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Per Curiam:
The judgment in this case must be affirmed, under the decisions of Horton v. Watson, ante, p. 229; Riddel v. School District, 15 Kas. 168; Monger v. Commissioners of Harvey Co., 22 Kas. 318; and Johns v. Hastings, 22 Kas. 464.
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The opinion of the court was delivered by
Brewer, J.:
This is an action of mandamus, to compel the defendants, as canvassing board of the county of Harper,, to canvass and déclare the result of the election held in November last for county officers, and on the question of the-location of the county seat. The defendants, for one ground of defense, return that there were only about 800 legal voters-in said county at the date of said election, whereas the returns as made show a vote of 2,947 purporting to have been polled, and that therefore at least 2,147 of such votes were fraudulent and illegal, and that by reason thereof it is impossible to determine and declare the will of the people or the true result of such election. A motion has been made to strike out this portion of the return, and upon that motion the case is submitted to us. This motion is made in no technical spirit, but, as counsel agree, that there may be a speedy determination of the substantial questions involved. And we meet counsel in the same spirit. Our general knowledge of matters and events assures us that in au outlying and frontier county like Harper, there is no such number of legal voters, and hence that the return of the commissioners that the large majority of such apparent vote is illegal and fraudulent, is-substantially correct.
The question therefore presented is not, whether, when there have been, or is charged to have been, here and there, illegal votes received, or legal votes rejected, or fraudulent or irregular practices on the part of the officers in any one or more voting precincts, the county board has a right to inquire into-the merits of such votes, or the conduct of such officers, but whether, when there are sent in to the canvassing board returns showing such an enormous number of votes as to be perfectly obvious that they are not true returns of legal votes actually cast, but simply manufactured evidences of an attempt to defeat the popular will, this court will, by mandamus, compel the board to accept as true these fraudulent returns and canvass, and declare the result as though they even prima facie showed the actual vote. Counsel for relator rely upon the case of Lewis v. Commissioners, 16 Kas. 102, in which this court decided that the duty of a canvassing board is substantially ministerial, and that it is not to reject returns regular in form and genuine, on the ground that illegal votes were received, or other frauds practiced at the election; that such matters are to be inquired into by a tribunal for contesting elections, or in quo-warranto proceedings; while the defendants rely on the case of The State v. Marston, 6 Kas. 524, in which this court, after a canvass had been made, refused to compel, by mandamus, the commissioners to move their records and keep their office at the place declared by the canvass to be the chosen county seat, on the ground that just such an outrage as appears in this case had been committed in the election. We are clearly of ,the opinion that the principle of the latter case must control this. It was said in that case, as it has been said in others, that “the writ of mandamus lies, to a great extent, within the discretion of the court where the application is made.” Now, while canvassing is a ministerial duty, yet it would be a singular exercise of its discretion for a court whose duty it is to uphold purity, justice, and honest dealing, to give even apparent sanction to such an outrage so gross and so manifest. A canvass is a prima-faoie recognition of the -truth of the returns. Compelling a canvass is compelling a prima-faoie recognition of these returns as true statements of the votes cast. But these returns are manifestly rotten and worthless, and the truth is not in them. They do not fail of absolute truth through mere mistake or error. They are an intentional and immense lie. They are without value in any proceeding or in any court, as evidence of votes cast, for while legal and honest votes were cast, yet no court is under obligation to attem.pt to sift the grain of truth from the mass of falsehood. It is urged that individuals were candidates for office at this election, and that unless a canvass be made there is no way of determining who is elected, and the incumbents thus continue to hold offices which they are not entitled to hold, and for which the people have chosen other persons; that these candidates may be in no manner implicated in the wrong, and hence they should not be deprived of the emoluments of the'offices to which they are elected. There may be a hardship in this, but . if the returns are not true, how will they show who is elected? If a party can base his right to an office upon nothing other than that which is so manifestly untrue, he can hardly ever expect to obtain or hold it. If it be said that this wrong may only have occurred in the returns from certain precincts, and that the others should have been canvassed, we reply that no such question is here presented. The answer presents the matter as a whole, and as though the wrong was universal. Perhaps if there are returns from any precincts not deserving of this condemnation, they should be canvassed, and the result both as to officers and county seat declared therefrom. Perhaps on the basis of such unimpeached returns the various successful candidates may by direct proceeding establish their right to office. It will be time enough to consider those questions when properly before us. All we now decide is, that at no stage of the proceedings will this court lend its sanction to an outrage so gross and flagrant as that disclosed by the answer, and never by mandamus compel any other tribunal to accept and recognize as true that which is so manifestly a deliberate and prepared lie.
"We might perhaps stop here, but we feel that we should fail in our duty if we did not call the attention of our fellow-citizens to the great wrong disclosed herein, as well as to its demoralizing influences. No such outrage could have been perpetrated without the connivance, if not the open approval, of many. There was a “ county-seat fight,” it is true, and it is one of the sad things connected with such fights, that the obligation of honesty in elections seems to be so often forgotten. Men, honorable men, will tolerate that which in any matter of private dealing they would scorn. Yet a dishonest vote cast at one election is the only the parent of many dishonest votes at another. And the better the men who countenance or even tolerate the one, the larger the number of the offspring. There are men good and true in Harper county, and we appeal to them for the good name of their county, and for the influence upon free institutions and pure elections elsewhere, to see to it in the future that no dishonest Vote be polled or false return made, no matter what may be the question or how deeply they may be interested in the result.
With this appeal we close this opinion. The motion to strike out will be overruled, and judgment entered in accordance with the stipulation on file.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
After the judgment had been rendered iu the district court in the case pending between the parties hereto, which has-just been considered, and decided by this court, and after the defendant had brought the case to this court for review, and given bond to stay proceedings, plain tiffs applied, under § 555 of the code of civil procedure, for leave to enforce the judgment. Leave was given, and from the order granting leave this proceeding- in error has been brought.
■ Two questions arise: Was the action one “arising on contract for the payment of money only” within the scope of said §555? — and if so, did the court abuse its discretion in granting such leave ?
The action was one brought by the sureties on a promissory note against the principal thereon, to recover moneys which they had been compelled to pay to the holder. The only contract evidenced by the note was one to pay money. No other obligation was assumed by any party thereto. The objections raised are, that the obligation of the principal to-the surety, the contract between them, is an implied and conditional one. On the face of the paper there is no express promise of the principal to pay the surety anything, and the implied promise is not to pay absolutely, but only upon condition that the surety first pays. But we do not think these matters take the case out of the statute. The statute does not name a written, an express, or an unconditional contract. It simply says that it must be a contract, and one for the payment of money only. This action was on a contract, and the only thing contracted for was the payment of money. If the legislature had intended any further restriction, it would have used language as in § 123 of the code, where it names “other instrument for the unconditional payment of money only.” Using such additionally restrictive words in the one section and omitting them in this, plainly shows that the legislature meant to include any contract, providing the only thing contracted for was the payment of money. In all such cases a discretion was given to the court or judge to permit the enforcement of the judgment, the proceedings in error notwithstanding. (Grant v. Dabney, 19 Kas. 390.)
Did the court abuse its discretion? We think not. It may be conceded that such orders are not to be favored. Where a defendant in good faith takes a case up on error,. and gives adequate security, the proceedings in the district court should stop until this court has had an opportunity to examine the case. ‘ Especially is that true so long as this-court is able, as it is at present, to keep steadily up with its business. Little delay will be caused if litigants are prompt and ready when their cases are set for hearing in this court. Still, wherever it is apparent to the district court, and it may appear from many things in the trial of a cause which do not go upon the record, that the defendant is seeking simply delay, or annoyance of the plaintiff, or without substantial defense on the merits has been raising constant objections in the mere hope of catching a hook on some erroneous ruling, it may properly permit the enforcement of the judgment. If a defendant owing a just debt is seeking the law’s delays or technicalities, let him pay the debt and afterward carry on his litigation. In such a case it is as fair for him to look to the security, which the plaintiff must furnish for repayment, as for the plaintiff to be postponed in the use of his-money, and look to the security that the defendant has given.
Now in the case before us, while it seems to us that it would have been wiser and better to have overruled the application, we cannot say that it is apparent that the court abused its discretion, and hence we cannot reverse its ruling.
The order will be affirmed,
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action by the plaintiff in error to recover fees alleged to be due him from Howard county, as county attorney, for collecting certain moneys, in the year 1874. The case was tried by the court, a jury being waived, and resulted in a judgment against the plaintiff. The findings of fact by the court were as follows:
1st.-E. D. Custer, as treasurer of Howard county, collected a large amount of money as taxes belonging to the several funds of which he was by law the custodian, and absconded with the moneys belonging to the state and county, and several school districts and townships of the county.
2d.-The plaintiff, as county attorney of Howard county, commenced an action in the district court of that county, in the name of the county, against Custer and the sureties on his official bond, to recover the sum of $30,000 alleged to be due the county by reason of said defalcation; and some land, a herd of cattle, and other property were attached.
3d. — After the commencement of the action, Custer deposited in bank, to abide the event of the action, the sum of $1,690, which was afterward paid over to the county, to be credited on Custer’s account with the state for money collected on sales of school lands, leaving a balance on said account in favor of the state.
4th. — Pending proceedings in said action, a settlement was effected between the county board and Custer, which the plaintiff as county attorney assisted in making. Under the settlement, Custer paid the county $2,500 in money, and turned over uncanceled county warrants issued by the county of Howard amounting to $7,213.97.
5th.-Custer conveyed a tract of land to the county valued at $1,000, and agreed to pay the further sum of one thousand dollars — $500 secured by assignment of anote and mortgage on lands, and $500 secured by mortgage on town property. Of the last-mentioned $1,000, five hundred dollars had been paid the county at the trial of this action. - Custer also transferred to the county the cattle attached, and a pony valued at $40; and he agreed to make up the deficit if the cattle failed to net the county $3,000.
6th.-J. W. Custer, one of the sureties, agreed within ten days to execute a note to the county for $1,680.18, due January 10, 1875, secured by a mortgage on land — the mortgage also to secure the deficit in the sale of the cattle.
7th. — In consideration of the premises, the county board agreed to pay off and discharge all of Custer’s indebtedness as treasurer, which was ascertained at the settlement to be as follows: To state treasurer, for funds arising from sale of school lands, $240.13; to state treasurer, for state taxes collected for the year 1873, $621.37; to county treasurer of Howard county, for state school funds undistributed, $2,594.24; to county treasurer of Howard county, for county school funds undistributed, $236.02; to county treasurer, for poor-taxes collected for 1873, $238.08; to county treasurer, for township taxes collected for the several townships of Howard county for 1873, $1,314.84; to county treasurer, for school-district taxes collected for the several districts of Howard county, $10,824.72.
8th.-The evidence in this case shows that J. W. Custer paid the amount of his note, $1,680.18, to the county; but at what time, whether before or after the plaintiff’s claim was presented, is not shown, unless it is presumed to have been paid at maturity. Neither, does it appear whether the payment was made voluntarily, or enforced by action; nor to whom it was made, whether to the county board, or county treasurer, or the plaintiff as county attorney, or his successor in office.
9th. — The cattle sold for the net sum of $1,405, and the proceeds were paid to the county, but it does not appear at what time.
