d. 527.)" (p. 641.) The defendant points out that he was not placed under arrest until after the revolver had been found in the car. From this he would somehow have us infer that the search was unreasonable and illegal. In our view this time sequence is entirely immaterial so far as probable cause is concerned. In State v. Undorf, 210 Kan. 1, 7, 499 P. 2d 1105, we had this to say on the point: “. . . [I]f there is probable cause to search a car such search need not be ‘incidental to’ or ‘contemporaneous with’ an arrest, but may be made wholly independently of any arrest at all. . . .” This language was later quoted in State v. McCollum, supra. Our latest discourse on the subject at hand may be found in State v. Tygart, 215 Kan. 409, 524 P. 2d 753, where we said: “. . . [I]f law enforcement officers have probable cause for searching a motor vehicle, other than that incident to a lawful arrest, such probable cause will furnish sufficient constitutional justification for their searching the vehicle without obtaining a search warrant, and in this respect the right to search the vehicle is different from and broader than the right to search premises such as a home, store or office. . . .” (pp. 412, 413.) Before closing, we may note there was testimony at the trial to the effect that defendant assented to the search of his car, although we need not premise our decision on that hypothesis. We find no merit in the defendants contentions and the judgment of the trial court is affirmed.	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The opinion of the court was delivered by Fatzer, C. J.: This is an appeal from, a conviction of burglary in violation of K. S. A. 21-3715 and possession of burglary tools prohibited by K. S. A. 21-3717. The facts are not in dispute, and are summarized: On September 20, 1972, the defendant was charged in three separate counts of an information with burglary, possession of burglary tools, and attempted theft. The matter was tried to a jury which found the defendant guilty of burglary, guilty of possession of burglary tools, and not guilty of attempted theft. The defendant, on a motion for a new trial, introduced evidence by one of the jurors that another juror had brought a dictionary into the jury room for the purpose of defining “burglary” and “intent.” The district court found prejudicial misconduct on the part of the jury and ordered a mistrial on all three counts. Later, and on January 30, 1973, the defendant moved the district court for an order discharging him from the charge of attempted theft. The district court dismissed the attempted theft charge on the ground of double jeopardy. Prior to' the commencement of the second trial on February 5, 1973, the defendant moved to- dismiss the charge of burglary on the ground of double jeopardy, having been acquitted on the charge of attempted theft. The district court concluded that burglary is a distinct and separate offense from the crime of attempted theft and denied his claim of double jeopardy. On February 5, 1973, the defendant’s second trial on the charges of burglary and the possession of burglary tools was commenced. The case was submitted to the jury in the early afternoon of February 6, 1973. A recess was declared at 5:25 p. m. The jury reconvened at 9:45 a. m. on February 7, and the deliberations continued until 12:00 o’clock noon on that date. At that time the foreman informed the district court that “the jury was unable to reach a unanimous decision.” The court then declared a mistrial and placed the case on the calendar for a subsequent trial by jury. The defendant’s third trial was commenced on April 16, 1973. A police officer testified that when he responded to a dispatch advising that an alarm had been set off at the Gateway Sporting Goods Company, he found the defendant crouched in an aisle behind a merchandise display in the store. Another police officer testified that when he arrived at the store some nine minutes later at approximately 8:34 p. m., he searched the defendant and found a crowbar in his left rear trouser pocket, a flashlight and gloves in his left coat pocket, and twine in his hand. A police officer assigned to the investigation division testified he found no pry marks, nor were defendant’s fingerprints on the door, and that if a crowbar was used, there should have been pry marks. He further testified that upon his arrival at the scene, the bolt which locked the door was not engaged. The store manager testified the store horns were 10:00 a. m. to 6:00 p. m.; that the store was equipped with an alarm system which was activated when the store door was closed; that the store sold flashlights and gloves such as were removed from the defendant’s possession; that the alarm system was activated that evening, and that the closing of the door all the way would activate the alarm system — it was not necessary that the door be locked. The defendant’s testimony on his own behalf is summarized in the record as follows: . . [H]e owned a tavern which had a kitchen which he operated and that he lived above the tavern in an apartment. On July 8 he closed his tavern at approximately 6:00 and before leaving he cleaned an exhaust fan inside his kitchen, and that after finishing he stuck the gloves in his pocket and drove to the Metcalf Shopping Center. “. . . [T]hat when he came to the Gateway store the door was open and he just walked in. At that point a man came running out and dropped a crowbar at his feet. At this point he saw the officer come in with a gun and he ducked down real quick.” The record does not indicate how the crowbar got into defendant’s “left rear trouser pocket.” The jury returned a verdict of guilty on both counts — burglary and possession of burglary tools. The verdict was reduced to judgment and the defendant sentenced. The defendant first contends the acquittal by a jury of the charge of attempted theft precluded subsequent trials on charges of burglary and possession of burglary tools since all charges related to the same issues and the acquittal was res adjudicata as to the other charges. The defendant more specifically contends that, “The prosecution, having litigated the material facts in this action in the first trial unsuccessfully, is collaterally estopped from again litigating the same facts in subsequent trials.” It may be stated that the rule of estoppel by adjudication or collateral estoppel means nothing more, when applied to a criminal case, than “double jeopardy.” Before proceeding further, it will be helpful to consider the general rules which determine double jeopardy or collateral estoppel in a criminal prosecution. Identity of offenses is universally declared to be an indispensable ingredient of jeopardy. (State v. McCarther, 198 Kan. 48, 422 P. 2d 1012.) Where one statute describing an offense requires proof of a fact which another statute does not, then the offenses are not the same, and a conviction or acquittal under one does not bar prosecution under the other on the ground of double jeopardy. In State v. Anderson, 172 Kan. 402, 241 P. 2d 742, it was held: “In criminal cases, the ultimate test applied in determining the validity of a plea of former conviction or former acquittal is identity of offenses, and it is not necessarily decisive that the two offenses may have some material fact in common. (State v. Ragan, 123 Kan. 399, 256 Pac. 169.)” (Syl. ¶ 4.) In the opinion it was said: “. . . A putting in jeopardy for one act is not a bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial for the one of them first had. Consequently a plea of former jeopardy will not be sustained where it appears that in one transaction, two distinct crimes were committed. . . .” (1. c. 410.) We turn now to the criminal statutes in question to determine the validity of appellant’s contention. “Burglary" is defined in K. S. A. 21-3715 as follows: “Burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.” Possession of burglary tools is defined in K. S. A. 21-3717, as follows: “Possession of burglary tools is the knowing possession of any key, tool, instrument, device or any explosive, suitable for use in entering an enclosed structure or a vehicle or means of conveyance of persons or property, with intent to commit burglary.” “Theft” is defined in K. S. A. 21-3701, as follows: “Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property; “(a) Obtaining or exerting unauthorized control over property or “(b) Obtaining by deception control over property; or “(c) Obtaining by threat control over property; or “(d) Obtaining control over stolen property knowing the property to have been stolen by another. “Theft of property of the value of fifty dollars ($50) or more is a class D felony. Theft of property of the value of less than fifty dollars ($50) is a class A misdemeanor. “Nothing herein shall prohibit the removal in a lawful manner, by towing or otherwise, of personal property unlawfully placed or left upon real property.” “Attempt” is defined in K. S. A. 21-3301, as follows: “(1) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime. “(2) It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible. “(3) 'An attempt to commit a class A felony is a class C felony. An attempt to commit a felony other than a class A felony is a class E felony. An attempt to commit a misdemeanor is a class C misdemeanor.” From an examination of the statutes it is readily determinable that the crimes charged were separate and distinct offenses. The gravamen of the crime of burglary is entering without authority or remaining in a structure or vehicle with the intent to commit a felony or theft. To convict a person for the crime of possession of burglary tools, the state must prove that person knowingly had possession of a device or explosive adapted, designed or commonly used for committing a burglary, and an intent to commit a burglary. In State v. Ogden, 210 Kan. 510, 502 P. 2d 654, we stated: “. . . One can commit a burglary without burglary tools, and one can be guilty of the possession of burglary tools without committing a burglary. . . .” (1. c. 515.) In the case at bar, the defendant was charged with attempted theft as follows: “. . . [Defendant] did then and there unlawfully, feloniously in the perpetration of the crime of felony theft place handguns, being revolvers of a value of more than $50.00 which were the property of the Gateway Sporting Goods Company in suitcases, with the intention to commit said crime and the said [defendant] was prevented and intercepted in executing said crime . . . in violation of § 21-3301 K. S. A.” Proof of an intent to commit a crime together with the performance of some act toward the commission of the crime, and the failure to consummate its commission constitutes an attempt. (State v. Bereman, 177 Kan. 141, 276 P. 2d 364.) Here, the facts necessary to' convict appellant for attempted theft would not necessarily have convicted him of burglary. One can commit a theft or attempt to commit a theft without committing a burglary. We conclude the offenses with which the appellant was charged were separate and distinct and formed no basis for estoppel or double jeopardy. The appellant lastly contends the district court erred in declaring a mistrial of his second trial because it failed to make the necessary judicial determination prior to declaring a mistrial, and the defendant was twice placed in jeopardy. We find no merit in the contention. The court was advised by the foreman of the jury that it was unable to reach a unanimous decision. The district court is given authority by K. S. A. 22-3423 to order a mistrial if the jury is unable to agree upon a verdict. The district court specifically asked for comments by counsel. There were none. It is clear there was both a factual and statutory basis for the order of a mistrial. The judgment is affirmed.	[ -48, -8, -3, 30, 10, 96, 42, -36, 96, -107, 114, -41, -87, 67, 5, 107, 27, 93, -43, 105, -38, -73, 19, -61, -74, -69, -109, -59, -71, 75, -4, -10, 9, 32, -62, 85, 70, -126, 69, 92, -118, 5, -72, 83, -63, 90, 44, 62, 116, 10, -15, 30, -13, 43, 30, -58, 73, 40, 75, 60, 112, -7, -69, 13, -39, 22, -93, -90, -100, -123, -12, 47, -100, 49, 0, -24, 115, -122, -106, -12, 111, -101, -116, 38, 98, 2, 29, -49, -20, -87, 6, 119, -67, -89, -111, 72, 73, 12, -106, -99, 116, 22, 38, -2, -25, 20, 15, 108, 7, -121, -48, -109, -115, 112, -114, -24, -21, -95, 49, 113, -52, -94, 94, 119, 115, -65, 78, -107 ]
The opinion of the court was delivered by Prager, J.: This is a direct appeal in a criminal case in which the defendant-appellant, Howard Camey, was convicted of aggravated robbery as defined by K. S. A. 1970 Supp. 21-3427. The only real issue in the case was the identity of the defendant as the robber. The record discloses that on October 8, 1971, the Powers Liquor Store located at 1506 East 10th Street in Topeka was robbed. At about 9:00 a. m. on that morning Mrs. Charlene Powers, the owner, opened the store and started the day out with about $35 in cash. She made one sale during the morning in the amount of $15.17. At approximately 11:30 a. m. a young black man came to the store and ordered a fifth of Johnnie Walker red. When Mrs. Powers turned to pick up the bottle, the customer pulled a gun from under his shirt and demanded the money from the cash register. She immediately handed him $50 in cash from the cash register and the robber fled the scene. Some of the bills were held together by a paper clip. As soon as the robber left the store Mrs. Powers immediately ran from the store to the premises across the street where two men were working on a school bus. She advised them that she had been robbed. At this time she observed an individual wearing beige or gray trousers, a maroon shirt and a gray or beige hat running down the alley. This individual was dressed in the same way as the robber who had held her up. She observed him get into a Buick Riviera either gray or silver, with a dent in the right rear side of the vehicle. One of the mechanics ran up the alley after the robber and the other mechanic got in his bus and pursued the robber as the latter drove away. William Pressgrove, one of the mechanics, testified that Mrs. Powers came out of the store shouting that she had been robbed and pointed up the alley to the north to a man he observed running up the alley. He was wearing a floppy hat, a maroon knit shirt, and gray trousers. • He immediately ran up the alley after the individual, saw him Jump-in a car and take off. He described the getaway vehicle as a grayish Buick Riviera approximately a 1967 model with the right rear quarter panel smashed in just above the tire. He identified the fleeing robber as a black man. Robert Milner testified that he was working on the bus across the street from the liquor store. He observed a black man run out of the store followed by Mrs. Powers who shouted she had been robbed. The man had on a wide hat with a maroon shirt and tan trousers. On observing the man run down the alley, Milner jumped into a truck drove it down the street and came up behind a gray or silver Buick Riviera. The Buick was driven down 6th Street, ran a stop light and proceeded east on 6th Street. Milner followed the Buick for about four or five miles. He wrote the license number of the Buick Riviera on a piece of paper and gave it to- a uniformed sheriff patrol officer who was sitting on 6th Street at a traffic tieup. Milner advised the sheriff’s officer that Mrs. Powers had been robbed and described the vehicle that he had been following. A description of the robber’s car was broadcast over the police radio network. Wayne Turner, a Leavenworth county deputy sheriff, picked up the Shawnee county broadcast over his radio at approximately 12:05 a. m. He observed á vehicle matching the description he had received from Shawnee county going in an easterly direction through the Highway 24-40 and Highway 16 junction near Tonganoxie. He followed behind the vehicle and observed the license tag number was the same as that contained in the radio description. He then called another officer to help and observed that the vehicle had damage to the right rear quarter panel. The vehicle was stopped two miles east of Tonganoxie on Highway 24. The driver was then ordered out of the car and was arrested for armed robbery. The driver was identified as the defendant, Howard Carney. Immediately following the arrest deputy sheriff Turner removed a wad of bills from the left front pocket of the defendant, consisting of twenty-five $1.00 bills, one $10.00 bill, and three $5.00 bills. Some bills were held together by a paper clip but he did not know how many. The defendant on arrest denied that he had been in Topeka and stated that he had been to Lawrence. After the defendant was taken into custody, the $50 in currency taken from his person was delivered to the dispatcher-jailer at the Leavenworth county jail. At the time the defendant was arrested there was no hat or gun found in his vehicle. The defendant denied that he was the robber. At the trial the defendant took the stand and testified that on the morning of October 8, he had left Kansas City wearing red pants and a red shirt, that he had driven to Topeka to visit his sister but found on arrival that she had moved and he could not find where she had moved to. He then drove around Topeka trying to locate some of his other friends and finally left Topeka by way of 6th Street. While going down 6th Street he noticed a van behind him. He stat ed that he did not stop at the Powers Liquor Store and did not own a floppy hat or gun and that he did not change his trousers at any time during that morning, that he proceeded toward Kansas City as he needed to pick up his roommate at work. Near Leavenworth he was stopped by the police. He was told that he was under arrest for a robbery in Topeka. The defendant also called as alibi witnesses, his brother, David Carney, his mother, Mildred Carney, and his roommate, William Gilliard. Both David Carney and Mildred Carney testified that Mrs. Powers had stated that she was not sure that it was the defendant who had committed the robbery and that she wanted to drop the charges. Mildred Carney further testified that just prior to the robbery she had given her son either $30 or $31 consisting of two $5 bills, a $20 bill, and three $1 bills, and that the money did not have a paper clip on it. William Gilliard testified that on the morning of the robbery defendant had left Kansas City to go to Topeka to visit his sister at approximately 6:00 a. m. wearing a red body shirt and black and red trousers. Charlene Powers was called in rebuttal by the state and denied that she had ever told anybody that she was not sure who had robbed her. The case was submitted to the jury who returned a verdict of guilty of aggravated robbery. The defendant has appealed to this court alleging trial errors. The defendant’s first point on this appeal is that the trial court erred in overruling the defendant’s motion to suppress evidence of identification obtained at a lineup held on October 11, 1971. The defendant maintains that the lineup was unnecessarily suggestive because the other three individuals in the lineup differed greatly from the defendant in their physical characteristics and for the further reason that Mrs. Powers testified that she had previously seen two of the other individuals prior to the lineup. The defendant filed a motion to suppress the identification at the lineup and a hearing was held thereon prior to trial., We agree with the defendant that a pretrial lineup should be carefully scrutinized where a claim has been raised that a lineup was unnecessarily suggestive or conducive to irreparable mistaken identification. (State v. McCollum, 211 Kan. 631, 507 P. 2d 196.) Here after a full evidentiary hearing the trial court found that the victim, Mrs. Powers, had identified the defendant on the scene independently of the lineup. It is undisputed that the defendant was represented by his counsel at the time the lineup was conducted. The trial court further found that under the totality of the circumstances the lineup was not unnecessarily suggestive. We have carefully considered the record presented at the evidentiary hearing on the motion to suppress and we have concluded that the findings of the trial court are supported by the evidence and should not be disturbed. The defendant next contends that the trial court erred in admitting into evidence documentary evidence of a prior conviction of the defendant of first-degree robbery in Missouri. The record does not disclose defendant’s objection tó the relevancy of the prior conviction, nor is exhibit No. 1 reproduced in the record for the court’s consideration on this appeal. As originally offered by the state exhibit No. 1 apparently consisted of a photograph of the defendant Carney, a fingerprint record, a signature card, a copy of the journal entry, the authentication of the journal entry from the Missouri court, and a commitment report showing vital statistics of the defendant including the names and addresses of his relatives and other information. The defendant’s objection to exhibit No. 1 as contained in the record goes to the number of documents contained in the exhibit, not to its relevancy to prove identity. He objected particularly to the fingerprint record and urged that it was sufficient for the state simply to offer the journal entry and the authentication of the signature appearing on the certificate. The trial court deleted certain portions of exhibit No. 1 and reduced it to a photograph of Camey, a fingerprint record showing his signature, and the authenticated journal entry. We cannot say that the trial court abused its discretion in admitting exhibit No. 1 restricted to the documents just mentioned. We find no reversible error on this point. The defendant’s next point concerns the admissibility of state’s exhibit No. 2 consisting of currency and coins in the amount of $51.40 which the testimony showed was taken from the pocket of the defendant at the time he was arrested. Mrs. Powers had testified that at the time the robbery of the liquor store occurred the robber was handed $50 in cash, a part of which was secured together by a paper clip. When the defendant Camey was arrested there was discovered a wad of bills in his left front pocket consisting of $1 bills, a $10 bill, and three $5 bills, some of which were clipped together with a paper clip. Defendant objected to the admission of exhibit No. 2 on the grounds that a proper chain of custody had not been established by the prosecution. It is true that the chain of custody was not as good as it might have been. The evidence showed that deputy sheriff Turner had removed the wad of bills from the defendant’s person and delivered the money to an undetermined sheriff’s dispatcher in the Leavenworth jail. This was at 12:05 p. m. on October 8. That afternoon Detective Acker obtained from some unnamed Leavenworth jailer the money which he understood had been taken from the defendant’s person. This money was offered as state’s exhibit No. 2. We believe that any defect in the chain of custody under the circumstances here should go to the weight rather than to the admissibility of the evidence. Here no attempt was made to show that the serial numbers of the bills taken at the robbery and those taken from defendant’s person at the time he was arrested were the same. The close correlation between the amount of money taken and the amount of money found on the defendant’s person was simply circumstantial evidence pertaining to the issue of identity. We cannot find that the trial court abused its discretion in the admission of this exhibit into evidence. The defendant’s final point is that the court erred in not allowing defense witness, William Gilliard, to testify in regard to> money which he allegedly gave to the defendant on the day of the robbery. The court excluded this testimony because Gilliard had violated the court’s order separating witnesses. The record shows the separation rule was invoked at the request of the defendant’s counsel. All witnesses were directed to remain out of the courtroom during the testimony of other witnesses. Gilliard was the defendant’s roommate and remained in the courtroom listening to all of the state’s testimony, which fact the defendant and his counsel obviously knew. Gilliard had previously been designated as a witness to testify in support of the defendant’s plea of alibi. After the state rested its case, counsel for the defendant advised the court that Mr. Gilliard would testify that he had given some money to the defendant on the morning of the robbery. On objection by the state the trial court ruled that Gilliard could testify in regard to the defense of alibi but that it would be an unfair advantage to allow Gilliard to testify as to sums of money delivered to the defendant on the morning of the robbery in view of the fact that Gilliard had remained in the courtroom and heard the testimony of the state’s witnesses pertaining to the exact amount of money taken in the robbery and the exact amount of money recovered on the defendant’s person at the time he was arrested. Following this ruling Gilliard testified as to the defendant’s alibi but was not permitted to testify in regard to his giving money to the defendant. We cannot say under the circumstances here that the trial court abused its discretion in refusing to- permit Gilliard to testify after Gilliard, with the defendant’s full knowledge, had violated the separation order. The defendant on this appeal argues vigorously that it was prejudicial error as a matter of law for the court to exclude Gilliard’s testimony in view of our decision in Davenport v. Ogg., 15 Kan. 363. In Davenport the court made a separation order excluding from the courtroom- during the trial all witnesses except such witness as may at any -time be called in for examination. One of the plaintiff’s witnesses, without the knowledge or consent of plaintiff or his attorney, violated the order and remained in the courtroom during the entire proceedings. We held that any person violating a separation order could be punished therefor for contempt, but that it was error for the court to exclude his testimony simply because of such violation where there was nothing in the record to show that the party himself had participated in the guilt of the witness. In Davenport, however, it is pointed out that if the party who wishes to examine the witness abets the violation of the order of the court, the evidence of the witness may be excluded by the court. Here the record before us discloses that the witness Gilliard was the defendant’s roommate and that the defendant and his counsel were fully aware that Gilliard remained in the courtroom and heard the state’s testimony in the face of the separation order which defendant had requested. Under the circumstances we cannot say that the trial court abused its discretion in excluding the testimony. Our more recent cases hold that the violation of a court order separating the witnesses in a criminal case does not of itself disqualify a witness and the trial court in its discretion may permit the witness to testify. (State v. Blocker, 211 Kan. 185, 505 P. 2d 1099.) Ordinarily where a witness violates a separation order without the knowledge of the party or his counsel, the witness should be permitted to testify and it is only where the evidence shows that the party who desires to call the witness knew and participated in the violation of the separation order that the court should exclude the witness’s testimony. Under the circumstances shown in the record here we cannot say that the trial court abused its discretion in excluding the proffered testimony. The judgment is affirmed. Fromme, J., not participating.	