Upon these findings of fact, the court decided that the plaintiff was not entitled to any commission, and ordered the action dismissed at his costs. In this there was error. The statute in force at the time of the transactions referred to in the several findings provided, “county attorneys shall be allowed ten per cent, on all moneys collected by them in favor of the state or county.” 'The sum of $6,370 was actually recovered in money, and also certain land, cattle, and other property secured, out of which other moneys were realized; and such money and property were mainly obtained by reason-of- the legal proceedings, including the attachment, instituted by the plaintiff for Howard county against the defaulting treasurer of said county and his sureties. It is true that the money and property were obtained in a settlement and compromise between the county board of Howard county and the treasurer, pending the legal proceedings; but the county attorney assisted in making the settlement, and such settlement and compromise were attributable solely to the pending litigation. In such a case, the plaintiff may be said to have substantially collected all the money received by the action he commenced, though it did not actually pass through his hands, and although it was received on a compromise, after the commencement of the legal proceedings, and not under a judgment. We do not think the plaintiff entitled to any commission on the uncanceled county warrants, nor upon the cattle, pony, and other property taken in the compromise. These are not moneys within the statute; and even if equivalent to money, it does not appear from the findings that money was obtained for them prior to the filing of the plaintiff’s claim before the county commissioners of Howard county. In the absence of more specific findings, we may well conclude that the uncaneeled warrants had been redeemed by the treasurer, for which he was entitled to a credit on final settlement, and if so, they were a valid set-off to the claim of the county, upon being surrendered and canceled. The suggestion that plaintiff was not entitled to commissions because no judgment could have been rendered in the action brought for the state, township and school-district funds collected, is not of great force, for if we admit that separate actions were necessary to recover the several funds, yet, as the county assumed to sue for and collect all delinquencies, and as the moneys were paid in settlement and compromise of said action, the collections were virtually made in favor of the county.
The judgment of the district court will be reversed, and the case remanded with directions to render judgment for the plaintiff on the findings for ten per cent, on the moneys col- ' lected, to wit, on the said sum of $6,370, and being the sum of $637.
Brewer, J., concurring.
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The opinion of -the court was delivered by
Horton, C, J.:
This was an action by the plaintiff in error against Milton Lindley, one of the defendants in error, to have Lindley declared the trustee of the legal title to cer tain land in Lyon county for the benefit of plaintiff, and to compel him to convey the legal title. Lindley answered by a general denial, and second, by stating in substance that he had bought the land for a valuable consideration from E. Parker, and had received from him a warranty deed therefor; and that the plaintiff had procured his alleged title and per-tended claim without consideration, and by false and fraudulent representations concerning the usefulness and novelty of a certain kind of bee-hive. The plaintiff demurred to-this defense, and the demurrer was sustained. Thereupon, Elisha Parker, the other defendant in error, obtained leave from.the court to be made a party defendant, and set forth in his answer substantially the same defense pleaded by Lindley. This answer was demurred to by plaintiff, and overruled by the court. The plaintiff then filed a reply, containing a general denial of the allegations of this answer. Trial was had before the court, a jury being waived. The court made the following findings of fact:
“1st. That in the month of December, 1866, the defendant, Elisha Parker, was the owner in fee simple of the following-described real estate, situated in Lyon county, Kansas, to wit: The north half of the northeast quarter of section 2, township 19, range 10, east.
“2d. That sometime in the year 1866, the defendant, Elisha Parker, entered into a written agreement with one Elsbery L. Gennett, whereby he agreed to convey to said Gennett the land above described. In consideration of said agreement, the said Gennett sold to said Parker a patent right to manufacture and sell a certain patent bee-hive within certain territory, which was the only consideration for the land.
“3d. That at the time of the agreement to sell the land, and for the purpose of inducing the said Parker to sell the same, Gennett represented to Parker that the bee-hive was useful, novel, and of great value, when in fact said patent was utterly worthless, and of no value whatever. .
“4th. That sometime prior to the month of April, 1867, Gennett sold to plaintiff Babb the land he had previously purchased of Parker, for a valuable consideration, to wit, $420, and assigned to him the written agreement.
“5th. That on the 3d day of April, 1867, Elisha Parker and his wife* for the purpose of carrying out the terms of the agreement, and without any additional or further consideration, made, executed and delivered to said Jonathan Babb their deed of general warranty, by which they intended to convey the land above described, but by a mutual mistake the land was described in the deed as being situated in section 21, instead of section 2, as was intended, which said .deed was duly recorded in the records of the register of deeds for Lyon county, Kansas, on the 22d day of June, 1867, in book H, on page 587.
“6th. That the said land so intended to be conveyed was, and is, wild, uncultivated and unoccupied land, the said plaintiff having continuously paid the taxes on the same ever since the year 1867.
“7th. That the defendant, Elisha Parker, discovered the fraud in the bee-hive sometime between the years 1867, and 1871, and the discovery of the mistake in the deed was sometime in the year 1873 or 1874.
“8th. That on the 12th day of April, 1878, the defendant, Elisha Parker, and wife, made, executed and delivered to the defendant, Milton Lindley, their deed of general warranty to the land which they had intended to deed to the plaintiff; that said deed to Lindley was without consideration, and received by Lindley with full knowledge of the plaintiff’s rights in the premises, and that the said deed was duly recorded on the 16th day of April, 1878, in book C, page 29.”
Upon the findings of fact, judgment was entered in favor of the defendants for costs. The plaintiff alleges several grounds of error, but they are really comprehended in these two, viz;.: first, that the court erred in permitting Parker to be made a defendant; second,'that the defense pleaded and the facts found by the court constituted in law no defense. The first alleged error is.without merit. The rule is, that where a specific execution of a contract to sell land is sought to be enforced, if the vendor has conveyed the property to a third person, after having entered into a contract for the sale thereof, the person to whom the land has been conveyed, as well as the vendor, should be made defendants; and so if the vendor has made a new contract to sell. (Daily v. Litchfield, 10 Mich. 29; Stone v. Buckner, 12 Smed. & M. 73; Fullerton v. McCurdy, 4 Lans. 132; Morris v. Hoyt, 11 Mich. 9; Bliss on Pleading, 108, 109.)
We think that in this case both Lindley and Parker were proper parties, Lindley as the party having the legal title, and Parker as being accused of having wrongfully conveyed the land to him by a warranty deed. The trial court probably committed error in sustaining the demurrer to Lindley’s second defense, but as Parker afterward set up the like defense, under the circumstances we may assume his answer inured to Lindley’s benefit.
The second alleged error is likewise untenable. The plaintiff purchased with notice of all counter equities which were outstanding in favor of Parker, then holding the legal title. (Stout v. Hyatt, 13 Kas. 232.) The trial court finds that there was no consideration for the contract between Gennett and Parker, as the so-called patent transferred to Parker by Gennett was utterly worthless, and of no value whatever. As there was no consideration, there was no contract. (Bank v. Peck, 8 Kas. 660.) Gennett therefore acquired no right or title in the land by his fraud in inducing the contract of 1866, and as the plaintiff was not a bona fide purchaser, as he was bound to take notice of the equities of Parker, he acquired no right or title in the land. He knew that Gennett’s purchase was tainted —was void, and that he bought nothing. Under these circumstances, Parker was as much the owner of the land prior to April 12th, 1878, as he was in 1866, before his contract with Gennett. On April 12th, 1878, he had full authority to sell or give the land to Lindley. His deed then transferred a good title. When the plaintiff sought to have Lindley convey to him. the legal title, the defendants had the right to set up the fraud upon which the plaintiff’s claim was based. It was the first opportunity, after the discovery of the fraud of Gennett, that either had the chance in any court to expose its rottenness. The plaintiff was standing in the shoes of Gennett, entitled to his equities, all his •rights, and all his defenses — nothing more. As Gennett had failed to do equity, neither he nor hiis assignee had any right to the relief demanded in the petition.
The judgment of the district court will therefore be affirmed.
All the Justices concurring.
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Per Curiam:
Every question involved in this case has been settled in this court, by decisions in, other cases.
1. As to litigating adverse claims in foreclosure cases, see Bradley v. Parkhurst, 20 Kas. 462.
2. As to agreements by a grantee to pay previously existing mortgages on the property, see Schmucker v. Sibert, 18 Kas. 105.
3. As to a grantee’s remedies and his measure of damages in cases of breach of covenants, see Dale v. Shively, 8 Kas. 276; McKee v. Bain, 11 Kas. 569, 578.
The defendant in error also refers to the case of Parkinson v. Sherman, 74 N. Y. 88, as being a case directly in point for this case; but that volume of the New York reports has not yet been received by the state library, and therefore we have been unable to examine it.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action of ejectment, brought by Sarah Fleming and others against John W. Bale, to recover certain real estate. Both parties claim under Eli Fleming, deceased. The plaintiffs claim as the heirs at law of said Eli Fleming; and the defendant claims under an administrator’s deed, executed to him by James W. Ellis,, administrator of the estate of said Eli Fleming. The judgment of the court below was in favor of the defendant, and the plaintiffs now bring the case to this court. '
It is admitted that the plaintiffs are the heirs at law, and that Ellis is the administrator of said Eli Fleming, and that said administrator’s deed was regularly executed by the administrator to the defendant; but it is claimed by the plaintiffs that there were such great irregularities in the proceedings of the probate court, and in the appraisement and sale of the property, that no title to the property ever passed to-the defendant.
It will be observed that the plaintiffs’ attack upon the proceedings of the probate court is collateral only, and therefore that no irregularities in such proceedings can avail the plain tiffs anything unless such irregularities go to defeat the jurisdiction of the court. It will also' be observed (by an inspection of the constitution and statutes of Kansas) that the probate courts of this state are courts of record, having exclusive original jurisdiction of all such matters as were attempted to be brought within the jurisdiction of the probate court in the present case, and therefore that a want of jurisdiction will not be presumed, but must be made to affirmatively appear. With these preliminary remarks, we ■shall now proceed to consider the objections urged by the plaintiffs against the proceedings of the probate court, and against the appraisement and sale of said property.
On the 18th day of January, 1877, the administrator filed in the office of the probate court of Allen county a petition asking for authority to sell said real estate, or so much thereof as might be necessary (after exhausting the personal property) to pay the debts of the estate, and setting forth •sufficient reasons therefor. The probate court then (after entering certain recitals) made the following order:
“Whereupon it is ordered, that said administrator cause notice of the pendency of this proceeding and of the time of hearing the same, by publishing a notice in the Humboldt Union two consecutive weeks; and it is further ordered, that the said petition be set for hearing on the 29th day of January, at 1 o’clock p. m.”