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The opinion of the court was delivered by Kaul, J.: Defendant, Glenn. Gene Rasler, appeals from convictions by a jury of aggravated assault (K. S. A. 21-3410) and unlawful possession of a firearm (K. S. A. 21-4204). Defendant was acquitted on a count of aggravated battery. On March 18, 1973, about 1:30 a. m., Rodney Trowbridge and his family were driving south on 1-235 By-pass in Wichita when their automobile was side-swiped by a blue-green Pontiac. Mr. Trowbridge chased the automobile for some distance hoping to get its license number. The Pontiac exited 1-235 at the Central Street exit and, after running two stop signs, finally came to a stop. Trowbridge stopped immediately to the rear. The driver of the Pontiac got out and walked toward the Trowbridge automobile which was stopped a short distance behind the Pontiac. Defendant was later identified as the driver of the Pontiac. As defendant neared the Trowbridge automobile he removed a handkerchief which had been covering his left hand and revealed a pistol which he pointed at Trowbridge. Trowbridge, who was a gun collector, described the pistol as being a small caliber, over and under derringer with about a two and one-half inch barrel. Seeing the weapon in defendant’s hand Trowbridge immediately accelerated his automobile and drove to a nearby gas station where he called the police. As Trowbridge sped away defendant fired two shots, both of which struck the Trowbridge automobile. Both Mr. and Mrs. Trowbridge mentally noted the license number of defendant’s automobile and, after stopping at the gas station, Mrs. Trowbridge wrote the number on a page of her checkbook. About an hour after he had accosted the Trowbridges, defendant was involved in another affray at Frankie’s lounge in Wichita. There was evidence that at the lounge defendant, for no apparent reason, shot one Jonnie E. Clark in the leg. About an hour after the shooting at Frankie’s lounge, Officer William C. Naholnik of the Wichita Police Department observed defendant in a 1964 Pontiac bearing the same license number as that reported to the police by Trowbridge. Officer Naholnik arrested defendant. At the time of the arrest defendant did not have a .gun in his possession. Naholnik observed that the right front portion of defendant’s automobile had suffered some scraping damage. At trial the defense was. alibi and defendant produced several friends and relatives who testified in his .behalf. On appeal defendant first 'contends that the trial court erred in not sustaining his motions for judgment of acquittal which were made at the close of the state’s evidence and at the close of all the evidence. Defendant 'argues these motions should have been sustained 'because the state’s evidence was insufficient to 'allow the case to go to the jury. In the light of the evidence in this case defendant’s contention is without merit. Judgment of acquittal on the court’s own motion or on the motion of defendant is provided for by K. S. A. 22-3419. This statute was examined and the tests to be applied 'by the trial court in passing upon a motion for judgment of acquittal are set out in State v. Gustin, 212 Kan. 475, 510 P. 2d 1290, wherein we held: “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 draiw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable douibt. If he 'concludes guilt beyond a reasonable doubt is a fairly possible result, he may 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.) It is not necessary to recite in detail what was shown by the state’s evidence, inasmuch as a partial statement thereof adequately illustrates the correctness of the trial court’s action. The evidence establishes that the description given by the Trowbridges of the automobile which side-swiped them fits defendant’s automobile and the license number, as reported to the police and noted in writing by Mrs. Trowbridge, was that of defendant’s automobile. The defendant was identified as the driver of the Pontiac which struck the Trowbridge vehicle. Paint was found on the Trow-bridge automobile which matched the paint on defendant’s automobile. At the trial both of the Trowbridges identified defendant. There was also evidence that earlier in the evening defendant, while in a club known as the Pirate’s Cave, possessed and displayed a small handgun similar to that described by Trowbridge. From this evidence the jury could justifiably infer that defendant did unlawfully possess a firearm and could reasonably conclude that defendant was, beyond a reasonable doubt, guilty of aggravated assault. Defendant’s next contention is that the trial court erred in not requiring the state to elect which charge (aggravated assault or aggravated battery) it was relying upon to prove the firearm possession charge. An election is required only when multiple related charges, based upon an identical basic element, are joined in one prosecution. (City of Junction City v. Snow, 193 Kan. 62, 392 P. 2d 115.) The purpose of requiring an election is. to prevent injustice and- hardship on the defendant in preparing a defense against a nonspecific charge. (State v. Benson, 207 Kan. 453, 485 P. 2d 1266.) The firearm charge challenged was both specific and self-sustaining. It properly charged the commission of a separate and distinct crime which neither depended upon nor duplicated any other charge. An election was not necessary. Even though the two incidents in which the defendant used the pistol were separate offenses they were, nevertheless, parts of another single separate transaction, i.e. the single continuing possession of a firearm. Joined, in a somewhat circular fashion, with defendant's “election” argument is the assertion that the trial court erred in not severing the firearm possession charge from the other two charges. K. S. A. 22-3202 (1) reads: “(1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” All events relevant to the instant appeal occurred within a five horn- time span and involved the possession and use of a firearm by defendant. In State v. Thomas, 206 Kan. 603, 481 P. 2d 964, we stated: “It has long been the rule in this jurisdiction that where separate and distinct felonies are charged in separate counts of one and the same information and all of the offenses are of the same general character, requiring the same mode of trial, the same kind of evidence and the same kind of punishment, the defendant may be tried upon all of the several counts of the information at one and the same time. . . .” (p. 607.) When examined within this criteria it is apparent that the charges here considered fall within the purview of the statute and were, therefore, properly consolidated. (See, also, State v. Cameron & Bentley, 216 Kan. 644, 533 P. 2d 1255; and State v. Wheeler, 215 Kan. 94, 523 P. 2d 722.) Defendant next challenges the trial court’s instruction delineating the elements of unlawful possession of a firearm. Defendant argues this instruction was defective because it did not state the exact hour of the day the alleged firearm violation occurred. Defendant also argues that this instruction should have admonished the jury to disregard the testimony of two witnesses, Sandy Jones and Myrel Wheeler, concerning defendant’s possession of a firearm at times other than the 1:30 to 2:30 a. m. time span during which the other crimes were alleged to have been committed, because such testimony brought in evidence of other crimes irrelevant to the instant charge. The initial portion of defendant’s argument is premised upon an unfounded assumption that specific time is an essential element in a firearm possession charge. The instruction given was PIK [Criminal] 64.06. It is in the language of the applicable statute, K. S. A. 21-4204 and fully sets out the elements of the felony offense of unlawful possession of a firearm. We find no error in this regard. We have difficulty in fully understanding defendant’s position with respect to his contention that the instruction in question should have included an admonition to disregard the testimony of Jones and Wheeler pertaining to defendant’s possession of a firearm at times other than 1:30 to 2:30 a. m. on March 18. The state maintains defendant did not object to the instruction on this ground and, thus, under K. S. A. 22-3414 (3) is barred from claiming error on appeal. Nevertheless, we have examined defendant’s argument. It appears that defendant claims a limiting instruction should have been included since the testimony of Jones and Wheeler disclosed another offense. The testimony in question was relevant on the possession charge and, thus, was admissible independently of K.S.A. 60-455. (State v. Ralls, 213 Kan. 249, 515 P. 2d 1205.) In State v. Martin, 208 Kan. 950, 495 P. 2d 89, we held: “Where evidence has a direct bearing on and relation to the commission of an offense itself, it is admissible without a limiting instruction. “Evidence which is otherwise relevant in a criminal action is not rendered inadmissible because it may disclose another or independent offense.” (Syl. ¶¶ 2 and 3.) Relying upon PIK[Criminal] recommendation 52.19 that no separate instruction on. alibi be given, defendant claims error in the trial court’s submission of an alibi instruction and then further complains that the instruction given included a “rigid scrutiny” provision such as that appearing in an alibi instruction discussed in State v. Murray, 210 Kan. 748, 504 P. 2d 247. As was the case in Murray, defendant failed to object to the instruction at trial and since the giving of the instruction was not clearly erroneous the question is not to be considered on appeal. (K.S.A. 22-3414 [3]; State v. Murray, supra.; and State v. Scott, 210 Kan. 426, 502 P. 2d 753.) As previously indicated, in State v. Skinner, 210 Kan. 354, 503 P. 2d 168, and State v. Murray, supra, we approve of the PIK Committee’s recommendation that there be no separate instruction on alibi. In his next point defendant, who had previously been convicted of unlawfully possessing a firearm, contends the trial court erred in instructing the jury it could consider defendant’s prior conviction for the purposes of showing motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Defendant objected to this instruction claiming no foundation had been laid for it, and that the previous conviction lacked similarity and, thus, relevancy to the crimes charged. At trial defendant did not object ti> the general form or scope of the instruction. As previously mentioned, defendant’s defense was alibi. The very nature of an alibi defense puts the defendant’s identity squarely in issue. Inasmuch as the basic element of identity was an integral issue in this case, defendant’s arguments concerning lack of foundation and relevancy must fail. Although we have disapproved the giving of a “shotgun” type of 60-455 instruction (State v. Cross, 216 Kan. 511, 532 P. 2d 1357; and State v. Bly, 215 Kan. 168, 523 P. 2d 397), the facts of this case do not indicate that defendant was prejudiced thereby. Inasmuch as defendant did not object to the scope of the instruction given, the propriety of the instruction on that ground is not before us. We do, however, reiterate our caveat to the district courts that instructions concerning the purpose of evidence of similar offenses should only include those elements of 60-455 which appear to be applicable under the facts and circumstances. In his last point defendant argues the court erred in admitting into evidence the page from Mrs. Trowbridge’s checkbook on which she had written the license number of defendant’s automobile. We find no merit in defendant’s unsubstantiated contentions that a proper chain of custody had not been established for this evidence or that it was self-serving. We have carefully examined all of the contentions raised on appeal and find that no reversible error is shown. The judgment is affirmed. Fromme, J., not participating.	[ -16, -29, 112, -116, 27, -22, 58, -104, -6, -57, 99, -77, -95, -53, 5, 121, 99, -3, -43, 105, -99, -77, 39, -23, -10, 51, 121, -63, -110, -55, -4, -41, 28, 112, -54, 29, -26, 72, -91, 92, -50, 4, -119, 112, 80, -46, 96, 59, -26, 15, -15, 14, -13, 46, 20, -29, 9, 56, 75, -87, -48, -7, -55, -123, -33, 18, -77, 50, -66, 37, -8, 11, -103, 49, 8, -4, 51, -94, -112, 116, 109, -119, 12, 100, 34, 0, 113, -53, 104, -119, 14, 123, -121, -121, 24, 121, 1, 13, -97, -97, 126, 16, 2, -4, 95, 95, 17, -28, 3, -49, -68, -111, 79, 48, -126, -54, -29, -123, 32, 100, -49, 102, 86, 117, 82, -101, 86, -106 ]
The opinion of the court was delivered by Prager, J.: This is a workmen’s compensation appeal. The question involved is whether the appellant, Leroy Smith, was covered by the Kansas Workmen’s Compensation Act when he was injured while working in Oklahoma. The appellees are Smith’s employer, McBride and Dehmer Construction Company, and its insurance carrier. A determination of the issue presented depends on whether the contract of employment was made in Kansas. In K. S. A. 44-506 it is provided that the Kansas Workmen’s Compensation Act shall apply to injuries sustained outside the state where the contract of employment was made within the state, unless such contract otherwise specifically provides. Here the employment contract did not by its terms negative the application of the statute. The facts in this case are not in dispute and are basically as follows: On September 22, 1971, the appellant Smith sustained a serious injury to his left eye while working as a laborer for McBride and Dehmer Construction Company at a job site in Oklahoma. The parties agree that the appellant’s injury was accidental and arose out of and in the course of his employment. Following the injury the appellant filed claims with both the Workmen’s Compensation Director of the state of Kansas and the State Industrial Court for the state of Oklahoma for compensation benefits as a result of his injury. The appellees admit the jurisdiction of the industrial court of Oklahoma and agree that appellant is entitled to benefits under the Oklahoma statute. In the Kansas proceeding the appellees denied that the parties are covered by the Kansas Workmen’s Compensation Act. If the Kansas act applies the compensation benefits to be obtained by the appellant will be substantially higher. To determine whether or not the Kansas act applies we must carefully consider the circumstances surrounding the hiring of the appellant. Leroy Smith resides in Liberal, Kansas. McBride and Dehmer Construction Company was engaged in construction at a job site in Turpin, Oklahoma. Leroy Beatty was the construction foreman for appellee at the job site. Beatty was in need of some laborers to assist his carpenters. Beatty told one of the laborers, Lenroy Bowie, to notify the appellant that if appellant wanted to go to work, to show up at the job site at Turpin. Bowie so advised appellant who proceeded to Turpin, Oklahoma, on the following day and was immediately put to work. The record shows that prior to being hired on this occasion appellant worked for a plumbing subcontractor but had not been employed directly by McBride and Dehmer. Leroy Beatty the appellee’s superintendent testified in regard to the hiring as follows: “Q. Okay. And how is it that you happened to mention Mr. Smith to this other employee? “A. Well, I knew he was out of work and he had been working for the plumbers and they had got through with him and I didn’t get to see him before he left. And I knew he was out of work. And so I told him to tell him if he wanted to go to work to show up at the job-site and you would hire him down at Turpin. “Q. You told this other colored boy to tell Mr. Smith if he wanted to go to work to show up at the job-site and you would hire him? “A. Yeah. “Q. Did you authorize this other boy to make any offer on behalf of McBride & Dehmer Construction on behalf of employing Mr. Smith other than you have just told me? “A. No. “Q. When in relationship to when you hired Mr. Smith at the job-site in Turpin did you have this conversation with this other colored boy about seeing if Mr. Leroy Smith wanted to go to work? “A. The day before. “Q. Okay. And I take it then the following morning Mr. Smith showed up at the job-site and that is when you hired him; is that correct? “A. Right. “Q. In as far as you were concerned when did Mr. Smith’s employment begin with McBride & Dehmer? “Mr. Greenleaf: I’ll object to the question as calling for a conclusion. “Q. You may go ahead and answer. “As far as I know the day that he filled out his employment record. “Q. ... I will ask now whether or not Mr. Bowie, if that be his name or not, but this other black person, had any authority to hire Mr. Smith for McBride & Dehmer? “A. No.” Lenroy Bowie, who acted as a messenger between Beatty and the appellant Smith, testified in the following manner. “Q. All right. Now, what did Leroy Beatty tell you about getting somebody to work for him? “A. He asked me just like that: ‘Is old Leroy working,’ referring to Leroy Smith. I said, ‘He hasn’t worked since we left from down here.’ He said, ‘Do you reckon he wants to work.’ I says, T imagine he does.’ He said, ‘Well, you all bring him to work tomorrow.’ “That’s the way that came about. “Q. Did he come to work the next day — Leroy Smith go to work for Leroy Beatty the next day? “A. Yes. The plumber and I went back in the afternoon and told him and he went on down there the next morning in his car. "Q. What did you tell Leroy Smith that evening? “A. I told him the other Leroy wanted him to come to work.” The appellant, Leroy Smith, gave his version of the hiring in the following language. “A. And Lenroy came by my house and asked me did I want to work and 1 said yes. He said, ‘Well, Leroy said to come down to Turpin and you can go to work.’ “So, well, I had my old car and I went down there the next morning and went to work. “Q. For Leroy Beatty? “A. Yes.” (Emphasis supplied.) It is the position of the appellant Smith that the contract of employment was made in Kansas. He claims that this was done through his indication to Lenroy Bowie at his home in Liberal that he would go to Oklahoma the following day to report for work. It is the position of the appellee McBride and its insurance carrier that the contract of employment was made in Oklahoma since the offer for employment was not accepted until the appellant arrived ready for work at the job site in Turpin, Oklahoma. The workmen’s compensation examiner found that the employment contract was made in Kansas and therefore the Kansas Workmen’s Compensation Act applied. The workmen’s compensation director and the district court held that the employment contract was made in Oklahoma and therefore the Kansas act has no application. This court has dealt with the question of where a contract of employment is made on several occasions. (Davis v. Jacob Dold Packing Co., 140 Kan. 644, 38 P. 2d 107; Pearson v. Electric Service Co., 166 Kan. 300, 201 P. 2d 643; Hartigan v. Babcock & Wilcox Co., 191 Kan. 331, 380 P. 2d 383; Morrison v. Hurst Drilling Co., 212 Kan. 706, 512 P. 2d 438.) In each of our cases we have generally relied upon the rule of the Restatement of Contracts, § 74, which states as follows: “A contract is made at the time when, the last act necessary for its formation is done, and at the place where that final act is done.” Pearson, Hartigan and Morrison all involved telephone conversations where an agent of the employer offered employment and the offer was immediately accepted orally by the injured employee. In each case we held that the oral acceptance of employment by the employee communicated to the employer was the last act necessary for the formation of the contract. In Davis the offer of employment was made by a letter directed to the claimant. This court held that it was indispensible to the formation of a contract for employment that the claimant manifest an acceptance of the offer. An undisclosed mental acceptance was held to be insufficient. In Davis this court found that the claimant manifested acceptance by going to New Mexico and in no other way. Presence at the place of work was the last act done necessary for formation of a contract of employment. We have considered cases from other jurisdictions on this issue but we find that the Kansas cases just discussed control the determination of this case. On the basis of the record before us it is clear that there is substantial competent evidence to support the finding of the district court that the employment contract was made in the state of Oklahoma. Under the factual circumstances here the trial court was justified in finding that Beatty’s offer of employment as relayed through Lenroy Bowie to Smith, fairly called for acceptance by Smith by reporting for work at Turpin, Oklahoma, at the job site where he would be hired. The last act done necessary to consummate a contract of employment was Smith’s reporting at the job site in Oklahoma and at that point a contract of employment was formed. The evidence was undisputed that his fellow employee, Lenroy Bowie, had no authority to receive Smith’s acceptance of employment on behalf of the appellee. The appellant Leroy Smith manifested his acceptance of employment by going to the job site at Turpin, Oklahoma, and in no other way. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Fontron, J.: This appeal is from a judgment canceling an oil and gas lease covering some acreage in Montgomery County, owned by Clarence and Doris Shaw, plaintiffs herein. On October 1, 1968, the Shaws leased the land for oil and gas purposes to Bruce D. Benson for a period of five years and as long thereafter as oil and gas were produced. At that time there were seven producing oil wells on' the premises and one shallow disposal well. For the most part, the lease appears similar to those in general use throughout the oil industiy in this area, although no date was provided for commencing a well. Under the lease the Shaws were entitled to a one-eighth royalty. Mr. Benson assigned the lease to Patrick E. Henry, Jr., the defendant and appellant on November 19, 1969, reserving a one-sixteenth overriding royalty. Some three months later Mr. Henry received a “cease and desist” letter signed by Robert E. Williams, Area Geologist. The communication bore the letterhead of the Kansas State Department of Health, was dated February 16,1970, and reads as follows: “Mr. Patrick E. Henry, Jr. Box 5 Dexter, Kansas 67038 Re: Clarence Shaw Lease SE K Sec 1, T35S, R16E Montgomery County, Kansas Dear Mr. Henry: A routine inspection of the above captioned lease revealed that a well is being pumped allowing the produced water to flow to a pond at the rate of 100 barrels per day, and there is no existing permit for the use of the pond. During a conversation with Mr. Shaw, we found that you are now the operator of this lease. In accordance with Kansas Statute 65-171d, as amended in 1967, the Kansas State Board of Health is the licensing agency for oil field brine storage ponds, and the use of a pond without a permit is in violation of this Statute. We ask that the use of this pond be discontinued immediately since the amount of water involved is far in excess of the amount that could be handled in a pond. We also have had a history of water pollution in this area due to the loose underlying river gravel. If you wish to produce these wells, we recommend a disposal well into the Arbuckle formation, any other form of water disposal will be unacceptable due to the volume of brine and the nature of the underlying sediment. Sincerely yours, /s/ .Robert E. Williams Robert E. Williams Area Geologist” Upon receipt of this ukase from the Department of Health Mr. Henry ceased all production from the lease. Henry’s complete cessation of production displeased the Shaws who filed the present action against both Henry and Benson July 28, 1970, seeking to cancel the lease. Trial was had to the court which ultimately entered findings of fact to the following effect: that Henry operated the lease as a reasonably prudent operator and within the lease terms concerning drilling or payment of rentals; that he invested approximately $12,000 to develop the lease; that he was notified by the Department of Health to discontinue use of salt water disposal ponds and to install a salt water disposal well into the Arbuckle formation; that on receipt of the notice Henry ceased all production on the lease; that to properly operate the lease a salt water disposal well will have to be drilled into the proper formation to comply with the laws of Kansas; that Mr. Henry has finances available and is ready, able and willing to drill such a well within 30 days and to develop the lease to its producing potential within 180 days; and that Henry had caused $650 damages to the Shaws’ wheat crops during 1970 and 1971. The court concluded that a lessee operator of an oil and gas property has a duty to operate existing wells to the mutual profit of the landowner and himself, under an implied covenant which exists during and after the primary term of the lease; that Henry should be given the right to drill and equip a salt water disposal well to the Arbuckle formation and to develop, equip and produce the existing wells within 180 days from date of judgment (which turned out to be February 2, 1973); that on failure so to do the lease should be canceled, but on Henry’s compliance the lease should be in full force during its primary term and as long thereafter as oil and gas is produced in paying quantities; and that the Shaws have judgment for $650. The court also found generally in favor of Mr. Benson and he is not a party to this appeal. March 23, 1973, the plaintiffs filed a praecipe for special execution and the sheriff levied execution on Henry’s oil and gas leasehold estate. The property was sold at public sale to Mr. and Mrs. Shaw, May 14,1973, for the sum of $500. Henry did not learn of those proceedings until late May or early June, and on June 8, 1973, he filed a motion to void the sale. On July 6, 1973, the trial court heard Henry’s motion and set the sale aside as being premature. At the same time the court granted an extension of time to August 7, 1973, for Henry to comply with the February 2 order. On August 6, the day before the extension of time expired, Henry’s counsel filed an affidavit reciting that Mr. Henry had completed a producing oil well from the Arbuckle formation the day before, August 5, 1973. Eight