The Humboldt Union was a weekly newspaper, published in said Allen county; and the administrator published a notice therein on January 20th and 27th, 1877, stating among other things that the petition would “ come on for final hearing on the 29th day of January, A. D. 1877, at the hour of ten o’clock A. M., at the probate court room in the county aforesaid.” The probate court heard said petition on January 29, 1877, and ordered that said property, or so much thereof as might be necessary, be sold “at public or private sale, for cash in hand, or on deferred payments not to exceed two years, with interest,” etc. The probate court at the same time appointed the appraisers, who were disinterested householders, and competent in every other respect to act. After qualifying, they appraised the property now in controversy, (viz., the northeast quarter of section 19, in township 25, range 18, in said Allen county,) at $1,066.66. They appraised the east half and west half separately, however — the east half at $266.66, and the west half at $800. The administrator then sold the property at private sale to the defendant in this action, for $950. Whether the sale was for cash in hand, or not, is not very definitely shown, nor is it material, but we would infer from the language used that it was for cash in hand. At least it would seem that the money was paid before the deed was made. The administrator made a return of his proceedings to the probate court, and the court, after carefully examining the same, confirmed the sale, and ordered the administrator to make a deed for the property to the purchaser. Afterward the administrator made said deed, and delivered it to.the purchaser, who took possession of the property under it. And afterward the plaintiffs commenced this action to eject the purchaser from the premises.
We shall now consider the points made by the plaintiffs, the said heirs of Eli Fleming.
I. They claim that the said service of the notice of the hearing of the petition to sell said real estate to pay the debts of the estate was void, because it was made by publication only, while the law and the circumstances of this case required, as they claim, that the service should have been made personally upon them. All the proceedings were had in Allen county, and all the plaintiffs resided therein, and for this reason the plaintiffs claim that the service should have been personal, and not by publication. But does the law require it? Up to 1868, the laws of Kansas authorized only two ways of making such service — either by publication in a newspaper for six weeks, or by posting ten handbills in ten public places for twenty days. (Comp. Laws 1862, p. 531, § 131.) In 1868 the law was changed so as to read as follows:
“Sec. 118. The court shall require notice of the petition, and of the time and place of hearing the same, to be given for such length of time and in such manner as the court may see proper.” (Gen. Stat., p.455; Comp. Laws 1879, p. 424.)
Under this statute, the service of the notice may be made “in such manner as the court may see proper.” It may be made in more than two ways: it may be made by publication or by posting handbills, or by serving the notice personally, or by any other proper way. If the person interested resided in New York, it might possibly be made upon him by letter. But of course the court should in all cases exercise its best judgment, and for any abuse of discretion error would lie. The service should be such that the parties interested would in all probability get the notice. And we must sup-' pose that probate courts will do their duty. We cannot suppose that probate courts will conspire with administrators to rob or defraud widows or orphans, unless they are restrained from exercising some of the powers which the legislature has seen fit in its wisdom to confer upon them. We think that the service of the notice in cases like this, may be made by publication, at the discretion of the probate court. In our opinion, however, personal service (where it could be made upon adult parties) would be much better. It is not claimed, however, that the plaintiffs .in this case did not have ample notice in fact of the hearing of said petition, although they claim that they had none in law.
II. It is claimed that no affidavit for publication, such as is required by §73 of the civil code, was filed with the probate court. The only answer to this is, that the law does not require it.
III. It is claimed that the order of the probate court did not state, nor require the notice to state, where the petition was to be heard. This was an irregularity; but of course the petition was to be heard at the probate court room, and the notice itself so stated.
IV. It is claimed that said order did not state the year when said petition would be heard. This order was made on January 18, 1877. The year had already been men- tinned, and the court then “ordered that the said petition be set for hearing on the 29th day of January, at 1 o’clock p. m.,” and the notice stated that the petition would be heard on January 29, 1877. We think this is sufficient.
V. It is claimed that the order stated that the hearing would be at 1 o’clock p. M. of January 29th, while the notice stated that it would be at 10 o’clock A. m. of that day. We do not think that this variance is fatal. It must be remembered that this is a collateral attack upon the proceedings, and not a direct attack.
VI. It is, claimed that the order which was made on January 18, 1877, required that the notice should be published “in the Humboldt Union two consecutive weeks,” which publication was an impossibility, as the hearing was to be had, and was had, on January 29, 1877, giving only eleven days instead of two weeks, for such publication. Now the whole of said order must be considered together, and so considering it, it shows that the probate court simply meant that the notice should be published in the Humboldt Union two consecutive times — that is, that the notice should be inserted in the next two issues of the Humboldt Union, which should be published after the order was made and before the hearing was to be-had, and on January 20th and 27th, 1877, and this was-done. The notice was to be published “ two consecutive weeks,” not for two consecutive weeks, and by the phrase “two consecutive weeks,” the probate court evidently meant “two consecutive times.” That the order must be so construed, see State v. Yellow Jacket Co., 5 Nev. 416; Swett v. Sprague, 55 Me. 190; Banta v. Wood, 32 Iowa, 470, 474. This case differs from that of Reed v. Sexton, 20 Kas. 195. In that case the language of the act commented on showed that four full weeks must elapse after the commencement of the publication in the newspaper, or after the posting of the notices, before the order of the commissioners could go into effect. (Laws of 1872, p. 384, § 2.) In this case, the order of the probate court shows that the hearing of the petition was to be had in eleven days after the order was made, and therefore that the probate court meant by the language used, simply two insertions in the newspaper, and that two full weeks should elapse. Neither is this case like that of Mickel v. Hicks, 19 Kas. 578. In that ease the notice was not published six weeks, as required, nor even five weeks; nor were there six insertions of the notice in any weekly newspaper, as required. Hence, that case is no precedent for this. We do not think that any of the foregoing irregularities or defects can vitiate the proceedings of the probate court when attacked collaterally, asín this case.
VII. It is claimed that the order of the probate court to-sell the property is void, because the order was in the alternative— to sell “at public or private sale,” and “for cash in hand or on deferred payments.” We think the probate court erred in not directing how the property should be sold; but it was mere error. It does not render the proceedings void.
VIII. It is claimed that all the proceedings are void because the probate court appointed t'he appraisers. We would think that the administrator should have appointed them, but the administrator adopted their appointment and used them, and they were competent in every respect; and therefore we think that the error was an immaterial one.
IX. It is claimed that the sale is void, not as we understand because the property was appraised in separate tracts- and then sold in gross, but because one or the other of the tracts so appraised and sold- may have been sold for less than three-fourths of its appraised value. There is nothing in the record that tends to show that any portion of the tract was-sold for less than three-fourths of its appraised value, while-there is something in the record that tends to show otherwise. The administrator returns that the property was sold for “not less than three-fourths of the appraised value;” and the-figures returned by him show that the entire tract was sold for $150 more than three-fourths of its appraised value. Besides, the sale was confirmed by the probate court and a deed was executed by the administrator, and the statute says-that such a deed “shall be received in all courts as presump tive evidence that the executor or administrator in all respects observed the directioüs and complied with the requisitions of the law.” (Executors’ and Administrators’ Act, § 133, Comp. Laws 1879, p. 426.)
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered, by
Burch, C. J.:
The appeal is from an order vacating a judgment of partition of land, pursuant to motion alleging the judgment was the product of irregularity.
The land consists of city lots in Pittsburg, on which stands a business building. The lots were owned originally by Josephine Schneider. She died, leaving a will which gave all her property, real and personal, except wearing apparel, to her six children and heirs at law, Adam A. Schneider, Frank A. Schneider, Emil A. Schneider, Ernest L. Schneider, Lydia (Schneider) Webb, and Celine (Schneider) Arnott. The will contained the following provision relating to the lots in controversy:
“Sixth. It is my wish that my building in Pittsburg, Kansas, should be taken care of by my son, Ernest L. Schneider and my daughter, Celine Arnott, nee Schneider. The income from my building to be divided equally among my heirs, no bonds to be required from either one for handling the estate, no charges to be made to the heirs, but all expenses accruing through this care, and all time lost by the said parties to be paid by the heirs.”
It may be noted here this provision of the will did not create a trust for any purpose.
Josephine Schneider died on March 3, 1925. On March 6, 1925, the heirs and devisees entered into a written agreement, which reads:
“This agreement made and entered into this 6th day of March, 1925, by and between A. A. Schneider, F. A. Schneider, E. A. Schneider, E. L. Schneider, Lydia Webb and Celine Arnott, being of legal age and all heirs of Josephine Schneider, deceased.
“The said heirs do hereby constitute and appoint E. L. Schneider, of Wichita, Kansas, and 'Celine Arnott, of Sherman, Texas, son and daughter of said Josephine Schneider, deceased, trustees of said estate with authority to collect all moneys due the estate.
“It is further agreed that said trustees shall have the authority to incur and pay all expenses on said estate.
“It is further agreed that the said heirs of the said Josephine Schneider, deceased, agree that a sufficient sum will be set aside to take care of all expenses incurred on the said estate from time to time.
“It is further agreed that any expense incurred by the said trustees of the estate be borne by said estate.
“It is further agreed that distribution of all net income from said estate be divided equally by and between the said heirs of Josephine Schneider, deceased, quarterly, beginning July 1, 1925.
“It is further agreed that the heirs of the said Josephine Schneider, deceased, agree not to sell or assign their interest in and to the said estate of Josephine Schneider, deceased, unless full consent is given by all the heirs.
“It is hereby further agreed that in the event of the death of any one of the above-mentioned heirs, this agreement shall be binding on the part of the heirs of the deceased heir, of the estate of Josephine Schneider, deceased.”
It may be noted here this instrument, embodying an ordinary family settlement, normally dispensing with probate of the will, did not create a trust for any purpose.
The joint agents took possession of the estate, managed it and collected income until the death.of Celine Arnott on April 16, 1932. After that, Ernest L. Schneider remained in sole control, and in sole control of the lots and building in controversy.
On June 10, 1930, Ernest L. Schneider deeded to his wife, Daisy F. Schneider, his one sixth interest in the lots.
On January 13, 1934, Grace L. Schneider commenced a lawsuit against Ernest and his wife, Daisy. Plaintiff said she was, at the time of filing the petition, and since the 8th day of August, 1925, had been the owner of an undivided one-sixth interest in the property ; that since the death of the testatrix, Ernest had been the owner of a one-sixth interest in the property; that since August 8, 1925, Ernest had assumed management and control of the property in controversy; that Ernest had collected rents for which he had not accounted, and had failed to collect rents; that he had committed waste and had allowed the property to deteriorate and become unproductive. The prayer was for an accounting and for judgment for plaintiff, against Ernest. The petition also alleged the deed of Ernest to his wife, Daisy, was without consideration and was made to defraud plaintiff. So, a further prayer was that the deed to Daisy be set aside as fraudulent, and that the amount of the plaintiff’s claim and judgment be made a lien on Ernest’s one-sixth interest in the lots. A further prayer was that a receiver for the property be appointed, and a receiver was appointed.
It may be noted here that plaintiff was not an heir or devisee of Josephine Schneider. The petition did not disclose the source of plaintiff’s title. It later appeared she is the wife of Frank A. Schneider. It seems she acquired her interest five months after her husband had signed the family agreement, in which it was stipulated no heir should sell without first obtaining consent of all the others. In an .amended petition, to be referred to later, plaintiff, in effect, denied the family agreement was binding on her, by alleging she was never a party to it and had never agreed or consented to it. Ernest did not deed to his wife until 1930.
Ernest Schneider and his wife moved the court to require plaintiff to make her petition definite and certain, and the motion was allowed in part.
On motion, all coowners with plaintiff and Ernest were made parties defendant. Plaintiff’s husband, Frank A. Schneider, was also made a'party, and defaulted. All other new defendants answered, and prayed for determination of interest, and for partition.