days later the Shaws filed a motion alleging that Henry had failed to comply with the court’s order of February 2, 1973, and that the lease should be canceled. A hearing on the plaintiffs’ last motion was had on September 7, 1973, at the conclusion of which the trial court ordered the lease canceled. Notice of appeal was filed the same date. It appears to us that basically two questions are presented for answer: (1) Was the appeal taken in time and (2) was there a breach of implied covenant to develop the lease warranting cancellation? The defendant says “yes” to the first and “no” to the second, while the plaintiffs would turn the answers around, saying “no” to the first point and “yes” to the second. Under Kansas practice an appeal may be taken to this court from a final decision of a district court by filing a notice of appeal with the clerk of the district court within thirty (30) days from the entry of judgment. (K. S. A. 60-2102, 2103.) The dispute here is over the date when final judgment was entered. The plaintiffs contend final judgment was entered February 2, 1973, when the court ordered that a disposal well would have to be drilled to the Ar-buckle in order to operate the lease and gave Mr. Henry 180 days to drill and equip such a well. To support this argument, plaintiffs say all points raised by defendant refer to the February 2 order. In response, defendants say the court did not “cancel” the lease until September 7, 1973, but exercised continuing jurisdiction over the matter until that date, even granting Mr. Henry additional time to comply with its order. If plaintiffs’ position is correct, the appeal comes too late; if defendant is right, the appeal was taken in time. The question as to whether the trial court’s decision of February 2, 1973, was final is not entirely free from doubt or ambiguity. However, we feel it unnecessary to decide the point for we believe the controversy may better be settled on the merits. In its journal entry the trial court found, in effect, that the operator of an oil and gas lease has a duty to operate existing wells to the mutual profit of both the lessee and the landowner. The same finding is contained in the court’s conclusions of law, and we believe it generally expresses the law in this area. In Cohen, Implied Covenants in Kansas Oil and Gas Leases, 9 Kansas Law Review 7, the author notes six implied obligations arising from the lessor-lessee relationship: to drill a well, to develop the leasehold, to explore the leasehold, to operate the leasehold efficiently, to protect the leasehold from drainage and to market the minerals produced. A number of oil and gas cases have made their way to this court pertaining to the implied covenant to develop an oil and gas lease- hold. It will not be necessary to cite them all; a few, we believe, will suffice. In Temple v. Continental Oil Co., 182 Kan. 213, 320 P. 2d 1039, the court, speaking through Mr. Justice Schroeder, said: “The doctrine in this state is now well established that what is required of a lessee, under the implied covenant to develop an oil and gas lease, is reasonable diligence in doing what would be expected of an operator of ordinary prudence, in the furtherance of the interests of both lessor and lessee. (Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P. 2d 95; Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P. 2d 810; and Berry v. Wondra, 173 Kan. 273, 246 P. 2d 282.) Under this rule neither the lessor nor the lessee of an oil and gas lease is the sole judge of what constitutes prudent development of the tract. . . .” (p. 220.) The Temple case was soon followed by Stamper v. Jones, 188 Kan. 626, 364 P. 2d 972, where the same legal principles were generally expressed. In Renner v. Monsanto Chemical Co., 187 Kan. 158, 354 P. 2d 326, we discussed the standards which bind both the lessor and the lessee. On page 168 we had this to say: “. . . Whether a lessee has performed his duties under the implied covenants is a question of fact. In the absence of a controlling stipulation, neither the lessor nor the lessee is the sole arbiter of the extent to which, or the diligence with which, the operations shall proceed. The standard by which both are bound is what an experienced operator of ordinary prudence would do under the same or similar circumstances, having due regard for the interests of both (Greenwood v. Texas-Interstate. P. L. Co., 143 Kan. 686, 56 P. 2d 431; Harris v. Morris Plan Co., supra [144 Kan. 501, 61 P. 2d 901]; Myers v. Shell Petroleum Corp., supra [153 Kan. 287, 110 P. 2d 810]; Fischer v. Magnolia Petroleum Co., supra [156 Kan. 367, 133 P. 2d 95], Syl. ¶ 4; Temple v. Continental Oil Co., supra).” Our question, then, is whether the record contains substantial competent evidence to support the finding of the district court. (Vonfeldt v. Hanes, 196 Kan. 719, 723, 414 P. 2d 7.) We believe the question must be answered in the affirmative. As we have said, the lease contains no provision for commencement of a well within any specified time or, in the alternative, for payment of delay rentals. There were, however, seven producing wells on the leasehold when Mr. Henry took over and as to these producing wells, as well as to leasehold itself, the duty of efficient management and operation was owed. It was disclosed by the testimony given by Mr. Williams at the trial, as well as by his letter of February 16, 1970, that before those wells could be produced, a disposal well must be provided to dispose of the salt water they caused. Mr. Williams testified “the only thing to do with that kind of salt water is to put it back into a disposal well or back into the same formation.” The defendant has done neither, and so far as the record shows, none of the seven wells have been producing at any time since they were closed following receipt of the Williams letter. Although we have been unable to find a case with facts identical to the case at hand, we can envisage few if any situations which would more greatly impede the reasonable and efficient operation of an oil and gas leasehold than would the failure to dispose of the salt water arising from existing wells, as required by order of the responsible state agency. Under the provisions of K. S. A. 1974 Supp. 65-171d the State Board of Health is authorized to protect the beneficial uses of Kansas waters; to protect them from pollution by oil, gas, salt water injection wells or 'underground storage reservoirs; to issue permits for storage or disposal of salt water and other pollutants; and to deny or revoke permits for salt water disposal ponds and facilities. The trial court found it was necessary to drill a salt water disposal well in order properly to operate the lease. The court also found that Mr. Henry, as he himself stated, was ready, able and willing to d ill such a well within 30 days. Acting upon this finding the trial court, quite properly, gave Mr. Henry time in which to drill the disposal well, and thus protect the leasehold (Howerton v. Gas Co., 82 Kan. 367, 108 Pac. 813; Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005), the time being set, not at 30 days but at 6 months. We consider the time not unreasonable. Mr. Henry places great stress on the fact he has drilled two producing oil wells, the first in July, 1971, and the second, August 5, 1973. The significance of these wells must be considered in the light of Henry’s overall procrastinations. Production was shut down entirely on receipt of Williams’ letter of February 16, 1970. Five months later no action had been taken to provide a disposal well or to bring the lease back into production and this lawsuit was filed July 28, 1970. For an additional twelve months the lease lay dormant and then, in July, 1971, Henry drilled what he said was to be a disposal well, but the well was a producer, so he said. After July, 1971, no further efforts were made to- provide a disposal well, and eventually the case came on for trial November 7, 1972, some fifteen months later. At the trial Mr. Henry told the court he could drill a salt water disposal well within thirty days, whereupon the court granted him six months to do' so, the time to run from February 2, 1973. But again Mr. Henry took no action for several months, and it was not until August 5, two days before his time expired, that he completed the second well — a producer also, not a disposal well. To the present time, as far as this court is advised, no disposal well has been drilled, nor have any of the original seven lonely little wells been given the chance to produce their oil. Mr. Henry’s procrastinating and dilatory ways can be seen in his evasive tilting with the trial court during final hearing of this matter, September 7,1973. We are of the opinion that the trial court did not err in canceling the oil and gas lease, after first giving the lessee, Mr. Henry, six months to provide a disposal well and bring the lease back into production. The judgment of the court below is aflSrmed.	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The opinion of the court was delivered by Fontron, J.: This appeal emanates from a conviction of aggravated assault under K. S. A. 21-3410 and the imposition of a sentence of from one to ten years. The incident giving rise to the criminal charge occurred Octo ber 13, 1973, during a street fracas in Russell, Kansas. Two groups were involved, three young black brothers on one side, members of the Murphy family, and the defendant and his friend Leslie Rum-back, both white, on the other. By way of background, the defendant and Rumback had been engaged in working on the defendant’s car earlier in the day. After completing the job that evening they purchased a pack of beer and drove into the country to test the car. They returned to Russell somewhere around 10:30. At this time George Murphy, who was sixteen years of age, was driving around town with his girl, who was fifteen. According to George, the defendant and his companion began to follow him, and one of them threw a bottle which hit his car. George drove home, followed by the two men, and told his two brothers, Gregory and Edward, what had happened. Profanities were yelled back and forth, it being disputed as to who initiated the uncomplimentary name calling. After the exchange of obscenities the three Murphys decided to go out and talk with defendant and Rumback to find out what they wanted. In the interest of prudence, they provided themselves with wine or coke bottles. The defendant and his friend repaired to the former s home where Schoenberger procured either a butcher knife or a steak knife and Rumback, a knife with a broken point. Apparently the two sets of putative combatants began looking for each other, although the record is somewhat vague as to their movements up to the time the Murphys drove their car around a comer, pulled over to the curb and stopped. At this juncture the Schoenberger car was following the Murphy car and it, too, pulled around the comer and over to the curb where it came to a stop behind the Murphys’ vehicle. All occupants left their cars, Schoenberger and Rumback with knives, and at least two of the Murphys with bottles. As the defendant emerged from his car, according to the Murphys, he said something to the effect that “We are going to spill some niggers’ guts tonight.” Schoenberger denied saying these exact words. He phrased what he said this way: “It looks like we are going to have to fight some niggers.” From this point on there is some conflict in the testimony as to what occurred. However, it appears there was little if any physical contact between members of the groups except as between the defendant and Edward Murphy, and there are contradictory versions of that encounter. Nevertheless, the evidence is persuasive that Schoenberger went after Edward Murphy with knife in hand, made several “swipes” at Edward which were sidestepped, and was restrained only when Edward was able to grab hold of the defendant’s hand which held the knife. The appearance of George Murphy with a loaded double-barrelled shotgun, which he had run home to pick up, put an end to the donnybrook. Schoenberger and Rumback retired from the scene in haste while the Murphys, after hurling a bottle against defendant’s car, repaired to the police station. Four points of error are urged. First, it is said the trial court erred in overruling the defendant’s motion to exclude the witnesses from the courtroom during the trial. In support of this motion, defense counsel informed the court that conflicting stories were told at the preliminary hearing and he thought the witnesses would give conflicting accounts at the trial. This court adheres to the generally prevailing rule that the exclusion of witnesses during trial rests within the sound discretion of the trial court. (See State v. Guffey, 205 Kan. 9, 15, 468 P. 2d 254, and authorities therein cited.) Restating this rule in State v. Theus, 207 Kan. 571, 485 P. 2d 1327, we said: “Generally speaking, the question of whether to exclude witnesses or not, and what exceptions may be made, is discretionary with the trial court in the absence of a showing of prejudice. . . .” (p. 577.) Our attention has not been called to any prejudice resulting from the court’s ruling and our search of the record reveals none. The defendant was represented at the trial by the same counsel who appeared in his behalf at the preliminary hearing, and we presume he was well acquainted with the testimony which the witnesses had to offer. No reason is suggested why counsel would not have been fully capable of examining prosecution witnesses with respect to contradictions or inconsistencies occurring in their testimony. We are well aware of the following statement which is found in the Guffey opinion: “. . . [Ofn proper application, timely made, exclusion of witnesses is generally allowed and we believe it to be the better practice.’’ (p. 16.) The observation is as timely today as when penned by Mr. Justice Kaul in the Guffey case. Where a motion for exclusion of witnesses has been filed seasonably, and there are no exigent circumstances which necessitate their presence in the courtroom, we believe it desirable that the motion be sustained. However, as previously indicated, there is naught in the present record to suggest that any witness was influenced in his testimony by the presence of other witnesses in the courtroom. There is, in other words, a complete absence of any showing of prejudice (McCrossen v. United States, 339 F. 2d 810) and we cannot say that discretion was abused. In the second place, defendant asserts the court erred in failing to define “intentionally” as that word was used in instruction number one. That particular instruction was based on PIK 56.14 and it sets out what the state was required to prove to establish its case. The first claim the state must prove, said the court, was “that the defendant intentionally attempted to do bodily harm to Edward Murphy.” We find little merit in the defendants contention. “Intentionally” is a word in common everyday usage. It threads itself through all walks and areas of life, ordinary as well as specialized. Both lay and legal dictionaries give its meaning as purposely, voluntarily, designedly, willfully. It connotes lack of accident; it denotes the exercise of free will. So widespread is its usage that we have the notion its meaning is readily comprehensible to the average person without further definition or refinement. It can be said that the record in this case nowhere reflects that members of the jury lacked understanding of the term or were confused as to its import. For his third ground of error the .defendant points to the court’s refusal to give a self defense instruction. He allots only three lines to this point in his brief, and cites no authority. On oral argument he was equally terse. Even so, the point deserves brief attention. As a general rule we believe it may be said that where the accused has not retreated from or avoided the combat but has entered the affray willingly, he is in no position to invoke the doctrine of self defense. (State v. Baker, 280 Minn. 518, 160 N. W. 2d 240; Lewey v. State, 28 Ala. App. 245, 182 So. 98.) However, even where the conflict is mutual, an instruction on self defense should be given where it comes within the range of the evidence. (People v. Sherman, 14 Mich. App. 720, 166 N. W. 2d 22.) In refusing to instruct on self defense, the trial court commented that the white boys were the pursuers. The evidence, indeed, leads to this conclusion. Schoenberger conceded he was following the Murphys; that he had the choice, of turning the comer and following them or of going on down the street; that there was nothing to prevent him from leaving; and that it took a shotgun to make him and Rumback leave the scene. Looking at the overall situation we find no occasion to fault the court in rejecting an instruction on self defense. The posture of Schoenberger can be described only as one of aggression throughout the entire encounter. Finally, the defendant argues, the court was wrong in refusing to instruct on simple assault as a lesser included offense of aggravated assault. The rule requiring an instruction on a lesser included offense becomes applicable only where it is clearly called for by the evidence and where the jury might reasonably have convicted the accused of a lesser crime had it been instructed with regard thereto. (State v. Masqua, 210 Kan. 419, 424, 502 P. 2d 728, and cases cited therein.) Here, the evidence was uncontradicted (1) that defendant was armed with a knife during the fracas; (2) that he made several swipes at Edward; and (3) that he was deterred by Edward grabbing his hand and arm. We deem the evidence compelling that whatever assault was made on Edward was accompanied by a deadly weapon, to wit, a large knife, and thus was aggravated in its very nature. (K. S. A. 21-3410.) Under these circumstances an instruction on simple assault was not required, and the court did not err in rejecting the defendant’s request therefor. We find no prejudicial error in this case and the judgment of the trial court is affirmed.	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The opinion of the court was delivered by Owsley, J.: Defendant, Theodore Leonard Irving, II, appeals from a criminal conviction of promoting prostitution, a class A misdemeanor (K. S. A. 21-3513), punishable by a term of confinement in the county jail not to exceed one year and a fine not exceeding $2,500. After being tried and found guilty in the Wyandotte County magistrate court, defendant appealed to the district court. Prior to trial defendant appeared before the court with his counsel to present his motion to quash a search warrant. At that time the court stated that defendant had waived his right to a jury trial by not demanding the same within forty-eight hours of the appeal. Accordingly, defendant was 'tried by the court and found guilty as charged. Immediately thereafter, defendant Irving filed a motion for a new trial and a motion to set aside the verdict, both of which were denied. A renewed motion for a new trial and judgment of acquittal, based upon the allegation of newly discovered evidence, were likewise denied. Although defendant raises several points on appeal, we need only concern ourselves with his final claim of error. Defendant contends he was denied the right to a jury trial. He attacks the trial court’s statement that he had waived that right by not bringing an appeal within forty-eight hours. The state claims defendant’s actions indicated an implied waiver of his right to a jury trial. The right of a criminal defendant to be tried by a jury of his peers, rather than by the court alone, is “fundamental to the American scheme of justice.” (Duncan v. Louisiana, 391 U. S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444.) In Duncan, the court held that the Sixth Amendment, as applied to the states through the Fourteenth, requires that defendants accused of serious crimes be afforded the right to trial by jury, and the right was said to be applicable to any offense where imprisonment for more than six months is authorized. In addition, Section 5 of the Kansas Bill of Rights provides “The right of trial by jury shall be inviolate.” Further expression of this right can be found in K. S. A. 22-3403 (1) and 22-3404 (1), which provide for the method of trial in felony and misdemeanor cases, respectively. Despite the fundamental nature of the right to a jury trial, it is agreed these constitutional and statutory provisions extend a privilege of the accused which may be waived. (Patton v. United States, 281 U. S. 276, 74 L. Ed. 854, 50 S. Ct. 253; United States v. Taylor, 498 F. 2d 390 [6th Cir. 1974]; State v. Christensen, 166 Kan. 152, 199 P. 2d 475.) Since the right to trial by jury is constitutionally preserved, waiver of the right should be strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by jury. It is provided by statute in this state that a jury trial may be waived in any criminal trial where the defendant, the state, and the trial court assent to such waiver. (K. S. A. 22-3403 [1], 22-3404 [1].) We have stated the test for determining the validity of a waiver of the right to a jury trial is whether the waiver was voluntarily made by a defendant who knew and understood what he was doing. (State v. Blanton, 203 Kan. 81, 453 P. 2d 30.) Whether this test is satisfied in any given case will depend on the particular facts and circumstances of that case, but a waiver of the right to a jury trial will not be presumed from a silent record. (Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709; United States v. Taylor, supra; People v. Jaworski, 387 Mich. 21, 194 N. W. 2d 868.) The American Bar Association Standards for Criminal Justice, Trial by Jury, Section 1.2 (b), recommends the following: “The court should not accept a waiver unless the defendant, after being advised by the court of his right to trial by jury, personally waives his right to trial by jury, either in writing or in open court for the record.” (p. 7.) We adhere to the foregoing procedure for accepting the waiver of a criminal defendant of his constitutional and statutory right to trial by jury. We view the adoption of this standard as an additional safeguard against a defendant’s involuntary waiver of his right. It will minimize the uncertainty otherwise attendant to the determination of whether the defendant knowingly and intelligently waives a jury trial. This procedure has received support in numerous federal and state decisions. (See Kindle v. State, 313 N. E. 2d 721 [Ind. App. 1974]; Estrada v. United States, 457 F. 2d 255 [7th Cir. 1972]; Hatcher v. United States, 352 F. 2d 364 [D. C. App. 1965], cert. den. 382 U. S. 1030, 15 L. Ed. 2d 542, 86 S. Ct. 654; United States v. Hunt, 413 F. 2d 983 [4th Cir. 1969].) In accord with this position we hold that in order for a criminal defendant to effectively waive his right to a trial by jury, the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record. Considering the instant case in light of these principles we agree with defendant that he was denied the right to a jury trial. The record discloses the only mention of defendant’s right to a jury trial took place during the hearing on the motion to quash, at which time counsel for defendant stated he was not sure whether defendant would want a jury trial. In reply, the court said defendant had waived his right to a trial by jury by not demanding it within forty-eight hours of the appeal. Both parties now concede the trial court mistakenly relied upon K. S. A. 22-3404 ( 2), which provides for the trial of misdemeanor cases in a state court other than the district court. In the absence of an effective waiver, defendant was entitled to a trial by jury and the case is therefore remanded to the district court for a new trial. Other claims of error need not be considered in view of this result. Reversed with directions to grant a new trial. Fromme, J., not participating.	