On May 29, 1934, plaintiff filed an amended petition. She alleged she was owner of a one-sixth interest in the property, alleged Ernest was owner of a one-sixth interest, and named all other persons having interests, specifying the interest of each one. The amended petition contained the following allegation:
“Plaintiff further says that she desires to hold her land in severalty, and that sa-id property is subject to partition in this action.”
Plaintiff then renewed all her charges against Ernest, prayed judgment against him, and against Daisy, substantially as before, and prayed the receivership be continued. The amended petition also prayed for partition.
A motion for judgment on the pleadings for partition was made and was allowed on September 14, 1934. All parties, plaintiff and defendant, except Frank A. Schneider, were represented by counsel, and the court found that all parties, except Frank, by their respective counsel, stipulated and agreed in open court that the real property should be partitioned. The court then found the interests of the respective owners, except the one-sixth interest belonging either to Ernest or to Daisy, and with respect to that interest, found the property should be partitioned as if the title were in Daisy. The court then adjudicated the interests of the owners in accordance with the findings, adjudged the property could not be partitioned in kind without manifest injury, and appointed commissioners to appraise the property, pursuant to the statute, and to report to the court. Jurisdiction to determine issues other than the issue of partition was reserved, and with respect to those issues, the cause was continued.
The commissioners were ordered to report on or before October 15, 1934, and duly filed their report. On October 17,1934, plaintiff filed a motion, asking that the report of the commissioners be set aside, and that new commissioners be appointed to make a new appraisement. On October 19, Daisy F. Schneider moved to confirm the report of the commissioners. The two motions were heard on November 17. The court heard evidence, denied plaintiff’s motion, approved the report of the • commissioners, and ordered that the parties to the action should have twenty days from November 17, 1934, in which to make election to take the property at its appraised value.
On November 21, 1934, plaintiff filed a motion, asking for reconsideration of the rulings on the motions to set aside and to confirm the report of the commissioners. On November 28, 1934, all defendants, except Frank A. Schneider, elected to take the property at its appraised value. On December 6, 1934, the court extended the time within which election might be made to take the property at the appraised value, to January 7, 1935. On January 4, 1935, plaintiff’s motion to reconsider was heard. Evidence was introduced and the matter was taken under advisement. On January 7, 1935, plaintiff filed her election to take the property at the appraised value, and on February 15, 1935, her motion to reconsider was denied.
On March 22,1935, and after expiration of the term at which the partition judgment was rendered, plaintiff filed a motion to vacate the judgment, pursuant to R. S. 60-3007, which reads:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made:
“Third. For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.”
The procedure to vacate, in such cases, is by motion.
The irregularity complained of was that plaintiff did not know her amended petition, filed in May, 1934, prayed for partition; that the amended petition did not speak the truth, in that plaintiff’s counsel inserted in the pleading a prayer for partition by inadvertence and through mistake, without plaintiff’s knowledge or consent; that plaintiff was unacquainted with the journal entry of the judgment of partition, agreed to by counsel and filed in October, 1934; and the plaintiff did not, in fact, ask for nor consent to any judgment for partition.
The motion’to vacate contained statements not pertinent to the subject of irregularity in obtaining the judgment, and was supported by plaintiff’s affidavit, the material portions of which read:
“The deponent further states that the plaintiff’s amended petition filed in the above-entitled cause does not speak the truth with reference to partition of the above-described property in that she at no time desired partition of said property, and partition was prayed for without her knowledge and consent; and that she was not acquainted with the contents of the journal entry agreed to by counsel and filed October 17, 1934, and did not in fact sanction said prayer for partition or journal entry filed on rendition of said partition judgment.
“Deponent further states that her counsel, on her behalf, did file an election on January 7, 1935, to take the above-described real property at its appraised value, and that she filed her election to take said real property with protest for the purpose of preserving her right, title and interest in said real property and without prejudice to her right to appeal from any and all orders and rulings made by the court in the above-entitled cause, and to do other matters to preserve her interest in said property.”
The motion to vacate, which was not verified, was heard on April 1, 1935. Plaintiff’s counsel made a statement, and made an offer to show the condition of the property, and to show the present sale value and rental value were very much less than they were a few years before, due to the fact that the building had been grossly neglected and allowed to get into a state of disrepair and to depreciate and deteriorate generally. The evidence was not received, and the motion was taken under advisement. On July 6, 1935, the district court sustained the motion to vacate, set aside the judgment in partition and all subsequent proceedings, and granted plaintiff twenty days within which to file an amended petition. A second amended petition was filed on July 25, 1935, and on August 14, 1935, the defendants, except Frank A. Schneider, appealed.
Plaintiff contends the order vacating the judgment of partition was not an appealable order.
Opposing elections to take at the appraised value having been filed, the next step in execution of the judgment of partition was, to issue an order for the sheriff to sell the property as on execution. (R. S. 60-2111.) The order vacating the judgment was not an order merely opening the judgment temporarily to allow plaintiff to defend against partition. The order was absolute. It canceled everything that had been done, permitted plaintiff to begin the case all over again, and necessitated a trial de novo on new pleadings. The order being one affecting substantial rights of defendants, made in a special proceeding (R. S. 60-103, 60-104, 60-105) after judgment, was an appealable order under R. S. 60-3303.
The last paragraph of plaintiff’s affidavit, filed in support of the motion to vacate, refers to her election to take the property at the appraised value, as made under protest. The election was in writing, and the writing is in the record. It contains no protest. The record is barren of any protest by plaintiff to anybody, and the paragraph of the affidavit merely described an unmanifested mental state, and is of no importance.
In a noteworthy partition case, the partition of Poland among Austria, Prussia and Russia, Maria Theresa, Queen of Austria, was reluctant to accept her share. In telling of the affair, Frederick the Great said, “Catherine and I were old brigands. The young queen of Austria wept. She wept and she took.” In this instance, plaintiff knowingly and unequivocally elected to take, and thereby ratified the judgment of partition.
Neither plaintiff nor her counsel denied that she had knowledge of the appraisement. She then knew, or should have known, proceedings to make effective a judgment for partition, rendered without her consent, were in progress. What did she do? She filed a motion to set aside the appraisement, and that was not all. She moved that new commissioners be appointed to make a new ap praisement, and thus sought to enforce the judgment of partition. She was given a hearing on her motion. After a hearing, the motion was denied, the appraisement was approved, and she, in common with the other parties to the action, was given time within which to elect to take at the appraised value. Then what did she do? Still making no complaint about the judgment, she filed a motion for reconsideration of the ruling on her motion to set aside the appraisement and appoint new commissioners. She was given a hearing on that motion. Meantime, all parties, except herself, had elected to take. Time within which she might elect was extended. She then, in effect, abandoned her motion to reconsider, and filed her election to take.
When plaintiff discovered measures to effectuate the irregular judgment of partition were in operation, two courses were open to her: One was to accept the judgment as regular and act under it. The other course was, to deny regularity of the judgment and have it set aside. Either course was incompatible with the other. Twice plaintiff brought on hearings on motions, justifiable only on the theory the judgment was regular. Then she submitted to the judgment and sought to take advantage of it.
The homely method of expressing the rule in such cases is to say, a person may not blow hot and blow cold on the same subject. In legal phrase, a party must elect between inconsistent courses, and in doing so, it is the first decisive step that counts. The decisions of this court on the subject are numerous and uniform.
The result of the foregoing is, the order vacating the judgment of partition and subsequent proceedings was erroneous.
The code of civil procedure contains the following provision:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.” (R. S. 60-2114.)
This section furnishes means for framing and enforcing a just judgment, but does not enlarge power to vacate judgments which have become final. If, however, on return of the cause to the district court, the court should be of the opinion that, because of changed conditions, the appraisement which has been made now seems to be too low, the court is authorized to order a new appraisement, to appoint new commissioners to make the appraisement, and to effectuate the judgment of partition on the basis of the new ap praisement. Otherwise, the court should order the property sold on the basis of the former appraisement.
The judgment of the district court is reversed, and the cause is remanded with direction to set aside the order vacating the judgment of partition, and to proceed further in accordance with this opinion.
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The opinion of the court was delivered by
Burch, C. J.:
Because of the method adopted in framing the original opinion, it seems the rock-bottom basis of the decision has not been clearly apprehended.
After stating the facts the court said we must look to the statute to ascertain what kind of insurance policy a motor carrier must furnish. The court then identified the controlling statute and copied it.
In its interpretation of the statute the court considered the provisions of the statute in the order in which they occur, and discussed the name of the policy first. What should have been done was to make it clear in the beginning, as was done later, that the legislature, in effect, wrote the policy in the statute.
The concern of the legislature was not protection to the negligent motor carrier, but to a member of the public who is injured, and compensation to him must be assured, just as if the policy ran to the state of Kansas for the benefit of persons run down on the highway by a motor carrier.
Whatever such a policy may be called, and whether or not old and previously interpreted forms of policy may be used or adapted, the statutory kind of policy must be furnished or the motor carrier must keep off the highway.
Having made this clear, the opinion might have discussed the proper label to be attached to that kind of policy. As demonstrated in the opinion, in this state the name “liability policy” is appropriate.
Whether the legislature was wise or unwise in prescribing the kind of policy which it did prescribe is of no concern to the court, and no repetition of approval by the public service commission of any other kind of policy can change the law.
The petition for rehearing is denied.
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff appeals from a judgment refusing cancellation of an oil and gas lease insofar as it affected his lands.
The cause was tried below on facts admitted by the pleadings, supplemented by an agreed statement of facts. From the admissions and statements the following appears:
Mr. H. Greenwood, father of the plaintiff, owned all of a certain section of land in Stevens county, Kansas. Under date of June 1, 1926, he executed and delivered to one Crawford an oil and gas lease covering the whole section. The lease provided, in part:
“It is agreed that this lease shall remain in force for a term of five years from date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee, and or if lessee shall commence drilling operations at any time while this lease is in force this lease shall remain in force and its terms shall continue so long as such operations continue with due diligence and if production results therefrom then as long as production continues.”
Provision was made in the lease that if no well be commenced on or before June 1, 1927, certain delay rentals be paid.
The elder Greenwood died in March, 1929, intestate, and as a result of settlement between his heirs, the southwest quarter of the section mentioned was conveyed to plaintiff by warranty deed which warranted the real estate free of incumbrances except the above-mentioned oil and gas lease.
At a time or times not disclosed by the record, Crawford disposed of all or a part of his interest in the lease, and when this action was commenced defendant was the assignee of the gas rights in the north three fourths of the section, and the assignee of an undivided one half of the oil and gas rights of the south one fourth of the section, or, so far as plaintiff’s southwest quarter is concerned, the owner of the gas rights in the north half and the owner of an undivided half of the oil and gas rights in the south half. The record does not disclose ownership of the oil rights in the north three fourths of the section, nor of the other undivided one half of the oil and gas rights in the south one fourth thereof.
Some months prior to the expiration of the primary term of the lease and in February, 1931, defendant drilled a well near the center of the northeast quarter of the section which then and since produced gas in paying quantities. This well is connected to a pipe line. No drilling has been done on any other part of the section. On September 24, 1931, defendant filed in the office of the register of deeds an affidavit giving notice that it had drilled a gas well, producing gas in paying quantities, and was entitled to possession of the leased premises under said lease. This notice erroneously placed the location of the well on the northwest quarter of the section, and on April 27, 1932, defendant filed a second affidavit in which location was corrected to read northeast quarter of the section.