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The opinion of the court was delivered by Foth, C.: The issue in this appeal is whether the trial courts rendition of summary judgment was premature. Both parties contend that it was, and we agree. Plaintiff, Ruby M. Stripling, brought this action against the Star Lumber & Supply Co., Inc., alleging that it had defrauded her of $1,350. She prayed for that amount in actual damages and also for $20,000 in exemplary damages. Her allegations, in substance, were as follows: In the summer of 1973 she wished to add a room to her residence. On defendant’s recommendation she employed one Lloyd Coble to do the work, at an estimated cost of $800 for material and $550 for labor. She financed the project through a bank loan, securing one cashier’s check payable to herself and the lumber company for $800, and another to herself and Coble for $500. When the lumber company delivered a load of lumber and material to her home she endorsed and delivered to its agent the $800 check. The delivery invoice did not carry price extensions. Later, when the work was done, she gave Coble the $500 check plus her personal check for $50 for the balance of the contract price. The fraud she alleged was this: the lumber and materials delivered were worth only $200 or so; agents of the company knew this, but were engaged in a conspiracy with Coble to defraud her; it cashed the $800 check and paid over the excess $600 to Coble without her knowledge. Further, Coble was a poor workman and had a poor reputation in the construction industry, which the company knew and concealed from her. The job, for which she paid $1,350, was worthless. Before answering defendant took plaintiff’s deposition. In it she admitted that the defendant company had not actually recommended Coble to her, nor had it given her any cost estimates. She did not claim that the company employed Coble or that it guaranteed his work. In its answer the defendant denied all. By way of counterclaim it asserted that all of plaintiff’s allegations of conspiracy and fraud were not only false, but known by plaintiff to be false when she filed suit. The suit was malicious, it said, and it was therefore entitled to $1,000 in actual and $25,000 in exemplary damages. Plaintiff, by her reply, denied the defendant’s claim that any of her allegations were known to her to be false or that she sued maliciously. A pre-trial conference was held, and a pre-trial order was entered in which defendant stipulated that the material it delivered had a value of only $234.92, that it received and cashed plaintiff’s cashier’s check for $800, and that it remitted $565.08 to Coble. At this point defendant filed a motion for summary judgment, aimed solely at plaintiff’s claim for exemplary damages. Insofar as the record shows, defendant’s admission that it received plaintiff’s money and paid the bulk of it to Coble, plus plaintiff’s admission that she hired Coble on her own, were the only -undisputed facts before the trial court when it acted on defendant’s motion for summary judgment. It nevertheless granted summary judgment on all claims, giving plaintiff $565.08 actual damages, denying her claim for exemplary damages, and denying defendant’s counterclaim for both actual and exemplary damages. Both parties have appealed. Plaintiff claims that the amount of her actual damages is a disputed fact, and that she has a right to llave a jury consider her claim for exemplary damages. Defendant contends that, while the court correctly determined plaintiff’s exemplary damage claim, it erred in granting her actual damages and in denying its own claim for actual and exemplary damages. Under the statute (K. S. A. 60-256 [c]) summary judgment is proper only if “there is no genuine issue as to any material fact.” We have recently reiterated that “In considering a motion for summary judgment, the court should not .attempt to determine factual issues, but should search the record to determine whether factual issues do exist.” (Ebert v. Mussett, 214 Kan. 62, 65, 519 P. 2d 687.) In this case the pre-trial order listed the following issues of fact remaining to be determined: “I. Did the defendant have any knowledge of one Lloyd Coble? “2. If so, what was the nature and extent of that knowledge? “3. The nature of the agreement, if any, between Robert Lies [defendant’s agent] and Lloyd Coble? “4. Was there any intent on the part of the defendant to defraud the plaintiff? “5. Was there any agreement between plaintiff and defendant for payment of any sum of money? “6. What amount of actual damages, if any, is plaintiff entitled to recover from defendant? “7. What is the amount of punitive damages, if any, plaintiff is entitled to recover? “8. What is the amount of actual damages, if any, defendant is entitled to recover? “9. What is the amount of punitive damages, if any, defendant is entitled to recover?” As may be seen, the unresolved questions of fact encompassed the existence of a fraudulent conspiracy, and defendant’s participation; the amount of plaintiff’s actual damages, and her right to exemplary damages; and defendant’s actual damages and its right to exemplary damages. Whether plaintiff knowingly and maliciously brought a false suit would be included in this last issue. We are simply unable to see where, in the record presented to this court, any of these issues are resolved beyond dispute. It is admitted that defendant took plaintiff’s $800 and paid $565.08 to Coble. No explanation of this transaction appears in the record. If, as plaintiff claims, this was pursuant to a conspiracy to defraud her, she is entitled to go to. a jury on exemplary damages. (Dicker v. Smith, 215 Kan. 212, 523 P. 2d 371, and cases cited therein.) Neither is it clear that her actual damages are limited to the extra $565.08 that found its way into the hands of Coble. If there was a conspiracy, it may have been aimed at bilking her of the entire $1,350, giving her nothing or virtually nothing in return. On the other side, there is nothing in the record bearing one way or the other on the state of plaintiff’s knowledge when she sued, or the presence or absence of malice on her part. If defendant can show that plaintiff commenced her suit maliciously and without probable cause it has a submissible case of malicious prosecution. (Ahring v. White, 156 Kan. 60, 131 P. 2d 699; Bratton v. Exchange State Bank, 129 Kan. 82, 281 Pac. 857.) Defendant claims to be able to carry the day on these issues, and there is nothing in the record to refute its claim. In short, it appears from the record that the case was not ripe for summary judgment. That procedure is a valuable tool for terminating a lawsuit when its outcome is foreordained, but cannot be used to deprive parties pf a trial on genuinely disputed issues of fact. There appear to be such issues here, and the summary judgment cannot stand. The judgment is reversed and the case is remanded for further proceedings. APPROVED BY THE COURT.	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The opinion of the court was delivered by Fromme, J.: This case presents the question of whether the state of Kansas may compel testimony from an unwilling witness, who invokes the constitutional privilege against compulsory self-incrimination, when witness immunity from prosecution or punishment is conferred by the state as provided in K. S. A. 22-3415 (Weeks). The question arose under the following circumstances. Ed Mufich was charged with commercial gambling. The appellant Paul Birdsong was called as a state witness at the preliminary hearing and refused to respond to questions, claiming a constitutional privilege against compulsory self-incrimination under the Fifth Amendment to the United States Constitution and under Section 10 of the Kansas Bill of Rights. The district attorney then gave appellant a written grant of immunity pursuant to K. S. A. 22-3415 (Weeks) which reads as follows: “To: Paul C. Birdsong “Grant of Immunity “Comes now Nick A. Tomasic and states: “1. That I am the duly elected, qualified and acting District Attorney for the 29th Judicial District, State of Kansas; and “2. That pursuant to K. S.A. 1972 Supp. 22-3102 and 22-3415, I have the power to grant immunity from prosecution to any person; and, “3. That I, in my officeial capacity as District Attorney, herewith grant to Paul C. Birdsong full and complete immunity from prosecution or punishment on account of any transaction or matter contained in any statement or about which such person may be compelled to testify and such statement or testimony shall not be used against such person in any prosecution for a crime under the laws of Kansas or any municipal ordinance; and, “4. That the aforedescribed grant of immunity is given for the purpose of compelling testimony from Paul C. Birdsong in the prosecution of the above styled action.” Appellant Birdsong persisted in his refusal to answer questions asserting that the immunity granted was insufficient to protect him against prosecution by the federal government. The trial court found that the grant of immunity was sufficient to protect appellant from both state and federal prosecution on any testimony he might give at the preliminary hearing. Appellant continued his refusal to testify, was held in contempt of court and was sentenced to the custody of the sheriff until he testified as ordered by the court. Pending this appeal appellant was permitted to remain at liberty on bond. Appellant’s primary complaint alleged on appeal is that the immunity granted pursuant to K. S. A. 22-3415 (Weeks) will not protect him against subsequent prosecution for violation of federal laws based upon testimony compelled at this state proceeding. Appellant argues the grant of immunity provided by the state is insufficient to protect against self-incrimination as guaranteed by the state and federal constitutions. There has been change in this area of constitutional law but it is settled that state and federal governments possess the power to compel residents to testify in courts, before agencies of the government and before grand juries. The power to compel residents to testify is essential to protect the legitimate public interest in the investigation of criminal offenses. See Blair v. United States, 250 U. S. 273, 63 L. Ed. 979, 39 S. Ct. 468, and Murphy v. Waterfront Comm'n., 378 U. S. 52, 12 L. Ed. 2d 678, 84 S. Ct. 1594. Since the decision of the high court in Malloy v. Hogan, 378 U. S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489, the Fifth Amendment right against self-incrimination is applicable to the states through the due process clause of the 14th Amendment. However, the Supreme Court of Kansas has held the provisions of the Fifth Amendment to the United States Constitution grant no greater protection against self-incrimination than does Section 10 of the Kansas Bill of Rights. See State v. Faidley, 202 Kan. 517, 450 P. 2d 20, and State ex rel., v. Koscot Interplanetary, Inc., 212 Kan. 668, 676, 512 P. 2d 416. The Fifth Amendment to the United States Constitution and Section 10 of the Kansas Bill of Rights provide that no person shall be compelled in any criminal case to be a witness against himself. In order for governments to exercise their power to compel testimony a grant of immunity from prosecution based upon the compelled testimony is necessary and it is generally understood that a grant of immunity is sufficient to require the incriminating testimony if the immunity granted is coextensive with the scope of the constitutional privilege against self-incrimination. (Counselman v. Hitchcock., 142 U. S. 547, 35 L. Ed. 1110, 12 S. Ct. 195; Heike v. United States., 227 U. S. 131, 57 L. Ed. 450, 33 S. Ct. 226; Kastigar v. United States, 406 U. S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653, reh. den. 408 U. S. 931, 33 L. Ed. 2d 345, 92 S. Ct. 2478.) In Counselman v. Hitchcock., supra, it is pointed out: “[L] egislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect. . . .” (142 U. S., p. 585.) In Kastigar v. United States, supra, it is stated: “Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, are not incompatible with these values. Rather, they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a charcter that the only persons capable of giving useful testimony are those implicated in the crime. Indeed, their origins were in the context of such offenses, and their primary use has been to investigate such offenses. . . .” (406 U. S., pp. 445, 446, 447.) The Kansas statute which grants immunity from prosecution on compelled testimony reads as follows: “The provisions of law in civil cases relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of the parties, shall extend to criminal cases so far as they are in their nature applicable, unless other provision is made by statute. , “The county or district attorney or the attorney general may at any time, on behalf of the state, grant in writing to any person immunity from prosecution or punishment on account of any transaction or matter contained in any statement or about which such person shall be compelled to testify and such statement or testimony shall not be used against such person in any prosecution for a crime under the laws of Kansas or any municipal ordinance. After being granted immunity from prosecution or punishment, as herein provided, no person shall be excused from testifying on the ground that his testimony may incriminate him unless such testimony is a violation of federal law. He shall not be granted immunity from prosecution for perjury or false statement or any other crime committed in giving such evidence.” (K. S.A. 22-3415 [Weeks].) Appellant earnestly argues that the immunity granted by the statute is not coextensive with the constitutional privilege against self-incrimination because the grant of immunity does not extend to subsequent federal criminal prosecutions. The questions raised in appellant’s argument appear to be answered, to our satisfaction at least, in Murphy v. Waterfront Commn., supra, where the high court reviewed the early English and American cases and the recent cases of the Supreme Court of the United States and said: “The foregoing makes it clear that there is no continuing legal vitality to, or historical justification for, the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction.” (378 U. S., p. 77.) The court went on to say that it was going to decide what effect this might have on existing state immunity legislation. We quote that decision: . . [W]e hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection wih a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits.18 [Footnote.] 18Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence. [End of footnote.] This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.” (378 U. S., p. 79.) An argument similar to that of the appellants was made in Nelson v. Municipal Court, 28 Cal. App. 3d 889, 105 Cal. Rptr. 46, where witnesses in a state criminal proceeding sought a writ of prohibition to restrain the court from imprisoning them for refusing to testify after they had been granted immunity by the state. They argued that their answers might subject them to prosecution under federal law. The California court reviewed the Murphy v. Waterfront Commn. decision and stated that since the federal government would be barred from using any of the testimony, or its fruits, in a subsequent federal prosecution, because the witnesses had been granted immunity pursuant to the California statute, they may therefore be compelled to testify. We believe the California court correctly interpreted the Murphy decision. Appellant next questions the Kansas immunity statute because of the specific language in the statute. He argues that the grant of immunity in the statute is restricted to a grant of immunity against self-incrimination in state prosecutions. The statute (K. S. A. 22-3415 [Weeks].) has previously been set forth in full in this opinion. In the second paragraph of the statute the legislature designates who is authorized to grant immunity from prosecution (the county or district attorney or the attorney general). The written grant of immunity from prosecution may be made “on account of any transaction or matter contained in any statement or about which such person shall be compelled to testify.” Then follows a rather ambiguous and unclear statement which gives rise to appellant s concern. It is as follows: “. . . After being granted immunity from prosecution or punishment, as herein provided, no person shall be excused from testifying on the ground that his testimony may incriminate him unless such testimony is a violation of federal law. He shall not be granted immunity from prosecution for perjury or false statement or any other crime committed in giving such evidence.” (K. S. A. 22-3415 [Weeks], Emphasis added.) The Malloy v. Hogan and Murphy v. Waterfront Commn. cases were decided in 1964. The ambiguous portion of the Kansas statute was added by the legislature in 1972, after the federal law in this area had been clarified. If we accept the premise stated by the high court in Kastigar v. United States, supra, that state and federal immunity statutes are not incompatible and they seek a rational accommodation between the imperatives of the constitutional privilege and the legitimate demands of government to compel citizens to testify, then it becomes necessary for us to interpret our immunity statute. Under any rational interpretation it cannot mean that testimony may be compelled in state prosecutions only when the testimony could not be relevant to a federal prosecution. Such an interpretation would destroy the legitimate demands of state govenment to compel citizens to testify and would make any state statutory grant of immunity wholly ineffective. Rarely will you find a need for compelled testimony where the transaction will not involve state as well as possible federal infractions of the law. The requirement to testify in the statute is predicated on a grant of immunity “unles such testimony is a violation of federal law.” The giving of testimony can be a violation of law when it is perjured. However, the final sentence in the statute withholds immunity for any crime committed in giving such testimony, such as perjury or false statement. The meaning of this “unless clause” is obscure. The statute provides that no person shall be excused from testifying after immunity has been granted. The federal cases hold that unless the grant of immunity is in some way limited so as not to be coextensive with the constitutional privilege against self-incrimination the testimony may be compelled. In other words it would appear the legislature intended that any witness who- had been granted the immunity contemplated by the Kansas statute could be compelled to testify. If the written grant of immunity contains no limitations which limit the constitutional privilege against self-incrimination or render the witness subject to federal prosecution the witness may be compelled to testify. The grant of immunity pursuant to the Kansas statute (K. S. A. 22-3415 [Weeks].) affords a witness protection from self-incrimination in state prosecutions and under the federal case law a similar protection from federal prosecutions is afforded on account of any transaction or matter contained in any statement or about which such witness shall be compelled to testify. Such compelled statement or testimony shall not be used against such witness in any prosecution for a crime, state or federal. The Supreme Court of Delaware in construing a similar provision in the Delaware witness immunity statute (11 Del. C. § 3508) arrived at a similar interpretation of their “unless clause” holding that because such testimony cannot be used in evidence in a subsequent federal proceeding when full immunity has been granted the limiting language of the Delaware statute was inapplicable (State v. Conner, [Del. Supr.] 295 A. 2d 704.) We believe that such an interpretation could reasonably be adopted by this court as to the Kansas statute. The appellant, anticipating the foregoing interpretation of the statute, states that the motive or wisdom of legislation rests with the legislature and relief from an undesirable enactment is a legislative and not a judicial function. That principle is sound and is applied in cases where the legislative intention is clear. In the present case the words used in the “unless clause” of the statute are ambiguous, unclear and unintelligible when read in conjunction with the other provisions of the statute. Therefore judicial construction and interpretation is necessary. Our construction should be based on legislative intent to be determined from the whole act and construction should be in accord with the general intent and purpose of the entire statute. (Southwest State Bank v. Quinn, 198 Kan. 359, 424 P. 2d 620.) The general intent and purpose of the statute is to obtain compulsory self-incriminating testimony by granting immunity from prosecution coextensive with the constitutional privilege against self-incrimination. Legislative intent, if ascertainable from the statute, governs its construction even though the literal meaning of the words used therein is not followed. (In re Estate of Diebolt, 187 Kan. 2, 13, 353 P. 2d 803; Duggan v. Navart, 198 Kan. 637, 639, 426 P. 2d 153.) Appellant next argues that the Kansas statute provides protection from subsequent prosecution by authorizing a grant of transactional immunity (immunity from prosecution for or on account of any transaction, matter or thing concerning which a witness may testify or produce evidence documentary or otherwise). Appellant contends that the high court in Kastigar v. United States, supra, held that use and derivative use immunity (immunity from use of compelled testimony or evidence and its fruits in subsequent prosecution) is required to compel testimony from a witness in federal proceedings. Appellant argues that because Kansas provides transactional immunity the legislature adopted limiting language to protect witnesses compelled to testify in state actions from subsequent federal prosecution for crimes related to the transaction about which they were compelled to testify. Appellant presents no authority which holds that federal prosecutors may prosecute witnesses based on testimony of transactions about which they testified while under the protection of a state grant of transactional immunity. Appellant’s interpretations of K. S. A. 22-3415 (Weeks) and of Kastigar v. United States, supra, are erroneous. A grant of immunity pursuant to the Kansas statute is as follows: [Ijmmunity from prosecution or punishment on account of any transaction or matter contained in any statement or about which such person shall be compelled to testify and such statement or testimony shall not be used against such person in any prosecution for a crime under the laws of Kansas or any municipal ordinance. . . .” (K. S.A. 22-3415 [Weeks]. Emphasis added.) It appears from our reading of the statute that both a transactional immunity and a use immunity is provided. Under the Kansas statute (K. S. A. 22-3415 [Weeks].) immunity is granted on account of any transaction or matter about which such person is compelled to testify (transactional immunity). In addition the statute provides that such testimony shall not he used against such person in any prosecution for crime (use immunity). Appellant contends Commonwealth, Appellant v. Fattizzo, 223 Pa. Superior Ct. 378, 299 A. 2d 22, holds that transactional immunity does not provide every protection that use and derivative immunity affords. In view of our interpretation of the Kansas statute the contention is academic since our statute provides both transactional and use immunity. However, it is generally held that a grant of transactional immunity alone is coextensive with a witness’ constitutional privilege against self-incrimination and when transactional immunity is granted the witness must testify. (Kastigar v. United States, supra; Zicarelli v. New Jersey Investigation Comm’n, 406 U. S. 472, 32 L. Ed. 2d 234, 92 S. Ct. 1670; State v. Carroll, 83 Wn. 2d 109, 515 P. 2d 1299; People v. Breindel, 342 N. Y. S. 2d 428, 73 Misc. 2d 734.) Finally appellant argues that at the time he refused to testify he had reasonable grounds to fear that the immunity granted by the state would not protect him against subsequent federal prosecution. He argues that he should not be held in contempt because of the confusion in the law in this area. We cannot agree. The opinion in Murphy v. Waterfront Comm’n., supra, was available and appears sufficiently definite and certain. We find no merit to this contention. The judgment of the trial court finding appellant in contempt is affirmed.	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The opinion of the court was delivered by Brewer, J.: This was an action brought by the plaintiff in error (plaintiff below), to recover the possession of specific personal property. The petition was as follows: {Court, and Title.) “The plaintiff says, that at Fort Scott, Kansas, on January 1, 1879, the defendants wrongfully detained from this plaintiff, and still detain in their possession, the goods and chattels of this plaintiff, to wit: [Here follows a description of the property, location and value.] The plaintiff is the owner of said property, and entitled to the immediate possession thereof. The defendants, although due demand has been made, refuse to deliver possession of said property to the plaintiff. Wherefore she brings this her action in replevin, to recover the possession of the same, and costs of suit, and asks judgment accordingly.” The truth of the petition was verified by the affidavit of the plaintiff. Neither the affidavit, nor the bond required by the statute to obtain an order of delivery, was filed; no order of delivery was ever issued, and the property remained undisturbed in the possession of the defendants, and is still in their possession. All of the defendants answered — all filed a general denial; in addition to which, two of the defendants, Wyckoff and McFarlane, answered further, saying: “And for a second and further answer and defense, these defendants allege and aver that they are the owners-of the property described in plaintiff's petition, to wit: [here follows description;] and the plaintiff has no title or ownership or right of possession whatever therein or thereto ; that the said described property, on or about the first day of January, 1874, and long-prior thereto, was part and parcel of certain real estate in St. Clair county, Mo., being and composing the fixtures in a certain mill, at that time owned by a co-defendant herein, Mrs. E. K. Batchelor; that on or about said last-mentioned date, said mill building was accidentally -burned; and after said fire, the property in controversy still remained in its original position — was still fixtures, and a part and parcel of said certain real estate. Defendants further aver that on or about the 12th day of March, 1878, they purchased from their co-defendant, Mrs. Batchelor, the then owner of the said mill property, the property in controversy in this action, paying her full value therefor; that said sale vested the exclusive title to said property in defendants, and that they still are the owners thereof. Wherefore, defendants pray judgment.” To the foregoing, neither Walburn nor Mrs. E. K. Batchelor replied; but this plaintiff replied by a general denial. On the trial of the case, a jury having been impanneled, and a witness for the plaintiff placed upon the stand, the defendants objected to the introduction of any evidence, on the ground and for the reason that the plaintiff’s petition did not-state a cause of action, “ because there is no allegation in the petition that the property described was not taken in execution on any order or judgment against said plaintiff; or for the payment of any tax, fine or amercement assessed against her; or by virtue of any order of delivery issued under art. 10, ch. 80, Gen. Stat.; or any other mesne or final process issued against said plaintiff; or if taken in any execution, or on any order or judgment against the plaintiff, that it is exempt by law from being taken.” This objection was sustained by the court, and the plaintiff refused to amend. Thereupon the defendants asked that the jury be directed to render a verdict, and that- the defendants have judgment therein. Plaintiff objected — the court overruled the objection, and instructed the jury with written instructions, and directed them to find the issues for the defendants; to all of which the plaintiff objected and excepted. Upon this, counsel for defendants in error say, that the questions presented are: First: Can an action in replevin be maintained under our code without a seizure of the property at some time before final determination of the suit, and therefore without an affidavit and bond? Second: If the foregoing question is answered in the affirmative, is a petition good, and can the action proceed over the defendants’ objection, without what are termed the negative averments and proof of the fourth subdivision of §177 of the code being made somewhere or in some manner by the plaintiff? The first question must, we think, be answered in the affirmative. That such a petition as appears in this case is sufficient, was adjudged in the case of Hoisington v. Armstrong, 22 Kas. 110. That the three elements of ownership, right of possession, and wrongful detention, are all that the plaintiff must establish, was decided in the case of Wilson v. Fuller, 9 Kas. 177. And that an omission of the order of delivery did not affect the action, was impliedly recognized in the case of Ward v. Masterson, 10 Kas. 77. The code very clearly recognizes the same fact Sec. 176 reads: “ The plaintiff in an action to recover the possession of specific personal property may, at the commencement of the suit, or at any time before answer, claim the immediate delivery of such property, as provided in this chapter.” The plaintiff may, not must; and he may, at the commencement of the suit, or at any time before answer. The action exists, or may exist, before the order. The section recognizes the action, and says certain things may be done in it. It nowhere provides that a failure to take the order abates the action, or that defendant may prevent a recovery by showing that plaintiff has not availed himself of all the privileges which the statute has given. The order for the delivery is ancillary. It is like an order of injunction, which may be the final judgment or a provisional remedy. (Code, §237.) In replevin, the judgment may be for the possession, or the value thereof in case a delivery cannot be had. (Code, § 185.) And delivery may be enforced after judgment by attachment, as for a contempt. (Code, § 188.) It would be a strange omission if such action could not be maintained — in many cases a gross denial of justice. Immediate delivery can be secured only by giving bond. This is sometimes impossible, especially where the plaintiff is poor, or a stranger. In such a case, to turn him over to a mere action for the value, would often give no relief. The defendant might be execution-proof. The property might have great personal value; it might be a family relic, something which the plaintiff would under no circumstances part with. And yet, because he is unable to give bond, he must, according to defendants’ theory, sell it at its market value. In 1 Wait’s Prac. 711, the author says: “The code, however, leaves it optional with the plaintiff to proceed to recover the possession of the property, under the provisions of §206 of the code, [§206 of the New York code corresponds with §176 of our code,] before judgment in the action, or to seek the specific recovery of the property after judgment. It is not necessary that the plaintiff in an action to recover the possession of personal property under the code, should claim the delivery of the property before judgment and furnish security to the defendant, as was indispensable in the old action of replevin. Although he may not resort, in the action, to the provisional remedy of claim and delivery, he may still have judgment and execution for the restitution of the property, with damages for its detention if he succeeds in establishing his right to recover. Vogel v. Babcock, 1 Abb. 176; Corbin v. Milton, 27 How. 76.” It may be that a different rule obtains before a justice of the peace, for there it is provided that the action shall not be brought until the affidavit is filed, and that no summons shall issue until bond is given. (Comp. Laws 1879, p. 712, §§56 and 57.) The second question must also be answered in the affirmative. The petition containing the three matters heretofore mentioned is sufficient. Proof of those three facts gives plaintiff a right of recovery. The defendant may interpose any matter contained in those negative averments as a defense, and if proved; it shows that plaintiff had no right of possession. But it is matter of defense.- Perhaps any one may be proved under a general denial, but unless shown to exist, it will be presumed not to exist. The plaintiff is not called upon to prove a negative. If testimony is silent upon these points, they are out of the case, and need not be considered. "The fact that the property was not taken by virtue of any legal process against the plaintiff, unless it was exempt from such process, must exist as a fact, and in one sense must be established; but if the plaintiff,files the proper affidavit, stating that the property ivas not so taken, and the defendant neither sets up nor proves that it was so taken, it will be presumed as a fact that it was not so taken, and therefore, by this means, such negative fact is established.” (Hoisington v. Armstrong, 22 Kas. 113.) The same rule holds good where no order for immediate-delivery is asked, and the question arises on the trial and the-pleadings. For the error of the court in this ruling, the judgment must be reversed, and the case remanded for a new trial. All the Justices concurring.	[ -112, 106, -23, -99, -86, 96, 42, -104, 99, -79, -90, 83, -19, -128, 1, 41, 114, 57, -47, 121, 70, -89, 23, 75, -46, -5, -39, -51, 49, 75, -28, -58, 72, 48, 74, -35, -58, -64, -59, -36, -52, -123, 9, -32, -47, 72, 48, -69, 18, 75, 17, 46, -13, 46, 25, 67, 73, 45, -21, -67, -15, -72, -119, 85, 95, 18, 1, 54, -108, 71, 72, 42, -110, 49, 17, -88, 115, -74, -122, 116, 39, -103, 40, 102, 103, 33, 29, -17, -24, -88, 46, 62, -113, -89, -111, 72, 75, 41, -74, -99, 125, 80, -93, -2, -29, 13, 29, 108, 7, -49, -12, -75, 15, 56, -110, 67, -53, 35, 32, 113, -51, 0, 89, 71, 51, -101, -114, -1 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought in the district court of Atchison county, by the defendant in error, as administrator of the estate of Charles W. Henigh, deceased, against the plaintiff in error, to recover the sum of $10,000 damages, alleged to have been sustained by reason of the death of said Charles W. Henigh, an infant of the age of four years eight months and a few days, which death is alleged to have been caused through the negligence of the said plaintiff in error. _ The petition of the plaintiff below defendant in error) sets forth the facts supposed to consti ■.tute the said alleged negligence of the defendant below (plaintiff in error), the said death of the said Charles W. Henigh, which occurred June 24, 1877, and the appointment of the plaintiff below, David Henigh, as the administrator •of said Charles W. Henigh’s estate. The answer of the defendant below denies negligence on the part of the defendant, sets up negligence on the part of said Charles W. Henigh, and his father and mother, said David Henigh and Mrs. Henigh, and denies the authority of the said David Henigh to act as administrator, or to sue in this action. This last denial was duly verified by affidavit. The plaintiff replied to the defendant’s answer by filing a general denial. The action was tried upon these pleadings, before the court and a jury. The jury returned a general verdict in favor of the plaintiff and against the defendant, and assessed the damages at $600, and also made numerous special findings in answer to special questions submitted to them. The court rendered judgment in accordance with the general verdict of the jury, and to reverse this judgment the defendant now, as plaintiff in error, brings the case to this court. The various questions now presented to this court were ■raised in the court below by the defendant below (plaintiff in ■error), as follows: By objecting to the plaintiff’s evidence, and to portions thereof; by demurring to the plaintiff’s evi■dence; by excepting to the refusal of the court below to give certain instructions to the jury; by excepting to the refusal •of the court below to submit certain special questions of fact to the jury; by moving for a judgment in favor of the defendant upon the special findings of the jury; and by a motion for a new trial, made upon various grounds. In all •these matters the court below ruled against the defendant, and the defendant took proper exceptions. The principal ■questions involved in this case are as follows: 1. Can an administrator be appointed to prosecute an action under § 422 of the civil code, (Comp. Laws of 1879, p. 656,) where the intestate died without leaving any estate of any hind, and not owing any debts ? 2. Was the defendant guilty of any culpable negligence, as-toward the plaintiff’s intestate? 3. Was the plaintiff’s intestate, or the intestate’s father or mother, guilty of any contributory negligence? We shall not discuss or decide the first question; and as to-the other two, we shall discuss them together, as many of the-facts involved therein are common to both. The facts necessary to be stated in the discussion of these questions are substantially as follows: For several years prior to the death of said Charles W.. Henigh, the defendant below (the Central Branch Union Pacific railroad company) owned and operated a railroad from Atchison city, westwardly through Atchison and several-other counties in the state of .Kansas. On this railroad, and in Atchison county, the company had a station called Farmington. At this station there was a station-house or depot,, and also a switch-track, owned and used by the railroad company. This switch-track was south of the depot and main track, running nearly parallel with the main track, connecting with the main track at its east end and not at the west end, and was 667 feet in length. The two ends of this switch-track were nearly on the same level or horizontal plane, but the middle was about four feet lower. The steepest grade commenced at a point about 57 feet east of the west end of the switch-track, and ran eastwardly about 280 feet,, and was about 4J feet to said 280 feet, or at the rate of about 80 feet to the mile. Cars were frequently allowed to stand upon this switch-track, and upon this steep grade; but they would not stand upon the steep grade without being properly fastened. They were usually fastened by means of the common hand-brakes attached to the cars. Boys, from ten years-of age upward to sixteen, would sometimes get upon these cars and loosen the brakes, and let the cars run down into the depression of the switch-track; but this was never done with the consent or permission of the railroad company. The railroad company always objected, when the matter came to its knowledge. No public road touched this switch- track; but á by-path crossed the same, on which people frequently traveled. Surrounding this station was a village called Earmington, which contained a store, also used as a post-office, and about four or five other houses. The store was about 200 feet distant from the depot and switch-track, and the inhabited houses were from 125 yards to 600 yards distant therefrom. David Henigh, with his family, consisting of a wife and five children, resided about 200 or 300 yards southeast therefrom. They had resided there for about six or seven years. Allison resided about the same distance north of the railroad. On June 23, 1877, the railroad company pushed upon said switch-track, and upon the steep grade thereof, a flat-car and two box-cars, and securely fastened them, by means of the ordinary hand-brakes, attached to each car respectively. Afterward, the brakes on the box-cars were loosened, without the consent or knowledge of the railroad company, and the box-cars ran down upon said depression. The flat-car remained where it was first placed. On the next day (June 24,1877), Mrs. Henigh left her home, with two of her children, (said Charles W. Henigh and another little son, younger than Charles,) to go across the railroad to Mr. Allison's house. All crossed the railroad track, and then Charles stopped. She however supposed that he was following her, and passed on, continuing to think so, until she arrived at Mr. Allison's gate, when she looked back and saw him going toward the depot. She then went into Mr. Allison's house and remained there about ten minutes, when she came out and saw her son Charles on said flatcar, and the car moving down the grade toward said box-ears. The boy had evidently, after leaving his mother, gone to said flat-car, climbed upon it, and loosened the brake, and then the car, by its own weight, moved down said grade. The boy then fell off or jumped off front said car (and which is not known), immediately in front thereof, and the car passed on and over him, killing him almost instantly. The car, after passing over him, passed on to said box-cars. These are substantially all the facts constituting, or show ing, or tending to show negligence. Are they sufficient for that purpose? Was any person guilty of culpable neglifgeace? We think not. It will hardly be claimed that a ' child so young as Charles W. Henigh was could be guilty of negligence, and whether the negligence of his parents, or guardians, or custodians could be imputed to him, we do not yiow choose to decide. His father was certainly not guilty of negligence, for he did not at the time have the custody of the child; and we do not think that his mother was, for, under the circumstances, we do not think that she should have entertained the slightest suspicion that her child was in any real danger. But if she was not guilty of negligence, then certainly the railroad company was not; for she knew all the material facts that the railroad company did, and more. She had lived in sight of this station, and this switch-track, and this steep grade, for several years, and consequently must have known the exact condition of affairs in that vicinity. She must have known the character of the switch-track with its steep grade, and must have seen the cars that were standing on the track on that very day. But above all, she knew where her son was and his likelihood to get among the cars and upon them, and this the railroad company did not know. As to the whereabouts of her son, the railroad company did not have the slightest knowledge. Hence, if she was not negligent, then there could be no reason for imputing negligence to the railroad company. But let us examine more particularly into the supposed negligence of the railroad company. It is- possible that the railroad company could have exercised greater care, but so could Mrs. Henigh. The railroad company could have made the switch-track level, or could have locked the cars with lock and key, or could have moved the cars a few miles away from Farmington, or indeed could have built their railroad somewhere else, and then said death would not have happened. And on the other hand, Mrs. Henigh could have kept her child away from the cars, and he would have been safe; and the failure to exercise the greatest care, is in one sense negligence. . It has often been said by courts and law-writers that the failure to exercise the utmost care is negligence. This is probably true, but the failure to exercise an unreasonably great amount of care is never culpable negligence; and when we speak of negligence without any qualifying word or words, we usually mean culpable negligence. Indeed some courts, like the supreme court of the United States, do not recognize any negligence except culpable negligence. They say that any negligence less than culpable negligence is not negligence at all. They recognize degrees of care and diligence, but do not recognize degrees of negligence. In their language, the failure to exercise great care is negligence where great care is required, but is not negligence where only slight or ordinary care is required. They say that the failure to exercise slight care can never be more than negligence, and that to call it “gross negligence” is merely to call it negligence, adding a vituperative epithet. There is no substantial difference, however, in the decisions of the various courts upon this subject; it is only a difference in the use of terms, (See further on this subject, U. P. Rly. Co. v. Young, 19 Kas. 495, et seq.) In all courts culpable negligence consists in the failure to exercise the amount of care required, whether that amount be slight, ordinary or great, and whether the corresponding degree of negligence be called gross, ordinary, or slight, or merely negligence. In the present case, we take it that all the parties having any connection with said accident were required to exercise that degree of care and diligence which an ordinarily prudent person would exercise under like circumstances. This is ordinary care, and the failure to exercise it would be ordinary negligence, or culpable negligence, or, as some courts would say, merely negligence, and if all the parties in this case exercised ordinary care, then no one was guilty of culpable negligence. Now all negligence, to be culpable, necessarily implies the failure to properly perform some duty. Now what duty did the railroad company owe to Charles W. Henigh which it did not properly perform? No relation existed between them. He was not a passenger, nor an employé, and had no business with the railroad company of any kind or character. He had no right to climb upon said car ás he did, nor to touch it, nor even to go upon the company’s premises. Technically he was a mere trespasser, and the company owed to him no duty except such as it owes to trespassers in general, or except such as it owes to all mankind. We have heretofore held that all persons must use their property and conduct thejr affairs with reference to the rights of all other persons, and with reference to all known or anticipated surroundings, and that even trespassers have a right to expect that such will be done. (K. C. Rly. Co. v. Fitzsimmons, 22 Kas. 686, 690, et seq.; K. P. Rly. Co. v. Brady, 17 Kas. 380, 384, et seq.) And we still adhere to this doctrine. But no person is bound to anticipate something which is not likely to occur,- or to so conduct his affairs as to prevent accidents which are not likely to happen. This has reference where no specific duty exists, but only such general duties as all mankind owe to each other. Then in the light of the foregoing, wherein was the railroad company negligent as toward Charles W. Henigh? The jury and the defendant in error say that it was in constructing said steep grade, and in not fastening said railroad cars so that they could not be unfastened by boys. But what specific right had Charles W. Henigh to say how said switch-track should be constructed, or how said cars should be fastened? None at all. He had only that general right in the company’s affairs which all mankind possess in the affairs of others; and that is, that the railroad company should so construct its road, and so fasten its cars, that no injury would be likely to occur to such persons as were likely to be in that vicinity. The accident that actually occurred could not have been anticipated. The cars were so well fastened that no danger was possible, unless some person climbed upon them and unfastened the brakes; and then danger was almost impossible to any ordinary person. The cars were not dangerous machines, left exposed near a populous city. Nor were they of that alluring character to entice boys to play upon them; for when unfastened they would move only a few feet and then ;stop. Nor were they dangerous, even when moving, to ordinary boys. Certainly, boys from 10 to 16 years of age were not likely to be hurt by them. No one would have anticipated that a boy, less than five years old, would have gone to the cars, unaccompanied by any older person, and have climbed upon one of them, and unloosened the brake, so as to set the car in motion. No such a thing had ever before occurred. And certainly no one could have anticipated that a boy big enough to do that would have fallen off or jumped off in front of the car so that the car would run over him and kill him. Most boys would have stayed on the car, so as to get a ride. And this the company had a right to expect. "We do not think that the company was negligent. But it is •said that the jury found that the company was negligent. This is partially true. The jury, in one set of words, said that the company was negligent, but in another set of words they said substantially the reverse. In general terms, the jury said that the company was guilty of negligence; but in their detailed statement of facts, they said substantially that the company was not guilty of negligence. And the general .statement was a mere conclusion from the detailed statement. Hence in reality, the jury found that there was no negligence. Negligence is of course a fact to be submitted to the jury. • ((C. B. U. P. Rld. Co. v. Hotham, 22 Kas. 41.) And it may be found apd stated by the jury in great detail, or in less detail, •or in general terms. And if the jury state the facts in detail, .and then attempt to state them again as one comprehensive fact, or compound fact, the detailed facts will govern. Generally, when the facts are established, it is a question of law for the court to determine whether they constitute negligence, • or not, and generally, when the jury find the facts in detail, they cannot then say, in general terms and conclusively, that ¡such facts constitute negligence, unless they in fact do constitute negligence. In the present case there was no evidence proving negligence — that is, culpable negligence; and the court below should have sustained the demurrer of the de fendant to the plaintiff’s evidence. And there was nothing that transpired after said demurrer was overruled to cure this error of the court below. We think, however, that the special findings of the jury will also authorize a judgment in favor-of the defendant below, and against the plaintiff. The judgment of the court below will therefore be reversed, and cause remanded with the order that judgment be-rendered in favor of the defendant below for costs. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: This was an action by Havens, as administrator of the estate of Elijah C. Stevens, deceased, against Thomas Carney and Thomas C. Stevens, as partners. The petition contained two causes of action — the first, for work and labor done by the deceased; the second, for moneys deposited by him. Stevens made default, but Carney filed an answer and contested the action, and, judgment having been rendered against him, now brings the case here. By consent, the cause was referred to a referee, to report on all the issues of fact and law. The referee made a report, and it not being satisfactory, the cause was referred for further findings. Another report was made, to which defendant excepted and moved for a new trial, but the court overruled the exceptions and the motion for a new trial, and rendered judgment for the administrator, against both defendants, for $3,694, that being the share of the deceased in the profits on a herd of cattle taken to Fort Union, New Mexico. There is no case-made or bill of exceptions in the record, and the petition in error is predicated solely on the pleadings, the report of the referee, and the journal entries in the case. It must be assumed that the testimony warranted the findings of fact made by the referee, and for the purposes of this case, those findings must be considered as substantial verities. So far as the second count is concerned, it is now out of the case, and the substantial question for our determination arises on the plea of the statute of limitations; and this hinges on the further question, whether a cause of action had accrued to the deceased prior to his death, or only matured at and by his death. The deceased died while in the employ of defendants, on September 5, 1865. Administration on his estate was first taken out in 1872, and this action was commenced December 23, 1872. Now if the cause of action had accrued prior to the death of Elijah C. Stevens, then, as the death of the creditor does not suspend the running of the statute after it has commenced to run, the action was barred. (Green v. Goble, 7 Kas. 297.) On the other hand, if no cause of action had accrued until the death of Stevens, then, as there was no one who could sue until administration, the statute never commenced running until 1872, and suit was brought immediately thereafter. Now it appears that Elijah C. Stevens had been in the employ of defendants for some years prior to his death, most of the time in charge of a branch of their business at the Sac and Fox agency, but except as hereafter stated, without any special arrangement as to his compensation. The further facts appear in the following findings of the referee: “ 8. During the last year of E. C. Stevens’s employment, the said T. C. Stevens & Co. projected and carried out a scheme for conveying a large herd of cattle, of a thousand head and over, from the Sac and Fox agency to Fort Union, in New Mexico, there to be sold. This project was carried out under the supervision of E. C. Stevens, who assisted in purchasing the cattle, and who conveyed the herd to its destination, and the profits amounted to from $12,000 to $14,000. “8¶. That the cattle arrived at Fort Union, New Mexico, early in January, 1865. They, together with the mules, wagons and ponies (except one team of four mules and one wagon), were sold by E. C. Stevens and one Guilford Dudley, and the proceeds were immediately forwarded to Carney and Stevens, at Leavenworth, Kansas, and the same were by them received about that time. Afterward, Dudley and E. C. Stevens took the remaining team and wagon and returned to' Leavenworth about the month of April, 1865, and reported on their sales, when Carney and Stevens settled with and paid Dudley, arnd of the money received by them from Fort Union paid to E. C. Stevens $2,000 for the mules and wagons and ponies belonging to him, which were sold with or at the same time with said cattle. “9. After the end of the expedition referred to in the 8th finding, the said T. C. Stevens & Co. were organizing a second herd, to be sent through the same route, and E. C. Stevens was preparing and gathering the herd for such expedition, and while so engaged, on the 5th day of September, A. D. 1865, said E. C. Stevens was drowned, in the employ of said T. C. Stevens & Co. “ 10. It was understood and agreed between the said T. C. Stevens and Thomas Carney, as the firm of T. C. Stevens & Co., and E. C. Stevens, that E. C. Stevens should have a fourth interest in the profits of these cattle herds, as a compensation for his services, there being no contract that he was to make good any loss. “11. That the share of E. C. Stevens in the profits of the herd of cattle which were taken through, amounted to about $3,000. “12. That during the year 1872 the plaintiff took out letters of administration on the estate of E. C. Stevens, which was the first administration of the said estate since the said E. C. Stevens’s death. “13. That the second herd was not taken to Fort Union until long after, the death of E. C. Stevens. If ever taken there, the evidence fails to show what became of them. The evidence shows that when the cattle therefor were finally sold, that there was considerable loss, but it nowhere shows how much of a loss was sustained, nor whether the loss was the result of causes which arose before or after the death of E. C. Stevens. “ 14. That the understanding with which these cattle herds were gathered was, that E. C. Stevens and one Parkinson were to use the money furnished them to buy cattle to take to New Mexico, by Carney & Stevens, who were to own the cattle, and as compensation for the labor in buying and taking said cattle to New Mexico, E. C. Stevens and Parkinson were each to have one-fourth of the profits that came from the sale of said cattle. After the purchase of the cattle, but before the cattle were started to New Mexico, Carney & Stevens purchased Parkinson’s interest in the profits for $2,000, and E. C. Stevens went through with the cattle. “15. That the organization of these herds of cattle was to comply with a contract to supply certain Indians, made by the United States with some contractors, and which was being filled by Carney & Stevens; and this expedition to New Mexico by E. C. Stevens, and the second expedition, which was being organized when E. C. Stevens was drowned, was on the same contract and a continuance of the