We are not advised whether royalties have been paid on account of gas produced, nor whether plaintiff in the family settlement of his father’s estate retained his portion or disposed of it, but on or about December 14, 1933, he served a notice on defendant, reciting his ownership of the southwest quarter of the section, the lease to Crawford, stated the terms of the lease had been broken by the owner thereof; that he declared the lease forfeited and void and that if defendant did not within twenty days notify the register of deeds as provided by law that the lease was forfeited, he would file affidavits of forfeiture, and demanded that defendant execute and have recorded a proper surrender of the lease.
Sometime in January, 1934, plaintiff filed this action. His petition set up the execution of the lease by his father, that he obtained title by the settlement above referred to; that defendant had become owner of the interests in the lease as set out heretofore, referred to the affidavits as to production, alleged service of his demand for release, and alleged defendant's failure to comply. He further alleged that there being no’ production on his lands, the lease had expired by its terms; that one of the implied covenants was that his lands as well as other lands included in the lease should be drilled and explored for oil and gas and not held indefinitely without exploration; he set up at length an alleged custom of drilling one well on each quarter section, and that defendant had knowledge of such custom at the time it acquired its leasehold interests; that had the instant lease been released he could have leased to other parties at the rate of one dollar per acre and because thereof he had suffered a loss of $480; that by reason of defendant’s failure to file proper surrender of the lease he had been damaged in the sum of $100, and that he was entitled to a reasonable attorney’s fee for preparation and prosecution of his action. His prayer was for forfeiture of the lease and for damages and attorney’s fees.
Defendant’s answer admitted many of the allegations of plaintiff’s petition, denied the lease was subject to forfeiture or had terminated or that plaintiff had been damaged, and set up at length acquisition of its leasehold interest and its developments thereunder. Space forbids more than a reference to its allegation about the vast quantities of gas-producing lands in western Kansas; the lack of local demand or of facilities for transportation by pipe line. It also alleged effect of depressed economic conditions. It alleged that under the circumstances its development was reasonable, diligent, prudent and sufficient and for the best interests of the lessors and lessees under the lease, and that it had a valid and subsisting lease.
Plaintiff’s reply admitted the facts pleaded as to conditions in western Kansas gas fields, and the limited market, also as to economic condition, but denied they constituted a defense.
The cause was submitted on the pleadings and agreed statement of facts, as well as on briefs of both parties. After consideration the trial court found in favor of defendant, and plaintiff appeals. No findings of fact or conclusions of law were requested. The trial court did, however, render an opinion in writing from which it appears that it held the duty to develop the lease under the implied covenant was—
“Whatever ordinary knowledge and care would dictate as the proper thing to be done for the interests of both lessor and lessee under any given circumstances is that which the law requires to be done as an implied stipulation of the contract.”
that there was a showing there was no market for gas, if produced; that there is no suggestion or indication other producing wells adjacent to the land might drain the gas from plaintiff’s property or that there was any development of any kind in process; that drilling, under the circumstances, would have been at considerable expense to defendant and of no value to plaintiff. It further held the plaintiff stood in the same position as his father; that he inherited an interest in the entire lease; that his father could not deny receipt of consideration from the lease, and that if he had disposed of his interest except as to land he now owns, it was of no present concern. After discussing plaintiff’s claim for damages, the court said:
“However, I am not deciding tjie case on this point, but upon the sole ground that the plaintiff has failed to show that he is entitled to an equitable forfeiture under the facts and circumstances of this case.”
In consideration of an appeal in an action of the kind before us we start with the assumption that no special findings of fact having been made the trial court regarded as established all facts shown by the evidence which were favorable to the prevailing party. (Gas Co. v. Jones, 75 Kan. 18, 88 Pac. 587.)
It may also be assumed that it was the duty of the lessee, under implied covenant, to use reasonable diligence in the exploration and development of the leased premises so that the' avails of production, if any, might reach the parties entitled, and that if some production is had during the primary term of the lease, the work of development and production must be continued with reasonable diligence and along such lines as are reasonably calculated to make extraction of oil and gas from the leased land of mutual advantage and profit to the lessor and lessee. (Brewster v. Lanyon Zinc Co., 140 Fed. 801; Nigh v. Haas, 139 Kan. 307, 31 P. 2d 28.) In Cole v. Butler, 103 Kan. 419, 173 Pac. 978, it was said:
“It is now thoroughly settled law that such instruments carry the implied condition that operations shall be begun within a reasonable time. (Citing cases.)” (p. 421.)
And many of the cases hereafter mentioned hold to the same effect. While the trial court did not state at length the principle of law applicable, it is apparent that it was considering the admitted facts in view of the above cases and others cited therein.
Appellant relies on Elliott v. Oil Co., 106 Kan. 248, 187 Pac. 692, that want of market for gas produced is not sufficient to excuse additional development. In that case, however, there was forfeiture of an entire lease, in which there was an express stipulation that “sixty days after both producing and drilling operations cease this lease to be void and surrendered for cancellation.” (Syl. ¶ 4.) There is no similar stipulation in the lease before us. In that case it was said:
“It was not suggested either in the trial court nor here that further forbearance on the part of the lessor would give the lessees any hopeful chance of finding a market for the gas. The lessees have simply quit, and while the courts always give a willing ear to any rational theory for avoiding a forfeiture, we can discern no way the trial court could have avoided a declaration of forfeiture in this case.” (p. 252.)
Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 47, is often cited in connection with the question of implied covenant to develop. In that case a well was drilled which produced gas in marketable quantities, but the gas was not marketed. Other gas wells in the vicinity produced gas which was marketed. The lessee claimed that under its lease, it having paid the initial consideration, it was within its discretion to withhold the gas from market and to refrain from sinking other wells. In upholding a judgment of cancellation this court said:
“Ordinarily, when unnecessary delay becomes apparent, the lessor ought to call upon the lessee or party holding under him to do the things required under the lease, and to wait a reasonable time for such party to act. In this case the forfeiture was declared by notice, without previous warning. The attitude of the defendant, however, is such as to make the warning unnecessary. It claimed the right to hold this property without-development, and offered no excuse for delay and no promise to proceed. It rested, after this long delay, upon its asserted legal right. In this situation it would be unjust to leave the plaintiffs without redress.” (p. 564.)
In Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005, the lease in question covered two separate tracts. . There was considerable development of one tract, and none on the other which passed into separate ownership. The owner of the last tract brought action for cancellation because of failure to develop for a period of thirteen years. A demurrer to his petition was sustained and he appealed. This court said:
“The plaintiff asks the court, to cancel this contract, to decree a forfeiture of it, and not for default of any expressed provision of the contract but. merely for default of one of its implied covenants. The instances are rare where equity will enforce a forfeiture. It will never do so where less drastic redress will satisfy the demands of justice. (Brewster v. Lanyon Zinc Co., 140 Fed. 801, 72 C. C. A. 213.) Forfeitures of oil and gas leases for breaches of mere implied covenants are seldom decreed. (Davis v. Gas Co., 78 Kan. 97, 96 Pac. 47; Brewster v. Lanyon Zinc Co., supra; Thornton on the Law Relating to Oil and Gas, 2 ed., §§ b91, 157.)” (p. 405.)
and sent the case back for determination of damages or in the alternative that the defendants be required to develop within a reasonable time.
In Brown v. Oil Co., 114 Kan. 166, 217 Pac. 286, 114 Kan. 482, 218 Pac. 998, the action was to cancel part of an oil and gas lease of 2,347 acres of land because of nondevelopment. The lessee had expended large sums of money in developing a part of the leased land, pleaded adverse market conditions and expressed an intention to make further development. The evidence showed, however, there was successful and profitable production on adjacent lands on three sides of the leased real estate. The trial court refused cancellation and plaintiff appealed. This court reversed, directing that the lessee should be required to designate the part of the land it wished to develop, to commence work within a stipulated time and prosecute such work with reasonable diligence.
In Nigh v. Haas, 139 Kan. 307, 31 P. 2d 28, cancellation of part of a lease was upheld. There a part of the lease was assigned and the lands covered were developed. Although demand was made for development of the remainder, nothing was done. Ten years after the lease was given, the landowner gave notice, as provided by statute, that the lease was canceled on the undeveloped land. Later another lease was made on this part of the land, and operations under it were successful. Assignees of the original lease then asserted claims. This court, in affirming the trial court’s judgment quieting title against the original lessees, held that they abandoned the lease on the tract in question when they segregated it by assignment of a part of their lease,, and by refusal to drill on it for about fifteen years.
Space forbids a review of many other decisions of this court dealing with the general proposition of what state of facts warrants either absolute or conditional forfeiture of an oil and gas lease.
We may notice here appellant’s claim that the trial court did not give sufficient weight to the alleged custom to drill one well on each quarter section. As we understand the trial court’s written opinion, this custom would be of consequence only in determining what would be an equitable order, if there were breach of the covenant to reasonably develop. Assuming that evidence as to custom is admissible, we note the agreed statement only goes so far as to say that in determining location of a well, it is located as near the center of the quarter section as possible, and that it is customary to consider a producing well so located as constituting full development.' It is then stipulated that while this custom prevails as to location of wells, there are many instances where one well is considered full development of specified acreage, and a tabulation attached shows 28 wells as constituting development of tracts ranging from 240 to 840 acres. Our own calculation from this tabulation shows an average of one well to 382 acres as constituting full development. There is no showing as to the number of wells on 160-acre tracts in the territory covered by the tabulated tracts. We cannot say the trial court did not give the stipulation as to custom the weight to which it was entitled.
In view of the decisions noted, and they are as favorable to appellant’s contentions as any cited or which our independent investigation has disclosed, did the trial court err in not ordering the lease canceled? Or is there such difference in the facts of the case at bar that it is not controlled by those cases? Although there may 'be other reasons therefor, some of those compelling reasonable diligence in extending exploration under an oil and gas lease are the migratory nature of the product sought, the fact that exploration and production from adjoining lands has the effect of draining the oil and gas from the leased but undeveloped real estate, and that failure to explore and obtain production, if any is to be had, results in loss to the lessor. Here no claim is made that there is either present production or exploration for future production on adjacent real estate, and nothing to indicate that oil and gas in place may not remain there for months, except as depleted through the one well now on the entire leased premises, and from which well, so far as the records show, plaintiff has his share as an heir of his father, the original lessor. And it must be noted that in those cases holding that lack of market and depressed business conditions do not excuse failure to use reasonable diligence in development, it has been shown either there was a market, or that production from adjacent leased lands was being marketed. And another matter is to be noted as bearing on the question whether reasonable diligence has been used. It is stipulated that when the instant lease was taken, the real estate covered and adjacent territory was wildcat territory, but thereafter wildcat wells were drilled and gas in paying quantities was found to underlie many hundreds of thousands of acres in Stevens county and adjacent counties; that only a small or limited amount of the gas said wells, are capable of producing is being trans ported by a few pipe lines which have since been built into that territory, and because of the newness of the field and its enormous capacity and its distance from large centers of population sufficient markets have not been found or developed to market the possible production. There is no showing that, except as to plaintiff’s lands, the field has been fully developed. Rather the inference to be gained is that it has not. .