same agreement as to profits between E. C. Stevens and Carney & Stevens. “16. That the amount to be paid by Carney & Stevens to E. C. Stevens for his share in the first expedition did not depend on the result of the second expedition.” From these findings it would seem that sometime during the fall of 1864 an arrangement was made with deceased which contemplated the sending of two droves of cattle under his care to New Mexico, and that while engaged in this work, and prior to its completion, he died. Prima facie, payment for work is due when the work is done, and not due till then. Wages for services, when a specific time or amount of service is contracted for, are only due when the services are fully rendered, and it matters not how great may be the variety or amount of the services, provided they are included in a single contract. Where services are rendered under one and the same agreement, the statute of limitations begins to run from the termination of the contract, and not from the time when the services were rendered, though no work is done within the period of the statute. (Vanhorn v. Scott, 28 Pa. St. 316.) Against an account for work and labor done under an agreement for payment, not specifying at what time such payment should be made or how long such labor should be performed, the statute of limitations does not commence running until the labor ends. (Littler v. Smiley, 9 Ind. 116.) Ordinarily, parties fix by their agreement the time and mode as well as the amount of payment, at least in cases of im portance. But when they fail to express either, it is understood that they intend what the law implies. We see nothing to take this case out of the general rule. The only thing that tends to show this an exception, is the manner in which the compensation was to be determined, i. e., by the profits on each drove. If he was to receive a certain share of the profits on the first drove, irrespective of the results of the second, was it not due to him when those profits were ascertained and realized? Doubtless this was a circumstance from which, with very little additional testimony, a jury would be warranted in finding that payment was intended as soon as the profits were realized upon the first drove; but it does not, standing by itself, as matter of law prove that payment was then due. It does not of itself divide the contract, otherwise shown to be an entire one. Many reasons might have induced defendants to desire to retain payment until full completion of the contract. As they were furnishing the funds, they might need the money. They might desire to hold it as a guaranty of good faith, and against negligence or abandonment on the part of deceased. Whatever might have been the motive, unless they so contracted they were not bound to pay until the full completion of the contract. That the parties did not intend earlier payment, is supported by the fact that they did not pay; and also by the fact that Dudley, who was with deceased in care of the first drove, and who came in with him after closing up the sale, was settled with and paid; and by the further fact that defendants paid deceased at the same time the proceeds of some individual property sold with the drove. While of course these matters are not convincing and conclusive, yet they support the conclusion of the referee. Nothing else appears worthy of notice affecting the question, and we cannot say that the referee or court erred in concluding that the contract was an entirety, and payment due only upon the completion of the entire contract. As the contract was not completed at the time of the death of the deceased, he had no cause of action, and the statute did not commence to run before his death. We see no other matter requiring notice, and the judgment, will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by* Brewer, J.: This was an action appealed from a justice of the peace, for labor done in and about certain zinc smelting works. The question wa^ as to the liability of the defendant, no question being made as to the fact of the work or its value. The verdict was against the defendant. Upon a-motion for a new trial, the court ruled that it should be granted, upon the payment within thirty days of all costs in the district court, and in' default of such payment, that it should, be overruled, and .judgment entered on the verdict. The defendant alleges error. The grounds of the motion for a new trial were, that the verdict was contrary to the law and the evidence, that the court erred in admitting testimony, and in other rulings. No' claim was made on account of accident, surprise, or newly-discovered evidence. The claim of the defendant therefore was, that there was error on the part of the court or jury to its prejudice. The court, by sustaining the' motion, even conditionally, in effect found that such claim was correct; and yet it refused any relief to defendant, except upon payment of costs. Now when the claim for a new trial is based upon accident, or newly-discovered testimony, grounds which concede the correctness of the trial already had, there is often fairness and justice in requiring a payment of the. costs of such trial as a condition of a new one. For if the victorious party is without fault and the proceedings without error, it is a hardship on him to be compelled to relinquish what he has obtained and venture upon a new trial, simply on account of the intervention of some new fact in behalf of his opponent. It is often just to make the party who has thus obtained an opportunity to relitigate his case, pay the fruitlessly expended costs of the first trial. But a different rule prevails where the new trial is claimed and awarded, not on account of the intervention of some new fact, but because of wrong conduct ou the part of the successful party, or because the court or jury has at his instance and upon his solicitation committed error. In such case, if the error is a material one, the moving party has a clear, legal right to a second trial. He is the party without fault, and his adversary the wrongdoer ; and the new trial should as a rule go without costs. We are aware of the statute which provides that the “costs of motions and the like shall be taxed and paid as the court in its discretion may direct.” (Comp. Laws 1879, p.682, §588.) We also know’that often in trials both parties are in fact in some fault, and the motions for new trials cover all grounds, so that it is not always possible to determine upon what grounds the motion is sustained. But what we have suggested is, as to the rules which should control the discretion of the court in the matter of costs upon motions for new' trials. Now as we have stated, the ruling of the court was an expression of its opinion that there had been error prejudicial to the rights of defendant, an opinion with which, after examining the record, we fully concur. The essential facts are, that a tripartite written agreement was entered into between- L. D. Boone, the owner of certain zinc works, the defendant, and Louis Vogle, and Louis Goes, doing business under the name of the Consolidated Zinc Mining & Smelting Company, by the terms of which Boone was to put his works in repair and lease them. The defendant was to furnish zinc ore for smelting and the C. Z. M. & S. Co. were to hire all needed employés and run the works, smelting the ore furnished by the defendant, and after paying one stipulated portion of the product to Boone for the rent of the works and another stipulated portion to the defendant for ore, take the balance for its compensation. Evidently, from the terms of this agreement, no partnership was contemplated between these parties, but simply an arrangement for the rent of buildings and machinery and the reduction of ore to mineral. So the court instructed the jury, and the instruction was correct. The court also correctly in structcd as to the circumstances under which one not in fact a partner might become liable as partner to third parties by-reason of his conduct in respect to the partnership affairs, and charged that if the plaintiff did not at the time of doing the work understand that defendant was a partner or responsible for the work, he could not hold the defendant unless it was in fact a partner. Turning now to the testimony, we find the plaintiff, after testifying that he hired to the Consolidated Zinc Mining & Smelting Company, stating, “ I did not know at the time I hired with Mr. Vogle that he was in partnership with the North Center Creek Mining & Smelting Company, nor did I know it at the time I brought this action.” Indeed, the defendant was not a party at the commencement of the action, but made one subsequently by amendment. As the defendant was not in fact a partner, and as the plaintiff did not suppose it was a partner, it is difficult to see upon what ground a recovery against it can be sustained. The court was right in ruling that it was entitled to a new trial, and the error was in making the payment of costs a condition precedent. It should have been granted without condition. Without fault on its part, the defendant had been brought into court and compelled to litigate an unjust demand, and should not have been required to pay any costs the plaintiff had made as a condition of protection in its defense. The judgment in the district court will be reversed, and the case remanded with instructions to grant a new trial. All the Justices concurring.	[ -16, -6, -4, -36, 10, 96, 34, -40, 65, -127, -89, -13, -83, -109, 20, 113, 114, 121, 84, 107, 86, -93, 7, 75, -10, -77, -45, -43, -79, 108, -25, 116, 76, 48, -54, -43, 102, -48, -59, 84, -114, -116, -88, -50, -8, 66, 48, 62, 112, 11, 49, -98, -29, 46, 17, -57, -24, 44, 123, 53, 80, -80, -102, -115, 111, 16, -95, 55, -100, -26, 88, 44, -112, 57, 11, -24, 114, -74, 70, -43, 97, -71, 8, -30, 98, 1, 21, 111, -8, -120, 46, -34, -113, -89, -111, 88, 75, 13, -74, -99, 102, 22, -122, 118, -18, 21, 93, 44, 19, -117, -42, -77, -49, 44, -102, 66, -53, -93, 16, 96, -52, -24, 92, 69, 123, -101, -97, -97 ]
The opinion of the court was delivered by Valentine, J.: This is an anomalous action. Lovina M. Parker was and is the plaintiff, and W. R. Biddle was and is the defendant. The principal facts as set forth in the plaintiff’s petition are substantially as follows: On April 29, 1870, Philip B. Rich executed a note, and a real-estate-mortgage to secure it, to Enoch Johnson, for $4,000, due in one year after date. Johnson transferred this note and mortgage to the plaintiff. On November 20, 1870, Johnson died. In April, 1871, Biddle, as administrator of Johnson’s estate, claimed said note and mortgage, and by threats of prosecuting the plaintiff for a felony, obtained from her said note and mortgage. On July 22, 1872, Biddle collected $500 on said' note and mortgage from Rich, the payer thereof, and surrendered the note, and canceled the mortgage — making an entry of cancellation and satisfaction on the records of the register of deeds. The mortgagor, and a grantee of his, had the possession of the property, and its use, without paying rents or taxes, and so used it as to depreciate its value. The plaintiff foreclosed said note and mortgage — making Biddle, and all others claiming any interest in said note or mortgage or land, parties. Biddle defended said foreclosure suit — denying the plaintiff’s right to said note and mortgage, and claiming to own the same himself. He also caused the other-parties to defend. On May 6, 1877, judgment was rendered in the foreclosure suit in favor of the plaintiff and against all the defendants. The plaintiff was adjudged to be the owner of said note and mortgage, and entitled to foreclose the same,, and judgment was rendered accordingly in her favor and against the payer thereof, for the amount of the note and mortgage, and the mortgaged property was ordered to be sold to satisfy such judgment. The property was sold accordingly, but it did not sell for enough to satisfy the judgment; and Rich, the judgment debtor, is insolvent. On May 15, 1878, the plaintiff commenced this action, setting up the foregoing facts, and praying for a judgment against Biddle for $3,604 damages, and the costs of suit. The defendant demurred to the plaintiff’s petition, on the grounds that it did not state facts sufficient to constitute a cause of action in her favor and against him, and that any supposed cause of action intended to be set forth in the petition was barred by the two-years, three-years, and five-years statutes of limitation. The court below sustained the demurrer; and this is. the only ruling of the court below complained of. "VVe suppose there can be no question as to the correctness of this ruling. The question as to the ownership of the note and mortgage, including everything connected therewith, was adjudicated and settled in the foreclosure suit. The alleged trespass or wrong in taking and withholding the note and mortgage was barred by the said statutes of limitation long before this action was commenced. The $500 alleged to have been received by Biddle from Rich on the note and mortgage should be paid back to Rich, and not to the plaintiff. And Rich and his grantee had a right to the use and enjoyment of the mortgaged property, until it was finally sold away from them in the foreclosure suit. The plaintiff’s note and mortgage, of course, continued to draw interest during the whole of the litigation, and such interest was probably of more value than the use of the land ; but whether it was or not is entirely immaterial, for the plaintiff had no right to the use of the land. But we have said enough concerning this curious case. The judgment of the court below will be affirmed. All the Justices concurring.	[ -14, 104, -112, 14, 8, 96, 8, -78, -61, 0, -77, 115, 105, -61, 24, 45, -10, 45, -11, 121, -59, -77, 23, -86, -46, -14, -31, -43, -79, 92, -12, 87, 72, 48, -62, 117, -26, -30, -63, 84, -114, 7, 9, -60, -43, 64, 48, 123, 80, 77, 85, -82, -13, 45, 29, 78, 104, 46, 91, 61, -16, -8, -113, -123, 95, 19, -109, 103, -98, -63, -54, 10, -104, 53, 0, -24, 115, -90, -122, 116, 65, 59, 8, 102, 98, 16, 69, 111, -72, -104, 47, -10, -115, -90, -108, 88, 17, 8, -74, -99, 124, 17, 39, 118, -18, -99, 12, 108, 13, -54, -106, -109, -113, 50, -102, 67, -25, -105, 56, 113, -49, 32, 93, 102, 57, -101, -97, -4 ]
The opinion of the court was delivered by Horton, C. J.: Defendant was convicted in the district court of Butler county, of robbery in the first degree. From that conviction he appeals to this court. Various errors are alleged, but the most important and serious one called to our attention is the treatment by the court of the affidavit of the defendant read in evidence upon the trial. The defendant filed an affidavit for a' continuance of the case over the term, on account of the alleged absence of certain witnesses. Thereupon the prosecution consented that the facts alleged in the affidavit might be read and treated as the deposition of said witnesses, but after the affidavit was read in evidence under the agreement, the court held that it could be impeached, on the grounds —1st, that the witnesses were unworthy of belief; 2d, that the defendant might with reasonable diligence have procured the attendance of the witnesses in court, or have taken their depositions as prescribed by law; 3d, that the defendant had good reason to believe at the time he made the affidavit for a continuance, that if the witnesses would testify, :as he alleged, the testimony would be untrue; and 4th, that there are no such persons in existence as those named in the --affidavit. After all the evidence had been produced in the case, the ■counsel for the prosecution, over the objection of the defendant, discussed the evidence contained in the affidavit, and asserted to the jury that the evidence was fictitious and a myth; that none of said witnesses named therein had been sworn or testified or given evidence; and that the evidence in the affi•davit was a fraud and a put-up job, and rested solely upon the credibility of the defendant. In the charge to the jury, the court, in referring to the affidavit, said to the jury, against the objection of the defendant, “Do you believe the defendant acted in good faith in making his affidavit for a continuance, and truly believed he could procure the witnesses named therein, and that they would testify as he says?” To the ruling of the court, that the evidence in the affidavit could be impeached on the ground that the witnesses were ‘unworthy of credit, we perceive no objection, if the testimony in reference thereto was confined within proper rules, but the permission to impeach the affidavit for the other reasons given by the court was erroneous, and greatly prejudicial to the rights of the defendant. The course of argument pursued by the counsel for the prosecution in referring to the affidavit cannot be sustained, and the paragraph quoted above from the charge of the court was an improper direction to the jury. The affidavit in the case was read in evidence, upon the consent of the prosecution that the facts alleged might be read and treated as the depositions of the absent witnesses. Under this agreement and the law applicable to such cases, (Comp. Laws 1879, p. 643, § 317, p.756, § 210,) it should have been read to the jury, and treated by the court as the deposition of the witnesses therein named. Section 364 of .the code provides that “no exceptions to depositions other than for incompetency or irrelevancy shall be regarded unless -made and filed before the commencement of the trial.” "Whether the defendant had used due diligence to obtain a continuance Was a matter to the court, preceding the argument to permit the affidavit to be read as a deposition, and after such agreement the question of diligence was immaterial To permit the defendant’s belief as to what the absent witnesses would testify to, if'present, or the actual existence of said alleged witnesses to be put in issue, would bring new and independent matters before the court for trial, which would have the effect to extend the testimony outside of the points-in issue in the case of a plea of not guilty to the charge-of the information, and would require a defendant to be prepared to answer to particular facts, of which he had no notice Under the construction and decision of the court, the consent to have an affidavit read as a deposition, would frequently result in entrapping a defendant in a net and render him absolutely defenseless. The consent would literally be the-“apple to the eye, but ashes to the touch.” In the first place, parties are not allowed a continuance until they make a proper showing to a court; then the adverse party is under no obligation or compulsion to agree that on the trial, an affidavit deemed sufficient to justify a court to grant a continuance, shall be read as a deposition y but if such consent is given, it cannot be withdrawn, or changed after the trial is actually commenced. Again, if a, party knowingly makes a false and corrupt affidavit to get an unfair advantage, or further time, he can be duly convicted therefor, but it would be hardly just or proper on a trial of a charge of robbery, to try a defendant for perjury. Complaint is further made to the refusal of .the court to delay the trial,, until the attendance could be obtained of certain material witnesses, who had been duly subpenssd, and were within the jurisdiction of the court. As a new trial will be-necessary, it is sufficient to say, that the defendant has a constitutional prerogative to have compulsory process to compel the attendance of witnesses in his behalf. (Sec. 10, Bill of' Bights.) This privilege is stripped of all its benefits to a defendant in a criminal case, if such defendant is forced tetria!, and his trial is concluded, before the return of com pulsory process issued to bring into court' witnesses in his behalf, who have disobeyed subpenas duly served upon them. Of course, no court has the right to limit or deny this constitutional guaranty against the protest of an accused. If a defendant uses due diligence in asking for compulsory process, in having such process issued against a disobedient-witness, the trial ought not to be concluded before the return of such process, or a reasonable showing made for its non-return. The judgment of the district court will be reversed,, because of the errors commented upon, and a new trial, awarded. The defendant will be returned from the penitentiary, and delivered over to the jailer of Butler county,, to abide the order of the district court of that county. All the Justices concurring.	[ -80, 104, -31, -65, 40, -64, 8, -104, -77, -95, -74, 115, -11, -46, 4, 115, -2, 125, 85, 123, 68, -73, 119, 65, -78, -77, -54, 85, -79, -22, -25, 93, 77, 52, 66, -43, 102, -54, -57, 84, -118, -89, -87, -56, 90, -40, 36, 50, 112, 15, 113, 62, -13, 42, 24, -62, -23, 40, 75, 45, 64, -71, -114, -51, 73, 19, -77, 6, -114, 2, -8, 46, -104, 49, 1, -8, 115, -106, 2, -44, 107, 41, 40, 102, 98, 1, -115, -87, -68, -103, 47, 111, 31, -89, -110, 17, 75, 41, -74, -39, 116, 50, 14, -16, -29, 4, 25, 108, 7, -97, -46, -77, 15, 52, -66, 122, -13, -93, -112, 113, -59, -16, 85, 103, 56, -71, -50, -14 ]
The opinion of the court was delivered by Horton, C. J.: Under the authority of the above case of James C. Grinter v. The Kansas Pacific Railway Company, and the principles therein decided, the order and judgment of the district court in this case will also be affirmed. All the Justices concurring.	[ -76, 106, -11, -34, 26, 98, 50, -103, 107, -80, -90, 83, -119, -37, 21, 61, 3, 93, -41, 107, -44, -45, 71, -31, -109, -13, -37, -49, 25, 88, -18, -34, 77, 48, 66, 69, -26, -56, 65, 20, -50, -107, 41, -64, 17, 96, -68, 122, 18, 94, -31, 126, -13, 42, 25, -61, -88, 44, -7, -91, -112, -79, -118, 68, 69, 22, 3, 32, -99, -121, 100, 46, -40, 57, 8, -4, 19, -92, -110, -12, 105, -7, 8, -26, 103, 35, 13, -17, 60, -104, 14, -6, -97, -26, 54, 25, 98, 64, -105, 29, 101, 6, -125, 126, -29, 4, 29, -12, 1, -113, -80, 35, -121, 116, -102, 66, -53, -31, 49, 36, -62, -16, 93, 71, 18, -101, -98, -68 ]
The opinion of the court was delivered by Horton, C. J.: The question presented in this case has already been treated by so many courts, with such fullness of learning and ability, and so often adjudicated, that a reference to the conclusions obtained and the more important of the decisions is all we deem necessary. An attachment made prior to the period of four months next preceding the commencement of proceedings in bankruptcy is not dissolved under the bankruptcy act; not being dissolved, it remains in full force.' Where the attachment is made prior to that time, the debtor’s title to the property attached passes to the assignee subject to the creditor’s lien acquired by virtue of the attachment. This lien may be enforced in the state court against property attached, but not against the person of the defendant or any other property. The discharge is in personam, and does not affect liens, except those based on attachments or mesne process levied .within four months before the filing of. the petition, and those which can be avoided by showing that they were procured or preferred with a view of giving the preference prohibited by §§5021 and 5128 of the bankrupt act. As the proceedings in bankruptcy did not oust the state court issuing the order of attachment of jurisdiction to enforce the attachment lien in this ease, and as the discharge in bankruptcy did not annul or affect such lien, the ruling of the trial court was erroneous. Sections 5044, 5055, U. S. Rev. Stat. 1875; Bump on Bank. (6th ed.), 368; Daggett v. Cook, 37 Conn. 341; Leighton v. Kelsey, 57 Me. 85; Bates v. Tappan, 99 Mass. 376; Robinson v. Wilson, 15 Kas. 595. The decisions of Taylor v. Bonner, 38 Tex. 521, and Johnson v. Pogue, 39 id. 92, to which we are referred by counsel for defendants in error as conclusive, are overruled in Elliott v. Booth, 44 id. 180,191. The order and judgment of the district court will be reversed, and the case remanded. All the Justices concurring.	[ -80, 120, -36, -67, 74, 98, 43, -102, -39, -94, -95, 83, -17, -61, 4, 105, 116, 109, -11, 104, 85, -73, 50, -53, 83, -77, 81, -33, -79, -20, -25, -97, 12, 40, -126, -43, 101, -117, -47, 92, -54, -125, -119, -28, -63, -110, 48, -93, 82, 15, 69, 85, -13, 46, 24, 78, 105, 40, 72, 57, -48, 48, -115, 7, 127, 23, -77, 5, -104, 71, -40, 44, -128, 59, -127, -18, 115, -106, -122, 84, 107, 27, 40, 102, 115, -127, 101, -19, -36, -104, 14, -10, 31, -90, -111, 89, 11, 77, -67, -99, 109, 20, -124, -2, -22, 68, 23, 108, 9, -113, -106, -73, 15, 61, -102, 91, -57, -29, 49, 97, -52, -96, 92, 35, 57, -101, -122, -39 ]