The present action, although in part for damages, so far as forfeiture of the lease is concerned, is equitable in its nature. Forfeitures are not favored. (Alford v. Dennis, supra.) While it has been held that, under certain conditions, notice to explore is not a condition precedent to bringing an action for forfeiture, yet the fact a suit is brought without any demand having been made by the landowner upon the lessee that further development be made, has some bearing on the question whether the conduct of the lessee is such that the landowner is entitled to the rather harsh remedy of forfeiture.
Although not urged by appellant, the question arises whether the court should have made an order that lessee either extend development or surrender parts of the leased premises which it does not desire to develop. There are perhaps two answers. One is that appellant did not seek such an order. Another is that under the admitted facts it would be inequitable to compel drilling of another well on the leased premises, the cost of which would be burdensome to the lessee, and under conditions as disclosed by the record, of no benefit to the appellant.
A careful examination of the record does not disclose, the trial court erred in rendering judgment in favor of the defendant, and its judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action to recover from the heirs of John A. Firmin, deceased, compensation for services rendered them by the plaintiff as special agent for eleven years and for expenses and funds advanced in caring for the real estate of the deceased for the benefit of the wife and children of the deceased. The second count of the petition refers to a judgment obtained by the defendants against the plaintiff, and alleges that defendants are insolvent, and if said judgment is satisfied plaintiff will have no adequate remedy at law, and therefore asks that the defendants and the sheriff be restrained and enjoined from collecting such judgment.
There is a serious disagreement as to what is involved in this appeal. The plaintiff, as appellant, insists that the question is whether or not the trial court committed error as a matter of law in refusing to grant the injunctive relief prayed for in the petition, urging that the allegation of insolvency with the admission of such as to some of the defendants, entitled plaintiff to the injunction for which he prayed, citing also a clause in the letter of the trial judge to the attorneys before rendering the decision, wherein it is stated: “I do not believe that the court should enjoin the collection of a debt in the form of a final judgment of this court.”
The appellees maintain that the issue here involved is the right of the plaintiff to appeal from an order of the trial court dissolving a restraining order granted by the probate judge, and they have filed in this court their motion to dismiss the appeal.
The record shows that on February 20, 1935, the day this action was commenced in the district court of Stevens county, a restraining order was obtained by the plaintiff from the probate judge of said county, the district judge being absent from the county, restraining the defendants from proceeding further under execution for the collection of the judgment against the plaintiff. Thereafter a motion was filed by the defendants in the district court for an order dissolving and holding for naught the injunction or restraining order theretofore issued in the action by the probate judge. The district judge disqualified himself and by stipulation a neighboring district judge was named as judge pro tern.
The journal entry recites that—
“. . . this matter comes on for hearing before Honorable Fred Evans, judge pro tern, upon the motion of the defendants to dissolve the restraining order heretofore issued and upon the demurrer to the cross-petition herein filed; . . .
“. . . thereupon the defendants introduced their evidence in support of said motion and the demurrer was argued on behalf of the plaintiff and the defendants; whereupon the court took the said matter under advisement.
“Now on this 3d dayv of July, 1935, the court, after considering the arguments and authorities finds:
“1. That said restraining order was wrongfully obtained and that the same should be and hereby is dissolved.”
The journal entry further gives the ruling upon the demurrer, which matter is not here involved. Thereafter the plaintiff gave notice of appeal in the following language:
“The defendant will take notice that plaintiff appeals to the supreme court from the order of the district court made on the third day of July, 1935, dissolving the restraining order in this ease, which restraining order was issued on the 20th day of February, 1935, and was duly approved and filed the same day.”
And in the same connection the plaintiff gave an injunction bond on appeal which first recited the issuing of a restraining order on the 20th of February, 1935, and that “on the third day of July, 1935, said restraining order was dissolved by the order of the district court,” and in the next paragraph that “the plaintiff appealed to the supreme court from the order of the district court dissolving said restraining order.”
The clause in the preliminary letter of the judge pro tern, which was quoted above, in line with appellant’s contention that the ruling of the court was not upon the motion to dissolve but upon the prayer in the second count of the petition for an injunction, was followed by this statement: “under all the facts and circumstances appearing, I do not feel justified in continuing the restraining order in effect. In m-y opinion, it should not have been issued in the first place.”
After the appeal was filed in this court the defendants filed with the clerk of this court a motion to dismiss the appeal for different-reasons, among which was that it was not an appealable order. Three days later when a stay order was requested and allowed this motion was denied, and then, on October 28, 1935, a similar motion to dismiss was refiled, and a few days later it was passed to be heard with the merits of the case.
The appellant argues there is a confusion and inaccuracy in the use of the terms injunction and restraining order, which are often used synonymously, citing State v. Johnston, 78 Kan. 615, 97 Pac. 790, and State v. Werner, 80 Kan. 222, 101 Pac. 1004, insisting, as was therein held, that the effect and not the name was what should control, and applying this doctrine to the case at bar appellant contends that the pro tern judge acted on the prayer of the petition for an injunction by denying the same and not upon a motion to dissolve a restraining order already granted, and that the plaintiff’s appeal is from the refusal to grant the injunction for which the plaintiff prayed in his petition.
We have cited some of the many references to the matter as contained in the record which make it impossible for us to accede to appellant’s theory. What was actually done in the district court in this connection does not wholly depend upon the inaccurate use of the terms temporary injunction and restraining order, but this theory is confronted with the general terms of the motion to dissolve,, the journal entry dissolving the restraining order, the notice of appeal and the appeal bond. The date of the restraining order is given in some of these! instruments and the statement that it was issued by the probate judge.
If the trial court acted on the prayer of the petition as to the granting of an injunction, the journal entry brought up here by the appellant fails to show it either directly or by implication.
Appellant cites many cases holding that the granting or refusing to grant orders of injunction are reviewable in this court, but they cannot apply to the case at bar, where the only action of the trial court in this connection was to dissolve the restraining order granted by the probate judge. R. S. 60-3331, which provides for appeals in attachment and injunction matters, does not include rulings dissolving restraining orders. (Laswell v. Seaton, 107 Kan. 439, 441, 191 Pac. 266.) Restraining orders issued by probate judges are only intended to be operative until the district court or the judge thereof can act upon such matters. (R. S. 60-1103.) Matters are only appealable where authorized by statute. (Constitution, art. 3, § 3.) This is not a final order nor such a ruling as is enumerated in R. S. 60-3302, as reviewable in this court.
The motion to dismiss the appeal should be sustained.
The appeal is dismissed.
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The opinion of the court was delivered by
Burch, C. J.:
The action was one by plaintiff to recover from the school district compensation for transporting his children to school, and compensation for services as an officer of the district. Judgment was rendered for defendant on an agreed statement of facts, and plaintiff appeals.
Plaintiff was clerk of the school board of the district for three years, ending May 26, 1933, the day on which the annual school district meeting was held. On May 31 he presented to the board a written claim, embracing four items, totaling $257.55. On the same day the board rejected the claim. On July 14, 1933, plaintiff commenced an action before a justice of the peace for the sum claimed, and recovered. The school district appealed to the district court, with the result stated.
During the school year 1930-1931, plaintiff transported his children to school and said nothing about compensation for that year until May 31, 1933.
Plaintiff transported his five children to school during the school year 1931-1932. After school was out, he claimed compensation, which was paid, except as to one boy, who was more than sixteen years of age. The statement of agreed facts does not show the sum paid was objected to as insufficient in amount.
For the school year 1932-1933 the school district made provision for transportation of plaintiff’s children, but on the first day of school plaintiff refused to accept the means of transportation provided.
Shortly before plaintiff ceased to be a member of the board he conceived the notion the school district owed him for official services.
Plaintiff’s entire claim was one which should have been presented to the school district board on or before May 15, 1933, pursuant to the cash-basis law, which took effect March 31, 1933. (Laws 1933, ch. 319.)
The school district had no indebtedness except that to plaintiff, and plaintiff says the school district had funds with which to pay him. The cash-basis law does not require refinancing in such cases, but contemplates payment. (§ 2.)
Plaintiff says the notice required by the cash-basis law was not given. Plaintiff was a member of the school board at the time the school district was required to ascertain its financial condition, and at the time notice was required, and cannot take advantage of any procedural delinquency of the board in respect to compliance with the cash-basis law.
At a meeting of the school-district board held on May 13, two days before expiration of the time within which unknown creditors might present claims, plaintiff made an oral demand for compensation for transportation for the year 1932-1933, and for salary. On the same day the claim was rejected. If plaintiff intended to insist on his demand he should have presented a duly verified voucher, covering the claim, on or before May 15. (§ 4.)
The time allowed by the statute for presentation of claims by creditors was plainly not too short for plaintiff. It is presumed he knew the law (Drum v. French, 138 Kan. 277, 25 P. 2d 579), and not having complied with the law, he may not recover.
The judgment of the district court is affirmed.
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The opinion of the court was delivered' by
Harvey, J.:
This is an action to set aside a will and the probate thereof. The trial court sustained a demurrer to plaintiff’s petition, and she has appealed. The questions argued can be shown best by setting the will out in full. It reads;
“I, Gertrude E. Stewart, of Lawrence, Douglas county, Kansas, being of lawful age and sound mind and memory, do hereby make, publish and declare this instrument of writing to be and contain my last' will and testament.
“I hereby state that my property consists of money in bank, mortgages on real estate, together with some bonds and other securities. I have two daughters, Mrs. Corinne Stewart Baker, of North Bend, Ore., and Mrs. Frankie Stewart Hickman, of Kansas City, Mo., who are my sole heirs at law.
“First. I direct that all of my just debts, funeral expenses and the expenses of the settlement of my estate shall be paid in full.
“Second. In the event that at the time of my decease my daughter, Mrs. Corinne Stewart Baker, is still the wife of L. L. Baker, I give and bequeath to her the sum of one dollar (SI) to be paid from my estate.
“Third. I give and bequeath to my daughter, Mrs. Frankie Stewart Hickman, aforesaid, all the remainder and residue of my estate of whatever kind and nature.
“Fourth. But in the event that my daughter, Mrs. Corinne Stewart Baker, aforesaid, shall at the time of my decease be a widow, or shall have obtained a divorce from L. L. Baker, and shall no longer be the wife of L. L. Baker, then I desire and order that my two daughters, Mrs. Corinne Stewart Baker and Mrs. Frankie Stewart Hickman shall share equally, share and share alike, in my estate.
“I hereby nominate and appoint my daughter, Mrs. Frankie Stewart Hickman, executor without bond of this my last will and testament, with full power to carry out all of its provisions.
“In Witness Whereof, I have hereunto subscribed my name this 12th day -of December, 1925, in the presence of Mina P. Dias and Narsie Carter, who are requested by me to attest and subscribe this will as witnesses, and in whose presence I do hereby acknowledge the same to be my free act and deed.
“Gertrude E. Stewart, Testator.