The opinion of the court was delivered by Valentine, J.: This was an action on a promissory note- and a mortgage; and the principal question involved in the-case is, whether the note and mortgage were barred by the-statute of limitations, or not. The note was given by John D. Wilson to William Pears, for $1,500, dated June 1, 1868,. and due two years after date. The mortgage was a real-estate mortgage, given at the same time by said Wilson and wife-(Mary Wilson) to said Pears, to secure the payment of said note. On the back of said note the following words were indorsed, to wit: “June 1st, 1872, paid one hundred dollars on note and mortgage.” “April 2d, 1874, paid on within note-fifty dollars.” This action was commenced May 10, 1877,. by said Pears, against said Wilson and wife, and also against-one Jacob Leu, who it was alleged claimed to have some interest in the mortgaged property, but who in fact had no such, interest. It was also specifically alleged in the plaintiff’s petition, that said Wilson and wife paid said sums of money as indorsed on said note, and at the times therein specified. And it was further alleged, that said indorsements were made at the request of the defendants ; and a copy of said note, with the indorsements thereon, is attached to the plaintiff’s petition and made a part thereof. The Wilsons did not make any defense to the plaintiff’s action, but Leu filed an answer and cross-petition, setting forth various defenses and cross-actions, among which were a general denial, a plea of the statute of limitations, that the mortgaged property belonged absolutely to him (Leu), and that he also had a mortgage on the property. No part or portion of this answer and cross-petition was verified by affidavit. The plaintiff replied to this answer and cross-petition, and the Wilsons answered thereto. .A trial was then had before the court without a jury, and the court made various special findings, among which are the following: “3. That on the back of said note, sued on by the plaintiff, the following words appear thereon: ‘June 1st, 1872, paid one hundred dollars on note and mortgage. April 2d, 1874, paid on the within note fifty dollars;’ which writing was conceded to be in the handwriting of the plaintiff. And there was no evidence on the trial of the case when the writing on the back of said note was in fact made, or that any sums of money had ever been paid on said note, by either of said defendants. Said note so written upon was offered and read in evidence, over the objection and exception of Jacob Leu. Plaintiff is now the holder and owner of such note, and the mortgage to secure the same. “4. There was no evidence received or offered on the trial of said case, showing payment of any sum or sums of money on said note, other than the said writing or indorsements on the back of said note. The said note and said mortgage were offered in evidence by plaintiff, the statement made by Wilson in finding No. 10 being no evidence of such payment.” “10. That said defendant, John D. Wilson, makes no defense to the claim of plaintiff, and since the commencement of this suit, by deposition in this case, read on this trial, he has testified the amount of said note to be due and unpaid, except the credits thereon.” The court below held that the plaintiff's note and mortgage were barred by the statute of limitations, and, as between him and Leu, rendered judgment accordingly. In this we think the court below erred. Sec. 108 of the civil code provides that “in all actions, allegations of the execution of written instruments and indorsements thereon . . . shall be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent or attorney.” Now no allegation of the petition concerning said indorsements on said promissory note was put in issue by any denial verified by affidavit, and hence all said allegations, and said indorsements “must be taken as true.” And everything that these indorse ments will reasonably prove must also be taken as true, unless the contrary is shown to be true. Thus, it must be taken as true that on June 1, 1872, a payment of one hundred dollars was made on plaintiff's said note and mortgage, and that on April 2, 1874, another payment of fifty dollars was made on the note, (See 1 Greenl. Ev., §§ 121, 122.) Andas men seldom pay debts unless they are liable to pay them, it must also be presumed that these payments were made by said John D. Wilson, who was liable on the note, or by himself and wife, who were jointly liable on the mortgage. Indeed, it will generally be presumed, where a payment is shown to have been made, but where it is not shown , who made it, that the party who is under legal obligation to make the same, made it. (Scholey v. Walshy, Peake’s N. P. Cases, 24.) It would be so much outside of the ordinary course of things —so unnatural — that any other person should make the payments, that no presumption or supposition of that kind could be indulged in for a moment; and presuming that Wilson, or Wilson and wife, made said payments, as the same are indorsed on said note, then neither said note nor mortgage was ever barred by any statute of limitations, not even as to the defendant Leu. (Waterson v. Kirkwood, 17 Kas. 9, 13, 14.) The judgment of the court below will be modified so as to make the plaintiff’s mortgage the prior lien. In other respects the judgment will remain as rendered by the court below. Horton, C. J., concurring.	[ -14, 126, 52, -34, 90, 96, -88, 24, -54, 32, -77, 115, -23, -62, 4, 45, -26, 47, 85, 107, -59, -77, 39, 0, -13, -77, -47, 85, -79, -1, -28, 87, 12, 52, -54, -43, -26, -54, -63, 86, 78, -123, -88, -60, -47, 64, 52, 123, 64, 76, 117, 102, -77, 45, 25, 78, 105, 40, 75, 25, -48, -7, -97, -123, 95, 22, -111, 117, -106, 77, 104, 10, -112, 53, 1, -24, 115, -90, -122, 116, 103, -69, 41, 38, 102, 48, 69, 127, -36, -104, 38, 86, 29, -122, -46, 88, 3, 36, -65, -97, 124, 16, 39, -2, -17, 29, 25, 96, 15, -117, -42, -110, 31, 122, -102, 3, -9, -109, 32, 97, -57, 32, 92, 97, 59, -109, -114, -47 ]
Per Curiam: The judgment of the court below in this case-will be reversed, upon the authority of the following cases, to wit: Comm’rs of Saline Co. v. Geis, 22 Kas. 381; Comm’rs of Lyon Co. v. Goddard, 22 Kas. 389. See also the following statutes, under none of which can the plaintiffs’ cause of action, as they have stated it in their petition below, be maintained, to wit: Gen. Stat. 1868, p. 1058, § 120; Laws 1876, p. 96, § 145; Comp. Laws 1879, p. 968, § 145.	[ -79, -24, 92, 60, 10, 96, 48, -125, 81, -31, -27, 83, 111, -38, 16, 63, -29, 41, -15, 123, -41, -73, 22, 67, -46, -45, -45, -41, -80, 77, -10, -4, 76, -72, -86, -59, 70, -62, -123, -34, -54, -125, 9, -19, -55, -96, 48, 107, 82, 3, 101, 63, -29, 46, 25, 67, 41, 60, -53, -87, 112, 49, -98, 69, 109, 7, -79, 6, -104, -57, 76, 58, -112, 49, 1, -8, 51, -74, 71, 20, 73, 59, 12, 114, 103, 2, -95, -25, -88, -104, 14, -34, -115, -90, -43, 24, -54, 41, -74, -99, 100, 16, 15, 122, -30, -99, 23, 108, 3, -50, -108, -79, 23, 121, -98, 67, -21, 51, 48, 113, -127, 98, 124, 67, 51, -109, 14, -12 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by F. M. Johnson against the board of county commissioners of Jefferson county, to recover for money paid by him upon ,a certain tax sale claimed by him to be invalid. This sale was consummated on May 6, 1874, for the taxes of 1873. The plaintiff (defendant in error) claims that this sale was void, for the following reasons: “1. There was no sufficient description of the land sold. “2. The sale was for many times the amount of the taxes levied. “3. No certified tax roll of 1873 was ever delivered to the county treasurer.” We shall consider these reasons in the above order. I. The description, under which said land was taxed and sold was as follows: “The S.W.¼ survey 18, 170 acres, K. H. B. I. L., Jefferson county, Kansas.” This description written out in full means as follows: The southwest quarter of survey 18,'containing 170 acres, of the Kaw or Kansas halfbreed Indian lands, situated in Jefferson county, Kansas. It appears from the facts admitted and proved in this case, that there was and is a piece of land containing about 682^^-acres, situated in said Jefferson county, designated on the official survey plats of the United States as “survey eighteen (18) of the Kansas half-breed lands;” that this land was never divided or subdivided by authority of the United States into quarter-sections or otherwise, but that in 1867 the county surveyor of Jefferson county divided and subdivided it, making the southwest division thereof to contain about one-fourth of the entire tract, or about 170 acres. And it also appears that this survey or division and subdivision of the tract made by the county surveyor was properly recorded in the county surveyor’s registry of Jefferson county, as provided by law; (Gen. Stat., pp. 289, 290;) that at this time said southwest subdivision was owned and occupied by Philipi Bowers; that from that time hitherto said south west, subdivision has been assessed and taxed and known to the county officers of Jefferson county by the description under which it was sold to the plaintiff; that said Bowers paid the taxes on said land as so assessed and taxed from 1867 up to 1871; that about 1871 or 1872 G. R. Hines became the owner of the land (said subdivision) by virtue of a sheriff’s deed and a deed of conveyance from Bowers to himself; that the land was afterward sold for the taxes of 1872; that Hines became the purchaser of the tax-sale certificate, and afterward procured a tax deed thereon, in which tax-sale certificate and tax deed the land was described as “the southwest quarter of survey eighteen (18) of the Kansas half-breed lands;” that on May 6, 1874, the land was again sold for taxes- — -this time for the taxes of 1873 — and the plaintiff was the purchaser as aforesaid, paying therefor $110.78; that on December 21, 1874, the plaintiff paid the taxes on said land for the year 1874, and had the amount thereof, which was $124.81, indorsed on his tax-sale certificate; that about the 9th of January, 1878, the plaintiff supposed that he had discovered that “said tax sale was invalid, and asked the county clerk to indorse on said certificate a refusal to make a tax deed thereon;” that the clerk probably did not make any such indorsement, but why he did not, is not shown; that on April 9, 1878, the plaintiff delivered said tax-sale certificate to the clerk, who executed a tax deed to him thereon; that o» the same day the plaintiff presented his claim to the board of county commissioners for the sum of $321.35, for said taxes paid by him, and interest thereon and costs, claiming that the whole of the tax proceedings with reference to' said land were void. The commissioners rejected his claim, and then he appealed to the district court, where his claim was allowed, and then the commissioners brought the case to this court for review. ' The facts admitted and proved also show that there was no other land in Jefferson county that would answer to the description by which this land was assessed, taxed, sold and conveyed, and this land was not assessed or taxed by any other description. The description used by Bowers and Plines in giving and receiving deeds, except said tax deed executed to Hines, was different from the description used in said tax proceedings, being by metes and bounds. With reference to descriptions of lands used in tax proceedings, we would refer to the following statutes: Gen. Stat. of 1868, p. 1049, §93; Comp. Laws of 1879, pp. 962, 970, §§ 119, 153. Said sections 93 and 119 read as follows : “It shall be sufficient to describe lands in all proceedings relative to assessing, advertising or selling the same for taxes, by initial letters, abbreviations and figures, to designate the township, range, section, or parts of section, and also the number of lots and blocks.” Said section 153 reads as follows: “In all advertisements, certificates, papers or proceedings rehdlng to the assessment and collection of taxes and proceedings founded thereon, any description of lands which shall indicate the land intended with ordinary and reasonable certainty, and which would be sufficient between grantor and grantee in an ordinary conveyance, shall be sufficient.” With reference to irregularities, wo would cite the following statute: “No irregularity in the assessment roll, nor omission from the same, nor mere irregularities of any kind in any of the proceedings, shall invalidate any such proceeding, or the title conveyed by the tax deed; nor shall any failure of any officer or officers to perform the duties assigned him or them upon the day specified work an invalidation of any such proceedings, or of said deed.” (Gen. Stat. of 1868, p. 1057, §113; Comp. Laws of 1879, p. 967, §139.) Eor decisions with reference to the sufficiency and insufficiency of descriptions in general of land, see cases cited by Mr. Hilliard in 2 Hill, on Real Prop., ch. 88, pp. 517 to 549, §§51 to 115. Also see 4 U. S. Dig. (F. S.), pp. 529 to 544, ¶¶ 1437 to 1751. The objections urged against the description in the present case are as follows: It would be difficult to ascertain the exact boundaries of the southwest quarter of said survey 18, as such boundaries have never been established except by the county surveyor of Jefferson county, and as said survey is of a trapezoidal form, bounded on the south side by the Kansas river, with its east-and-west boundary lines of unequal lengths, containing more than four times 170 acres of land, and the land in question being designated in said description by initial letters only. Now under all the authorities, descriptions may be made in any form or in any manner which the parties may choose, provided such descriptions are not so uncertain or indefinite as to render it impossible to ascertain where the land lies. If such descriptions are sufficiently definite to designate the land by the aid of surrounding circumstances, or if they can be made sufficiently definite by the aid of matters or things had in contemplation by the parties, then such descriptions will be held to be sufficient and valid, although they might be considered slightly defective if viewed by themselves alone or without the aid of auxiliary circumstances. Indeed, descriptions are never absolutely perfect in and of themselves. They always need the aid of something outside of their own expressed terms. If a description refers to a section corner, the location of this section corner must always be ascertained from something wholly independent of the description itself. It must be ascertained from field notes, from plats, from surveys, and from the recollection of witnesses. If the description refers to a section line, then the location of this section line must be ascertained in the same manner, or if it refers to' a quarter-section, then the boundaries of this quarter-section must be ascertained by the same processes; and in ascertaining these boundaries, there is always room for differences of opinion, for disputes and litigation. Quarter-sections are generally supposed to be square, and to be exact fourths of the sections of which they form a part; but while this supposition approaches truth, it is scarcely ever correct. Quarter-sections are seldom, if ever, squares. Nor are they rectangles, or parallelograms, or even trapezoids; but in nearly all cases they are pure and simple trapeziums, and sections are equally as bad. They are usually bounded by section corners, unequally distant from each other, and four quarter-section corners not on a line with the section corners, and four broken lines of unequal lengths passing through these corners, with no portions of such lines parallel, and none of the angles right angles, and each section containing four quarters of unequal size, and such as we have heretofore described. Of course, the government intends that each section shall be a square, containing 640 acres of land; and while sections in fact closely approach these ideal sections in form and size, yet they never in fact reach to such perfection. The quarter- section corner in the middle of the section is seldom, if ever, established by the government, and the other corners are often so obliterated that no person could tell where they originally stood. Yet, with all these irregularities and uncertainties incident to government surveys, government corners and government lines, there can be but little difficulty in making good and valid descriptions founded upon such surveys. “The N.W.\| of the S.E.-j: of the N.W.i” of a certain section of land would be a valid description of a piece of land in such section, although such piece of land would not touch a government corner nor a government line, and no one could tell, without a survey, its exact location or its exact form or size. It would contain about ten acres of land in nearly a square form. We do not think that the description in the present case is void; and whether it is voidable, or not, we do not think that it is necessary now to decide. It contains but few more of the elements of uncertainty than descriptions usually do; and these elements of uncertainty are but slightly greater than such elements usually are. Certainly, none of the persons interested in knowing what this description. meant had any right to be misled it; and it can scarcely be possible that any person was misled by it. Hines owned the land, and knew that it was taxable; he knew that it had previously been taxed by this description; and he ought to have known that it was so taxed at this time. At this time, it was taxed by this description, and was not taxed by any other description. Hines ought to have known this; he knew whether he paid his taxes or not; he ought to have paid them, but he did not do so, and his land was sold for such taxes. And -it was sold by said description, and Johnson bought it, and afterward a tax deed was issued thereon to him. Now if the county is bound to pay these taxes back to Johnson, then Hines will probably be wholly relieved from paying the same, and the county will probably have to lose them. This would not be just. But if, on the other hand, the county does not pay these taxes, then Hines may have, to pay them, or lose his land; and it would be right that he should do the one or the other. And while there is a prospect for Johnson to get his money or the land from Hines, he should not recover the money from the county. The description and the tax deed founded thereon not being void, but being at most only voidable, if Johnson should put his tax deed on record, and then occupy the land for the period of time prescribed for the limitation of actions in tax-title cases, he would get a good title to the land. He now has at least an inchoate title, which may in time ripen into a perfect title; and if it should ripen into a perfect title, then he will have the land, and the county will have the taxes. And if Hines makes no objections to the forthcoming of such an event, Johnson should not; but if Hines should object (and whether he will or not does not yet appear), still the county may be able to retain the taxes. Certainly it will if no action is brought by any person; and it will if Hines should bring the action and fail. And even if Hines should bring the action and succeed, if the action were for the recovery of the land, or to set aside any of the tax proceedings, the county would still retain the taxes, for before Hines could obtain any relief he would have to pay to Johnson the full amount of the taxes paid by Johnson, with interest, and the county would still retain the taxes paid to. it. If, however, Johnson should commence the action, and should fail because the sale was invalid, then the county would be liable to pay back the taxes, under § 146 .of the tax law. (Comp. Laws 1879, pp. 968, 969.) And that would be soon enough for the county to pay them. As the tax deed is not void, but at most only voidable, we think that Johnson should first exhaust all his remedies to make his tax deed available before asking the county commissioners to refund any of the money paid by him for his tax title. A purchaser of tax titles should treat the county (which is substantially his grantor) with the .utmost good faith, and should try to get either the land or the taxes from the person who ought to pay the taxes, before he comes back to the county asking for a repayment of the same. Of course, if the sale was clearly and absolutely void, he would not be required to take all this trouble. But in this case, as we have already stated, the sale is not clearly and absolutely void, but at most only voidable. Johnson however claims that the sale was void for two other reasons, but as we do not think that the sale was void for these two reasons any more than for the reason of an indefinite description of the land, and at most was only voidable, all that we have said with reference to void and voidable sales, while discussing said indefinite description, will apply to these other two reasons. We shall now consider these other two reasons. II. The claim that “the sale was for many times the amount of taxes levied ” is founded upon the fact that the board of county commissioners, in levying the various taxes for the year 1873, on the taxable property of Jefferson county, did not, in every instance, and for each particular tax, state in their record that they levied a certain number of mills on the dollar, but merely stated that they levied such number of mills, omitting the words “on the dollar.” But no one seems to have been misled as to what the county commissioners meant, and we do not think that any person familiar with county business could have been misled as to what they meant. None of the county officers were misled. The county clerk calculated the taxes cqrrectly, and placed them upon the tax roll as usual, and they were collected in the ordinary way. In the present case the land was sold for just the amount of the taxes placed upon the tax roll, and the amount appearing to be due against the land, with interest, penalty and cost. It does not appear that any question has ever before been raised with regard to said levy. We think the failure on-the part of the county board to make the levy more definite was a mere irregularity, and that it did not render the tax sale or any of the other tax proceedings absolutely void. III. Neither was the failure of the county clerk to attach his certificate to the tax roll of 1873 anything more than a mere irregularity; and we cannot now, at this late day and after the tax roll has been considered valid for several years, hold' that it and all the subsequent tax proceedings for that year are void, merely because of such failure. If these questions had been raised earlier, or if they were now to be considered as between the original owner of the land and the tax-title purchaser, and the original owner of the land was desirous of paying his taxes and-redeeming his land, and the tax-title purchaser was resisting the same, we should be much more inclined to consider said irregularities as of a serious nature and of far greater importance than we now do under the circumstances of this case. The judgment of the court below will be reversed, and cause remanded for a new trial. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This was an action brought by John Brooks against E. B. Eager, to perpetually enjoin Eager, as treasurer of Cowley county, from collecting a certain alleged illegal personal-property tax assessed against Brooks. The defendant demurred to the plaintiff’s petition, on the ground that it did not state facts sufficient to constitute a cause of action; and the court below sustained the demurrer, and rendered judgment in favor of the defendant and against the plaintiff, for costs. Brooks then took the case to the supreme court on petition in error, where the judgment of the district court was reversed, on the authority of Wilcox v. Ellis, 14 Kas. 588, and Fisher v. Comm’rs of Rush Co., 19 Kas. 414; and the cause was then remanded to the district court for further proceedings. After the cause was remanded to the district court, Brooks filed a supplemental petition, making the board of county commissioners of the county of Cowley a party defendant, and setting forth that after the rendition of the foregoing judgment by the district court, and before the proceedings in error aforesaid were instituted in this court, Eager, as county treasurer as aforesaid, issued and delivered to the sheriff of said county a tax warrant for the collection of the aforesaid tax; that the clerk of the district court was about to issue an execution for the costs adjudged against Brooks in that court, and that under these circumstances Brooks paid the full amount of said tax and costs. The only relief demanded in the supplemental petition was a personal judgment against both Eager and the board of county commissioners of Cow ley county for the amount of the tax and costs paid as aforesaid by Brooks. James McDermott, as county attorney of the county of Cowley, appeared for Kager and the board of county commissioners of said county, and moved to strike the supplemental petition from the files. The petition was then refiled, with leave, and then the motion was sustained by the district court on the last three grounds therein set forth, viz.: “2. Said supplemental petition sets forth no cause of action whatever against E. B. Kager, defendant to the original petition, but is wholly against the board of county commissioners of the county of Cowley, who are not parties to the original petition. “3. Said supplemental petition changes substantiálly the cause of action set forth in the original petition, and sets up a new and entirely different cause of action against new and entirely different parties. “4. The cause of action set forth in the said supplemental petition did not exist at the time of the filing of the original petition, but has accrued since such filing of said original ■petition.” The sustaining of this motion is the alleged error complained of in this court. We do not think the court below erred in sustaining said motion. The first petition was to enjoin Kager alone from collecting a tax, and he was the only party defendant. The second petition was to recover a money judgment against both Kager and the county board on two causes of action arising subsequently to the filing of the first petition, one for illegal taxes paid on said tax warrant, and the other for costs paid on said erroneous judgment; and both Kager and the county board were made parties defendant. Even if the court had the power to allow the plaintiff to abandon his first cause of action, and to set up two new ones with new parties, as the plaintiff desired, and to do all this in one and the same case, still we do not think that the court was bound to exercise any such power in this case. We think the court properly exercised its discretion in this case. After the court sustained said motion, the defendant still failing to answer or to further demur to the plaintiff’s orig inal petition, the court on its own motion rendered judgment on the plaintiff’s original petition in favor of the plaintiff and against the defendant for costs, and perpetually enjoining the defendant from collecting any of said alleged illegal tax. We do not think that the plaintiff has any reason to complain of the judgment -of the court below, and therefore it ' will be affirmed. All the Justices concurring.	[ -78, -18, -72, -98, 58, -32, 34, 56, 0, -79, -74, 115, -87, -120, 0, 123, -14, 29, 84, 122, 70, -73, 23, 96, -78, -77, -47, -41, -79, 74, -10, 86, 12, 52, -22, -35, 103, -54, -59, 80, -114, 13, 41, -52, -39, -56, 52, 107, 114, 11, 49, -82, -14, 42, 28, -61, 41, 44, 89, -93, 16, -79, -102, 21, 29, 2, 49, 38, -102, 71, 72, 42, -104, 49, 66, -8, 122, -90, -122, -44, 73, -103, 40, -92, 99, 3, -83, -17, -72, -104, 46, 91, -99, -90, -76, 72, 122, 9, -74, -99, 125, 16, 7, -6, -25, -59, 29, 124, 5, -114, -106, -79, -113, 56, -110, 19, -5, 35, 48, 113, -59, -37, 88, -57, 48, -101, -42, -40 ]
The opinion of the court was delivered by Valentine, J.: This was an action of replevin brought by Andrew Hinshaw against William T.-Starr before a justice of the peace, to recover twenty-eight head of sheep and lambs. The action was regularly brought and tried, except that the plaintiff did not file any formal bill of particulars. The plaintiff, however, and the justice, treated the plaintiff’s affidavit, upon which the summons and order of delivery was issued, as a bill of particulars. We perceive no error in this. The affidavit contains everything that is necessary to be stated in a bill of particulars; and while a plaintiff in a replevin suit in a justice’s court might very properly file an additional paper as a bill of particulars, yet if - he chooses to use his affidavit as such, and the court permits him to do so, we do not think that any material error is committed. The statutes do not require that any additional paper be filed as a bill of particulars in a justice’s court. The case of Crawford v. Furlong, 21 Kas. 698, which was an action commenced in the district court, has no application to a bill of particulars in replevin in a justice’s court. The plaintiff in error (defendant in the justice’s court) misconstrues the words “as in other cases” found in section 58 of the justice’s code. Said section simply means that in replevin cases before justices the summons shall be the same “as in-other cases” under the justice’s code, with the addition of a command to seize the property. Said section has no reference to a bill of particulars. , There was no tenancy in common in this case. Hinshaw owned all the property. Under the contract between Hinshaw and Stroud, all the property would necessarily remain Hinshaw’s until the end of the three years, and probably until separation and division. But long before the three years had expired, Stroud, in v-iolatiou of said contract, sold the property to Baxter, and Baxter to the defendant, Starr. Under such circumstances, neither Stroud, nor Baxter, nor Starr, could ever become the owner of any portion of the property. The justice of the peace at first rendered judgment in favor of the plaintiff, and against the defendant, for all the property replevied. Afterward, the justice modified this judgment so as to give to the defendant four of the lambs. And the district court affirmed the judgment of the justice as thus modified. Now whether the modification of the judgment was valid or void, the district court did not err materially as against the defendant, Starr, (plaintiff in error,) by affirming the judgment as thus modified. The modification was for the benefit of the defendant, Starr. But suppose that, the modification was void; then the district court itself had the power to make the modification. (Civil Code, § 540; Comp. Laws of 1879, p.674.) Of course, under the circumstances of this case, the court would err in making the modification, if the justice did in making it, but the error would be in favor of the defendant, Starr, and not against him, and the defendant has no right to complain because thereof. The judgment of the court below will be affirmed. All the Justices concurring.	[ -78, 108, -48, -84, 26, 96, 42, -104, 113, -85, 39, 115, -19, -62, 20, 115, -29, 109, 81, 107, 86, -93, 6, 65, -13, -14, -45, -59, -75, 76, -26, 86, 76, 33, -54, 21, -26, -56, -119, 22, -114, 45, 33, -27, -7, 72, 52, 57, 0, 75, 113, -114, -77, 46, 31, -61, -85, 40, 89, 41, 80, -48, -113, -51, 91, 18, -109, 38, -44, 67, -38, 94, -102, 53, 3, -24, 115, -90, 6, -12, 45, -71, 40, 102, 98, 1, 65, 47, 120, -120, 46, 124, -115, -90, -112, 24, 107, 69, -106, -99, 125, 16, -89, 124, -26, -115, 29, 108, 9, -113, -106, -69, 77, 56, -104, 19, -22, 3, 16, 116, -49, -16, 93, 103, 88, -109, -114, -38 ]
The opinion of the court was delivered by "Valentine, J.: This is an action of habeas corpus, brought in this court by Charles H. Payson against A. T. Shenneman, sheriff of Cowley county, charging the defendant with unlawfully and illegally restraining the plaintiff of his liberty. It appears from the application of the plaintiff and the return of the defendant (and the truth of the return is admitted by the plaintiff), that the plaintiff has been sentenced to imprisonment in the penitentiary by the district court of said Cowley county, and that the defendant holds the plaintiff in custody under such sentence. The only question now presented to this court is, whether said sentence is void, or not. If it is void, the plaintiff is of course illegally restrained of his liberty; but if it is valid, then it is admitted that he is legally and rightfully restrained of his liberty. The question is not whether the sentence is irregular only, or voidable; it is not whether the sentence might not be set aside or reversed for error, if the case were brought to this court on appeal; but it is whether such sentence is absolutely void, under all circumstances, if attacked collaterally as well as if attacked directly. The plaintiff, of course, claims that the sentence is void; and he makes this claim upon the sole ground that the acts for which he was sentenced are not punishable under the laws of the state of Kansas. The plaintiff was charged, tried, convicted and sentenced for wrongfully obtaining the signature of Lena McNeil to a certain deed of conveyance of real estate, under the following circumstances, to wit: The said Lena McNeil, desiring and intending to convey said real estate to her mother, Martha E. McNeil, requested the plaintiff to draft and prepare a deed for that purpose, and he, pretending to do so, wrongfully and fraudulently drafted a deed conveying the property to himself; and then, by false pretenses, obtained her signature to such deed, and by like false pretenses, obtained and retained the possession of the deed, ostensibly for the purpose of having it recorded for Lena McNeil, but really to have it recorded for himself. The information states the facts much more fully than we have stated them. ' The statutes under which this prosecution was had read as. follows: “Every person who, with intent to cheat or defraud another, shall, designedly, by means of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, right in action, or any other valuable thing or effects whatsoever, upon conviction thereof shall be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing [so] obtained.” (Crimes Act, §94.) “If any person steal or embezzle any will of real or personal property, or any deed or other instrument of writing, being or purporting to be the act of another, by which any right or interest in real or personal property shall be or purport to be assured, transferred or conveyed, or in any way changed or affected, shall be adjudged guilty of grand larceny, without reference to the value of the instrument so stolen or embezzled, and shall be punished by confinement and hard labor not exceeding five years, or in the county jail not less than six months.” (Crimes Act, §84; Comp. Laws of 1879, pp. 338, 339.) The plaintiff claims that he was prosecuted and sentenced merely for obtaining a signature; that a signature cannot be stolen, and therefore that there is no punishment fixed for the supposed offense for which he was sentenced, and therefore that the sentence is void. He claims that that portion of § 94 of the crimes act which relates to obtaining a signature, is nugatory and worthless, and that the legislature committed a great and palpable blunder in enacting it and in attempting to create an offense without providing any punishment for such intended offense. These statutes, however, were borrowed from Missouri; they have been on our statute books for nearly twenty-five years; they have been enacted and reenacted by successive legislatures, and the able commission appointed by the justices of the supreme court in 1877, to revise the laws of the state, recommended their reenactment, substantially as they were, and almost verbatim. (Sections 161 and 88 of the chapter on public offenses of the Commissioners’ Report.) This is some evidence that no very great legislative blunder was committed. The plaintiff, however, was not prosecuted and sentenced for merely obtaining a signature. It was for obtaining a signature to a “written instrument,” a “valuable thing,” and also for obtaining this written instrument, this valuable thing. And the law prescribes a punishment for stealing such things. The information sets forth the alleged offense in great detail, and no claim is made that the information is defective in any respect. Said § 94 does not pretend to make the mere obtaining of a signature an offense; nor does any other section of the statute do so. The obtaining of a signature to a blank piece of paper, if nothing further were done, would not constitute any offense. Nor would the obtaining of a signature to a deed, or to any other written instrument, constitute an offense, if such written instrument were never delivered. In order that the obtaining of a signature shall constitute an offense, it is necessary that the signature be attached to some written instrument of value, and that the written instrument itself be obtained along with the signature. (Fenton v. The People, 4 Hill, 126.) A signature cannot be obtained unless the written instrument to which it is attached is also obtained. The legislature evidently had no thought of a signature being obtained separate from a written instrument. They had the whole matter in contemplation when they enacted the law — the signature, and the written instrument — the signature, and the writing above it to make it valuable. Their language is, “obtain the signature of any person to any written instrument;” and a signature with the writing above it, to make it valuable, may be stolen. All that a deed is, is the signature with the writing above it to make it valuable. Indeed, neither the signature nor the writing would be of any value if they were separated. And both together would be of no value, unless obtained by the party to whom they were apparently executed, or for whom they were apparently designed, or, in other words, unless they were apparently delivered to the party to whom they were apparently executed. The statute .evidently has a broader meaning than the plaintiff is willing to give to it. If we should construe it as the plaintiff desires that we should, we would make the statute speak nonsense, which we should not do, provided it will bear any reasonable construction, which we think it will. We think that the construction given t© the statute by the district court is the most natural and reasonable. We think the imprisonment of the plaintiff is legal, and he will therefore be remanded to the custody of the said sheriff of Cowley county. All the Justices concurring.	[ -16, -18, -8, -65, 42, -32, 42, -104, 51, -109, -96, 115, -55, -116, 4, 123, 114, 127, 85, 121, -52, -73, 7, -31, -14, -13, -39, -43, -77, 89, -27, -57, 76, 32, -54, 93, -58, -118, -47, 84, -114, 35, -120, -44, -46, 72, 52, 43, 80, 74, 113, -97, -29, 42, 30, -38, -87, 44, 75, -65, 73, -72, -97, 13, 79, 6, -93, 7, -100, 35, 72, 46, -104, 17, 1, -24, 115, -106, -122, -12, 79, -53, -88, 102, 99, 33, -35, -18, -68, -104, 47, 118, -107, -90, -112, 88, 107, 12, -106, -99, 125, 16, 10, -10, -25, 20, 57, 108, 9, -113, -108, -111, 15, 120, -110, -72, -53, 33, 33, 113, -49, -78, 92, 35, 120, -101, -113, -16 ]
The opinion of the court was delivered by Brewer, J.: The defendant in error brought an action in the district court of Atchison county, against the Central Branch Union Pacific railroad company, alleging in substance that he was the owner of a certain lot in the city of Atchison, occupied by the said Wm. M. Twine as a residence; and that on the south line of said lot there was an alley set apart and dedicated to the use of the public, and for the use'and benefit of adjoining lot-owners; that said alley was the only way by which the said Win. M. Twine could have ingress to and egress from the south end of said lot; that on or about the 1st day of August, 1877, the railroad company “ illegally and wrongfully obstructed the alley aforesaid by digging ditches therein, and laying down and building its railroad track therein, and that since about the 1st of August, 1877, it has kept its railway cars and coaches continually and at all times standing upon its said track in said alley, and that it has kept the said ditches and its said track so dug in such condition as to illegally, wrongfully and improperly obstruct said alley during all of said time, and that it has illegally, wrongfully and improperly deprived this plaintiff of all use and ■ benefit of said alley, and of all means of ingress to and egress from the south of said lot in any other manner than by passing through his dwelling house, since about the 1st day of August, 1877; that by reason of such acts of the railroad company, the said Twine had been damaged in the sum of five hundred dollars.” To this petition the defendant company filed a general denial. The case was tried at the June term, 1878, without a jury, before Hon. Robert Crozier, judge pro tem,, and judgment rendered against the railroad company for the sum of one hundred and twenty dollars. A motion for a new trial was duly filed by the railroad company, and being overruled, the plaintiff in error brings the case to this court, seeking to obtain a reversal of the judgment of the-court below. We see no error in this ruling. The petition alleges the ownership of the lot, that it abutted on this alley, which of course gave a" right of ingress thereto and egress therefrom, and which right, personal and of special value to the, plaintiff, the railroad company had destroyed by its manner of occupying the alley. It charges substantially that the railroad company has destroyed the use of this alley as a public highway and has appropriated the same to its own use, and that the plaintiff as the owner of. an -abutting lot is specially injured, in that ingress to and egress from his lot over this established highway are destroyed. That this wrong gives a right of action, is plainly affirmed in the case of A. & N. Rld. Co. v. Garside, 10 Kas. 552. See also Venard v. Cross 8 Kas. 248. While a railroad company may use a highway, it cannot confiscate it; at least, a mere license to occupy does not give a right to destroy it. So long as it is a highway, the public use cannot be destroyed. And whenever a railroad company occupying a highway so lowers, or fills or cuts it up as to prevent its use as a highway, the public may interfere and prevent such manner of occupation. And any individual sustaining special injury from such occupation may recover his damages therefor. A railroad company has no higher rights in a highway than an individual — it may share in its -use, but cannot monopolize it; and the owner of a lot abutting on the highway, and who has special need thereof for ingress to and egress from his lot, is specially damaged by any monopolizing of the use of the highway by a railroad company. Here, the appropriation charged is in the manner of construction, and in leaving its cars constantly standing upon the track. Either is a wrong, giving plaintiff a- cause of action. (Haynes v. Thomas, 7 Ind. 38; E., &c., Rld. Co. v. Combs, 10 Bush, 382; J. M. & I. Rld. Co. v. Esterle, 13 Bush, 667; Stetson v. C., &c., Rld. Co. 75 Ill. 74; Street Rly. v. Cumminsville, 14 Ohio St. 523.) The other and more important question worthy of notice is the measure of damages. The court found that, from the manner in which the railroad track was constructed, and left to remain, the plaintiff was damaged in the sum of $120. Upon what method of computation this result was reached, the findings do not advise. From them alone it could not be said whether this was simply the damages suffered by the owner from the continuance of the nuisance up to the day of filing the petition, or the depreciation in value of the property by reason of the track being regarded as a permanent obstruction of the highway. Neither is there given,in the testimony any sums or figures from which, as in the computation of an account, these exact damages could be reached. There being, then, no certainty from the findings whether the damages were for loss of rent, or other temporary injury, or for permanent depreciation in value, and one or the other being unquestionably correct, the contention of counsel for defendant in error is, that the presumption must be that the trial court adopted the proper method of computation, .the correct measure of damages. On the other hand, counsel for the plaintiff in error claim that the rulings on the trial show that the court treated the wrong as a permanent injury, and measured the damages by the depreciation in value of the property. In support of this, they cite the admission of testimony over objection as to the value of the premises before and after the laying of the track, the sustaining of an objection to a question as to the damage to the property from the laying of the track to the date of the commencement of the suit. In regard to this latter ruling, it can be sustained upon other grounds. Such a question, i. e., as to the amount of damage done or caused by a particular act, is generally objectionable. That is not a matter calling for the opinion of a witness. (Roberts v. Comm’rs Brown Co., 21 Kas. 247.) We may remark generally as to the testimony, that it was very full and specific as to the condition of the alley prior to and after the laying of the track, the relations of the alley to the plaintiff’s premises, the manner and frequency of its use by him, and all other circumstances from which injury, whether temporary or permanent, could be deduced. And even if the inquiry were limited to the mere temporary damages, we are not entirely clear that evidence of value was incompetent; though see Bathishill v. Reed, 37 Eng. L. & E. 317; Hopkinson v. W. P. Rld. Co., 50 Cal. 194; Pinney v. Beny, 61 Mo. 360; D. & B. Canal Co. v. Wright, 1 Zab. 469; Hatfield v. Rld. Co., 33 N. J. 251. But conceding that the court treated the obstruction as a permanent one, and measured the damages accordingly as for a permanent depreciation in the value of the property —and we are inclined to think such was the view actually taken — was the ruling erroneous? It will be noticed that the petition counted on obstruction in two ways: first, by the track itself; and second, by permitting cars to remain an unnecessary and unreasonable length of time on the track. .The finding ignores this latter cause of inquiry, and awards the-damage solely in consequence of the former. Now the latter injury is obviously and in its nature temporary. It constitutes a nuisance to-day which to-morrow may cease. At any rate, it is fluctuating, and depends on the daily action of the company. It is not a nuisance which in any sense can be regarded as permanent. For such injuries, it may well be that only such damages as have been sustained by the conduct of the company prior to the suit are recoverable. There can be no presumption that the company will continue the wrong. So if the injury charged was in the digging up the alley for the purpose of laying the track, such an obstruction as continues- only during the process of construction, and which ceases when the track is completed — that is but a temporary wrong. But here the wrong charged is, that the track, as it stands after completion, so occupies the alley as toexelude other use, and prevent ingress and egress; and the testimony abundantly shows that the company considers such manner of occupation necessary for its purposes, and has so laid the track with reference to its own necessities. " Having reference to its own uses and purposes, there was no negligence in the construction; the work was well and properly done. The wrong consists in this, that if its use of the alley continues, the plaintiff’s use must cease. Now is it not to be presumed t-hat when the company thus laid its track it intended a permanent use of the alley, a permanent dispossession of plaintiff from its use? — and may not the plaintiff, accepting that as a fact, recover in a single action the permanent injuries which his property sustains thereby? Must he assume that because the company can, it will remove its track, and so for each day’s continuance of the obstruction bring his separate action? Must he assume'that because the state can, it will compel such a modification, or if necessary, abandonment of the use by the railroad company as will permit a use by the public generally, and thus treat that as temporary which the company evidently intends as permanent, and which he as an individual cannot prevent from being permanent? It may well be that the state regards the use by the company as of more value to the public than the general use by the public itself, and so will never interfere-with such use by the company. And if the state assents, who can disturb the use? For while there are cases in which an individual can abate a public nuisance, when that nuisance does him a special and personal injury, can that be called a public nuisance which the state authorizes, or even that which it simply assents to? Suppose the state in express terms empowered a railroad company to construct its track along a highway, at such a grade as to destroy its use by the public generally as a highway: is not such authority within the power of the state? And would it be contended that under pretense of abating a public nuisance of special injury to himself, an adjacent lot-owner could remove the track or restore the grade? It is .said by Cooley, in his work on Torts, p. 615: ‘‘The state having in some form provided for and created a certain easement, may at its will abandon it, or change it to some other easement, or restrict or enlarge the use of it, and generally do' with the creature of its authority what it pleases. A common highway may thus be qualified by the laying of a railway track-upon it; a navigable stream may be bridged or dammed; awnings may be permitted above a city street, and covered areas below it; navigation companies may be given special privileges in the public streams of the state, and so on. In these cases the state only restricts or narrows its own right; and the right of the individual, which is only a part of the public right, can be no broader than that which-the state has retained.” If this be true, wheu the state expressly grants such authority, is it not also true when the state merely licenses the occupation by the railroad company, and the latter in a reasonable •and proper construction of its track so changes the grade as to practically exclude all other use of the highway, and such change of grade and manner of occupation is unchallenged by the state? Is not, so far as the individual is concerned, this implied assent equivalent to express authority? and can he, •either by his own act or through any process of the courts, abate this obstruction of the highway ? But be this as it may, may not the lot-owner, when such appropriation of a highway is in fact made by a railroad company, at least assume that the state has granted authority, and that the company has done that which it had, license to do, and treat the appropriation as permanent? And in such ease, may he not recover for the obstruction to ingress and egress as a permanent injury to and depreciation of the value of his lot? While the amount in controversy here is small, the principle is important. A net-work of railroads already covers the state, and the iron track is being pushed in every direction. It will soon touch every city and town and village, and in the nature of things must occupy many highways and streets. Frequently, conformity to the established grade of the highway may be impossible. Sometimes there may be express grant of authority to alter the grade to the extent of partially or totally obstructing other travel; more often, as in the present general law, simply license to occupy, with the duty of restoring the road to such a state as not to impair its usefulness as a highway. (Comp. Laws 1879, p. 224, §47.) Of course, the controlling and supervising power of the state always remains. But where, occupying under' the general law, a railroad company so changes the grade as to obstruct ingress and egress, must the lot-owner treat it as simply a continuing nuisance, for each day's continuance of which he has a separate action, and so multiply suits with no benefit to himself and great injury to the company, or may he not treat if as a permanent injury, recover for its effect upon the value of the lot as such an injury, and thereby yield his personal assent to the continuance of such obstruction, and estophim or any subsequent owner of the lot from challenging the company’s manner of constructing its track? When the right of way is condemned, though only an easement is taken, the full value of the land is awarded because the appropriation is understood to be permanent. The company may abandon its right of way to-morrow, yet action is taken as though it never would abandon. So when its track is laid in a highway, unless placed in such a manner as indicates only a temporary use, may it not be treated as a per-' manent appropriation, and action taken accordingly? Does-not the spirit of the present law aim to adjust rights with fewest suits and least litigation? — and will it not tend to the interests of the railroad company and the lot-owner alike, to-have all questions adjusted in a single action, instead of by repeated suits for continuing wrongs? Again, is not the obstruction of ingress and egress an appropriation of private property for which compensation is to -be made, and does it lie in the mouth of the company to say that it had no right to appropriate it and may be compelled by the state to restore it? In Haynes v. Thomas, 7 Ind. 38, it is said: “The right to use a street in a town adjoining a lot abutting on it is as-much property as the lot itself, and the legislature has as little power to take away one as the other. Whether the act of dedication transfers the fee from the donor to the public, is not a material inquiry.” In Elizabeth, &c., Rld. Co. v. Combs, 10 Bush, 382, the court says: “It is well settled, both here and elsewhere, that the owners of lots have a peculiar interest in the adjacent street, which neither the local nor general public can pretend to claim — a private right in the nature of an incorporeal hereditament, legally attached to their contiguous ground — an incidental title to certain facilities ' and franchises assured to them by contract and by law, and which are as inviolable as the property in the lots themselves.” And in Cooley on Torts, p. 616, following the quo tation made, supra, the author says: “But while the state may restrict its own right, it cannot restrict or take away the rights which are purely individual, even though they are intimately associated with the public right. An example has been given in another place of a railroad laid down in a public highway by state consent, and it was stated that this consent would not empower the railroad company to cut off an adjacent land-owner from convenient access to the street. This right of access is an individual, not a public, right, and the land-owner, in claiming damages for being deprived .of it, is complaining not of a public, but of a private nuisance.” And in the case of J. M. & I. Rld. Co. v. Esterle, 13 Bush, 667, it was decided, that where access to a lot was obstructed by the laying down of a railroad track, a single action might be maintained for the depreciation in value, and the bringing of such an action was an assent to the continuance of the obstruction; in other words, it was treated as a permanent appropriation of private property for which full compensation was to be made. See also L., &c., Rld. v. Applegate, 8 Dana, 294; LeClercq v. Gallipolis, 7 Ohio, 217; Cincinnati v. White, 6 Pet. 431; Mix v. L. B. & M. Rly. Co., 67 Ill. 319; Stone v. F. P. & N. W. Rld. Co., 68 Ill. 394. Without pursuing this argument further, we conclude that where the injury springs from the manner in which the track as completed affects access to the lot, the lot-owner may treat it as a permanent injury to the lot, a quasi condemnation of a certain interest in his property, and recover the consequent depreciation in value, and that such recovery is an assent on his part to such manner of using the highway by the company, and concludes both him and all subsequent owners of the lot. There being no other question of importance, the judgment will be affirmed. All the Justices concurring.	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