“Signed, sealed, published and delivered by the said Gertrude E. Stewart, the testator above named, as and for her last will and testament, in the presence of us, who at her request and in her presence and also in the presence of each other, have hereunto subscribed our names as witnesses this 12th day of December, 1925. Ella Hildebran,
Mina P. Dias, Witnesses.”
Appellant first argues that the instrument is not properly witnessed, for the reason that the testator in the body of the will named two persons before whom she had executed it, and whom she requested to sign as witnesses, only one of whom did so.
This point lacks merit. The attesting clause recites that the instrument was executed and acknowledged in the presence of two attesting witnesses. • This is all the statute (R. S. 22-202) requires. The order of the probate court admitting the will to probate is prima fade evidence of due attestation (R.. S. 22-224), and the petition contains no allegations of fact tending to establish that the statements of the attestation clause are not true. The fact that one of the attesting witnesses was not named as a witness by the testator in the body of the will is of no consequence.
Appellant further argues that the provisions of the will tend to promote divorce or homicide and are void as against public policy. In the petition it is alleged that the testator died August 26, 1927, almost two years after the will was executed; that the testator had a strong dislike for plaintiff’s husband, L. L. Baker, and urged plaintiff to sever her marriage relation with him, and that on being refused the testator executed this will and “flouted the same before the eyes of this plaintiff and demanded that this plaintiff get rid of her husband.” This presents the only meritorious question in the case. We regret that it was not better briefed by counsel. We have investigated the authorities as fully as our limited time would permit and have reached the conclusion that the point is not well taken.
At the beginning of the discussion we note, for whatever bearing it may have, that there is no allegation in the petition that the testator was unduly influenced by anyone in the making of her will, neither is it alleged that she was of unsound mind or laboring under an insane delusion. For all the petition alleges the testator may have been justified in her dislike of plaintiff’s husband. Parents have considerable latitude in advising their children regarding their marriage relations, and under some circumstances may properly advise a separation; indeed, it may become their duty to do so. Generally speaking, a testator of sound mind and not under undue influence has a right to dispose of his property by his will as he pleases. The validity of the will of such a person is to be determined primarily from the language of the will. If the language of the will can be reasonably construed to sustain its validity, that construction should be given to it, rather than to give the language a construction which would render the instrument invalid. Extrinsic evidence may be received to show the extent of the testator’s property, but, in the absence of allegations of undue influence, such evidence is incompetent to show the motives which prompted the testator to dispose of the property as he did; hence, allegations in the petition in this case as to those matters must be disregarded.
It is a common provision in wills that a devise or bequest shall vest in certain beneficiaries in the event of the death of a person named. Such provisions have never been held invalid for the reason that they tend to induce the beneficiaries to kill the person named, or to accelerate the event of his death by any unlawful means; rather, such wills are construed as arising from the lawful ideas of the testator that thé death of the person named would eventually take place from natural causes.
Appellant stresses the argument that a gift or devise in restraint of marriage, or tending to bring about a separation or divorce between husband and wife, is void as against public policy. We are not cited to a case, and our own search discloses none, in which this court has heretofore passed upon this question. There are many cases, however, in the English and other American courts treating the question, or some phase of it. The principle of the common law is laid down by Coke and Cruise:
“If an estate be given to a woman ‘dum sola juerit’ (while she shall remain sole) or ‘durante viduitate (during widowhood), the grantees have an estate for life determinable upon the happening of these events.” (1 Just. 42 (a), Cruise Dig. Tit. Estate for Life, ch. 1, § 8.)
In England the ecclesiastical courts were powerful and influential for many years and took over very largely the questions pertaining to the family relation. These courts encouraged marriage and frowned upon divorce, and held, generally speaking, that any gift or devise which made it to the financial advantage of a single person to remain unmarried, or for a married person to obtain a divorce, or a husband or wife to live separately and apart from the other, was void. Rules pertaining .to that subject were clearly ■traceable to the civil law and ultimately to the Roman. The ecclesiastical courts dealt only with personal property. When the common-law courts were called upon to decide similar questions they were sometimes seriously embarrassed with precedents already established in the ecclesiastical courts. The courts of chancery found difficulty in harmonizing these conflicting views in accordance with equitable principles. The result was a lack of harmony in the decisions which even the English courts deplored. (28 R. C. L. 321 et seq.) A similar lack of harmony existed in the early American decisions. (1 Story’s Equity Jurisprudence §§ 291a, 291e, 291d.) Lack of harmony among the decisions of the various jurisdictions still exists. (See cases collected in the notes, 49 L. R. A., n. s. 633, 637, and 45 A. L. R. 1220.) Generally speaking, it may be said that the courts of equity and of common law in England, and generally the American courts, are inclined to hold as void only those gifts, legacies or devises which would be an unreasonable restraint of marriage, or which tend to cause a separation between married people unlawfully, or without just cause, rather than to follow the rules of the ecclesiastical courts, although a few of the American decisions prefer to follow the rules of the ecclesiastical courts in their entirety. (40 Cyc. 1699 et seq.; also 1712, ¶ n.)
Some of the courts have noted that the real question for determination is whether or not the specific provisions in question are against public policy, and have pointed out that our civilization has developed different ideas with respect to the marriage relation, and especially with respect to the rights, duties and obligations of married women, than those entertained by the early Romans and which found their way into the rules of the ecclesiastical courts of England. (See Wise v. Crandall, 215 S. W. 245 [Mo. Sup. Ct.].) Hence our standard of what constitutes public policy differs from the standards constituting the public policy of those days. 'While the laws of our state provide for marriages, and may be said to encourage them, and our public policy may be said to encourage marriage and the maintenance of homes, there would seem to be no valid reason why a parent, in making provision for his children by a will, especially provision for his daughter, might not make the enjoyment, or full enjoyment, of the gift dependent upon the event of her marriage; and several courts have held valid such provisions.
With respect to divorce, our statutes and public policy may be said not to encourage divorce, but our statutes provide for divorces to be granted for specific reasons. In Daboll v. Moon, 88 Conn. 387, it was said:
“It never has been the policy of this state, as it formerly was the policy of the church to compel people married to each other to continue for life in that relation and to cohabit together, regardless of their inaptitude for such cohabitation, and however unfitted they may be in disposition and temperament to mutually perform the duties of the marriage relation. The state does not favor, divorces; but allows them for several causes, because it believes the interests of society will thereby be better served, and that its own prosperity will thereby be promoted.” (p. 391.)
The same may be said with respect to our own statute and the public policy of this state. A provision in a will-cannot be said to be against the public policy of this state from the simple fact that the gift or devise depends upon whether or not an event has occurred which is in harmony with our statute and the public policy of our state.
The leading American cases dealing with the question of gifts and devises, and depending upon the marriage of the beneficiary, an unmarried person, are: Wise v. Crandall, 215 S. W. 245 (Mo. Sup. Ct. 1919); Turner v. Evans, 134 Md. 238; Ijams v. Schapiro, 138 Md. 16; Wilmington Trust Co. v. Houlehan, 131 Atl. 529 (Del. Ct. of Chancery, 1925); Maddox v. Yoe, 121 Md. 288; Logan v. Hammond, 155 Ga. 514; Glass v. Johnson, 297 Ill. 149; Thompson v. Patten, 70 Ind. App. 490; Pacholder v. Rosenheim, 129 Md. 455; Meek v. Fox, 118 Va. 774; Sullivan v. Garesche, 229 Mo. 496; Williams & Williams v. Cowden, 13 Mo. 212; Bryan v. Harper, 177 N. C. 308, 98 S. E. 822; In re Miller, 159 N. C. 123; Matter of Seaman, 218 N. Y. 77; Harlow v. Bailey, 189 Mass. 208; Goffe v. Goffe, 37 R. I. 542.
Of the American cases concerning gifts or devises to persons who are married, the benefits, or increased benefits, to depend upon whether or not there is a separation or divorce, in three of them the provisions were held to be invalid as tending unlawfully or unreasonably to cause a separation.
In Brizendine v. American Trust & Savings Bank, 211 Ala. 694, a mother, owning considerable propertj’-, made specific bequests and disposed of one-half of the remainder in a specific manner, and provided :
“The other half of my real estate I will bequeath to my own son, Frank L. Brizendine, provided he will reform, and give up living with, or having anything to do with this Mrs. Moore by name, whom he now lives with, and who alienated Frank’s affections from his legitimate wife and son, Frank Brizendine, Jr., and he, Frank Brizendine, shall not have a. dollar of my' real estate, unless he forsakes her (Mrs. Moore) and has nothing to do with her for a period of seven years, and proves that he has given her, Mrs. Moore, up — then I bequeath him, Frank Brizendine, the other half of all my estate.” (p. 695.)
The son was legally married to Mrs. Moore in July, 1921, and she was his legal wife at the execution of the will in October, 1921. He had been married before, but had been divorced from his wife and was allowed by the court the privilege of marrying again. The court said:
“It is evident that the testatrix intended to bring about a separation or divorce between her son and his wife by this condition precedent in the will to the vesting in him of an undivided one-half interest in this real estate. This condition is void; the devise to the son is valid and the title to this one-half of the real estate of the testatrix vested in him at her death subject to the payment of the debts of the estate and its pro rata share of the legacies, as aforesaid. This condition is against public policy, and it will not be sanctioned by the law. This condition in this will is void as against public policy. (40 Cyc. 1703; Hawke v. Euyart, 30 Neb. 149; In re Estate of Gunning, 234 Pa. 139.)” (p. 698.)
In Conrad v. Long, 33 Mich. 78, the testator devised the lands in question to his mother for life and after her death to his brother one-half and the other half to his “sister Elizabeth Long, upon this condition: if at any time subsequent she should conclude not to live with her present husband, Henry Long, as his wife. But if she continue to so live as the wife of said Henry Long until her death, then, in that case I give and bequeath all my property ... to my aforesaid brother.” (p. 79.) It was claimed on behalf of Conrad that the will established a condition precedent, which was void, and that no estate could attach. The court said:
“That the condition is void is admitted. It is contrary to the plainest principles of public policy to stipulate or provide in this way for a separation of husband and wife as a condition to the enjoyment of an estate. No separation against their will, except by divorce, is consistent with the nature of the marriage contract, which is of public as well as of private concern. But we find here nothing in the nature of a condition precedent. . . . We think she took an estate clear of conditions.” (pp. 79, 80.)
In Hawke v. Euyart, 30 Neb. 149, a devise in a father’s will in favor of a son addicted to intemperate habits, made in form to the executors of the will, directed that at the end of ten years, if the son had reformed, the executors should convey the land and trust fund to the son, held that the devise was conditional on the reformation of the son and was valid, but a subsequent provision that the trust fund should not be transferred until the executors had satisfactory proof that the son “has permanently freed himself from all influence, connections, associations, cohabitations and relations, of every name, character and description, of and with Mrs. G. and her relatives, friends and intimates [Mrs. G. at the time of the making of the will being the wife of the son and living with him, a fact known to the testator], held to be a condition against public policy, and void,” and (if the other conditions be fulfilled) the son was entitled to the devise and the bequest free from this condition. In the opinion it was said:
“The question. ... is one in restraint of the continuation of the marriage relation. ... I think there can be no doubt, either as a question of reason from moral premises or of legal authority, not only that such condition is void, but, having been declared void, it leaves the bequest of the testator operative the same as though the condition had not been sought to be made by will. . . . Had the devisee not been lawfully married at the date of the last publication of the will of the testator, I should be of the opinion that, under the arguments and authorities of the counsel for appellees, the peculiar conditions of the will here considered would be upheld; but wholly otherwise when the marriage had been solemnized before the publication of the will.” (p. 160.)
In the following cases the provisions were held valid: In Williams v. Hund, 302 Mo. 451, a mother, whose estate was valued at more than $200,000, left a will making four specific legacies aggregating $21,000. The remainder was conveyed to a trustee with directions to pay her son Henry $200 per month during his life, and if the executors thought he would not squander it, to advance him an additional $5,000 with which to engage in business, and in the event the trustees thought he had settled down and shown himself capable of prudent ownership and control of the estate, to convey the entire estate to him. In item 9 it was provided: “In view of the fact that my said son at this time is married to a woman, commonly known as Nora Sheldon, who is generally known to be a woman not of good character, it is my wish and I direct that she be permitted in no way to share in my estate. . . . Should she be the wife of my said son at the time of my death, or at the death of my son, no provision is to be made for her. . . . Should my said son at any time, even after my death, become divorced from her, or should she die before the death of my said son and if thereafter, that is, either after he is divorced from her or after her death he should remarry” (p. 458) a woman of good repute, then at the death of her son this $200 per month was to be paid to such widow during her life. The son and his wife, Nora, mentioned in the will, lived, together for more than two years after the death of the testator, when she obtained a divorce from him. About four years later the son married a woman of good repute.' Later the son died. The question was whether the second wife, who became a widow at the son’s death, should receive the $200 per month during her life. The court held she should, and this was affirmed. The court said:
“Appellants contend that paragraph 9 of the will is void as against public policy in that it offered an inducement to Henry Lutz to procure a divorce from his first wife. That is a perversion of the language of the will. . . . The will anticipates and makes provision for future contingencies. If it had provided that Henry should have $200 a month during his lifetime, on condition that he should divorce his wife, such condition would be contrary to public policy and void, and Henry would have taken the legacy freed from the illegal condition.” (p. 473, citing Witherspoon v. Brokaw, 85 Mo. App. 169, 173, and Knost v. Knost, 229 Mo. 170, 179.)
In the last case a father made a will in which he made certain provisions for his widow and children. To one daughter he gave a much larger share in the event she did not marry than if she did. The question was whether this provision was valid. The court held it was void.
“A condition subsequent in a will in total restraint of marriage is invalid except as to widows.” (129 S. W. 665, headnote.)
In Coe v. Hill, 201 Mass. 15, a father made a will giving to a son and one daughter a certain share of the estate, the remainder to a trustee to manage, invest and care for and pay to his widow a certain share of the income and on her death to divide the same equally among his children, except that the share that would be paid to a certain married daughter should be held in trust, she to receive the net income, and at the death of her husband, or upon permanent and legal separation from him, to receive the principal sum free from any trust. It was held that the gift to the daughter upon the death of her husband, or on permanent and legal separation from him, was not founded upon a condition precedent intended to bring about her separation from him so as to render it valid. In the opinion it was said:
“If the testator’s purpose was to induce a future separation or divorce of his daughter from her husband, upon the happening of which the fund with accrued income would immediately become payable to her, the condition for this reason would be void. . . . But while the testator’s intention is the only test, the language he employed is to be construed in the ordinary sense, and for this purpose the condition, which is made dependent upon either one of two contingencies, is to be treated as a whole. If this is done, -then, upon either the death of the husband or upon a divorce between them, whether obtained by her or by him, the fund vests in possession, but it would be a plain perversion of words to say that the testator meant, or intended, that in order to accelerate the enjoyment of the property the petitioner should procure either her husband’s death or a divorce. . . . [The language was]: ‘If my daughter becomes a widow,’ or ‘If because of her husband’s marital misconduct she lawfully obtains an absolute divorce, then the trust as to her is to be terminated, and she is to have her share of the property.’ ” (pp. 21, 22.)
The court further says:
“The voluntary-exercise by a legatee of a right which the law confers is not against public policy, and does not avoid a testamentary gift, the language of which may show the testator had in mind that such a contingency might arise.” .(p. 22.)
In Ransdell v. Boston, 172 Ill. 439, a bequest was made to executors in trust for the use of testator’s son until such time as he should become unmarried, in which event he was to- have the land in fee, but if he died without being divorced and childless the land was-to go to other devisees. Held, not contrary to public policy nor void. The will of the father placed his property in trust for the use of his son until such time as he “shall become sole and unmarried; and, upon the happening of that event,” (p. 440) the property to vest in the son in fee. The opinion observes that while the language of the testator impresses one with the belief that he desired his son to obtain a divorce, there are certain facts which go far to sustain the view that his purpose was simply to secure the gift to his son in the manner in which he considered it would render the most benefit to him in view of the relations then existing between him and his wife. They had been separated for several years prior to the execution of the will, and a divorce suit had been pending for more than two years in which each alleged statutory grounds against the other for divorce. So the provisions of the will cannot be said to encourage either the separation or the bringing of the suit, as both had taken place. The court did not regard as competent extrinsic evidence made before the will was executed to the effect the testator thought, as the son and his wife had separated, they had better remain so, and if they lived together he would disinherit the son, that he could not do much for his son while he lived with his wife.
“The general rule is that, in the construction' of wills, parole testimony is competent to prove the circumstances of the testator at the time, the condition of his property, his relations to his family, etc., but never to prove his declarations prior to or after the execution of the instrument.” (p. 446.)
In Thayer v. Spear, 58 Vt. 327, a will, devising the entire income of an estate to a married woman, so long as she remained the wife of her then husband, but if from any cause she should cease to be such wife, then to her in fee, was held not void as against public policy. In the opinion, after referring to Story’s Equity Jurisprudence 291a, it was held the principles there stated did not defeat the will; that they apply generally to cases in which an inducement was directly held out to encourage a voluntary separation of husband and wife and where the intent to encourage separation could be found in the language employed in making the bequest.
In Daboll v. Moon, 88 Conn. 387, a father’s will left his estate to three sons. The share of one son was given to him “upon the death of his present wife, or if he shall obtain a divorce from her or shall become separated from her,” but if the son “shall ever return to live with his present wife his interest in said trust shall be divested and he shall not be entitled to receive any of the benefits thereof.” (p. 388.) The son did not separate from his wife, and was living with her at the time of the action. He claimed that the gift to him was illegal as against public policy, and that the gift thereby became absolute. Held, that the provision was not void. In the opinion it was said:
“The gift was to vest in the donee upon the death of his wife, upon his divorce from her, or if he permanently separated from her. We are asked to say that the condition upon which the legacy was to vest is void as against the public policy of this state, and that the result of this is to make the gift absolute, so that it vests in the donee without performance of the condition. It is clear from the langauge of the will that the result claimed would be directly contrary to the expressed intent of the testator. . . . The cardinal rule in the interpretation of wills is to seek and carry out the testator’s intent. ... It has never been the policy of this state as it formerly was the policy of the church to compel people married to each other to continue for life in that relation and cohabit together, regardless of their inaptitude for such cohabitation, and however unfitted they may be in disposition and temperament to mutually perform the duties of the marriage relation. The state does not favor divorces; but it allows them for several causes, because it believes the interests of society will thereby be better served, and that its own prosperity will thereby be promoted. ... To make the condition void as against public policy it must appear from the language of the will alone or in connection with extrinsic facts that the testator in the particular case in question conditioned his gift upon an illegal divorce or separation. . '. . Where it is possible that the condition may be legally performed, it will not be presumed that the testator intended an illegal performance. The present gift was upon alternative conditions, one of which was the death of Willard’s wife. It will not be presumed that the testator, in the absence of express language so directing, intended that his son should procure his wife’s death.” (pp. 388-392.)
The same reasoning was applied to the question of divorce.
In Dusbiber v. Melville, 178 Mich. 601, the will provided:
“I understand that Florence A. Melville . . . has been compelled by the extreme cruelty of her husband to leave her home and that she cannot live with him because of his cruelty toward her. Now, my will is, that in case she shall be compelled to live apart from her said husband . . . and shall have to support herself, that I give, devise and bequeath to her . . . the sum'of two thousand dollars.” (p. 602.)
The testator was a bachelor. The will was executed eight days before his death. He and Mrs. Melville had been very friendly and in each other’s company a great deal for two or three years. This fact had led to trouble between her and her husband and led to divorce proceedings, which were pending at the time of the testator’s death. The will was upheld.
In Snorgrass v. Thomas, 166 Mo. App. 603, a will provided that a certain sum should be held in trust for the testator’s daughter and in case she “shall lose her husband” be paid over to her absolutely. Held, the daughter was entitled to the bequest free from the trust after securing a divorce from her husband, where it appeared that the testator’s intent was to protect the bequest against possible inroads by the husband during marital relations. The court held that the provision applied in the event of the divorce as well as in the event of the death of the husband, and that there was nothing in the will to indicate that the daughter would be induced thereby to get a divorce from her husband without reason.
“Certainly a father acts within the scope of his parental right in protecting a devise, or bequest, to his child against the possible depredations of her husband and in providing for the vesting of the absolute estate in the child on the cessation of the cause of the protective measures.” (p. 612.)
In Ellis, Executor, v. Birkhead, 30 Tex. Civ. App. 529, a testator’s will “in order to secure a sustenance” to his daughter against business vicissitudes and the improvidence of her husband, conveyed all his property to a third person in trust. It provided that should the daughter outlive or be divorced from her husband then the trust was to expire. Held, not void as against public policy. Further,
“That it not appearing from the terms of a will itself that a certain provision therein was void, as tending to incite testator’s daughter to procure a divorce from her husband, extrinsic evidence to the effect that testator had objected to the marriage, etc., was not admissible to show such intention.” (71 S. W. 31, headnote.)
In the case of In re Gunning’s Estate (No. 1) 234 Pa. 139, the will, after making certain bequests, provided:
“The income of the balance to be given to Karl F. Miller, provided he is not living with the woman he married in 1899 — one Jane Wilson — should she die, or he be divorced from her — that is, finally divorced — he is to be given absolutely one-half of the principal, and the interest of the other half as long as he lives.” (p. 141.)
It was held that this was a condition precedent and is not either impossible or illegal, and where the devisee was living with the woman at the time of the death of the testatrix he was not entitled to take.
“Wills should be construed to speak and take effect as if executed immediately before the death of the testator, unless a contrary intent shall appear.” (Syl. ¶ 3.)
In the opinion it was said:
“It is a fair construction of the language used by testatrix to regard the condition placed upon Miller’s right to take as applying to the time when the will became effective; that is, at the time of her death. This avoids the inference that by postponing the time of fulfillment of the condition to a time subsequent to her death, the testatrix intended to hold out an inducement to Miller to separate from or procure a divorce from his wife. The prime purpose of the condition evidently was to prevent the then wife, Jane Wilson Miller, from receiving any benefit under the will.” (p. 142.)
There is further discussion that in considering any restriction there is no presumption of illegality; on the contrary, the presumption is in favor of innocence and validity.
Now let us look at the will in question. The testatrix was a mother whose only heirs were two daughters, each of whom was married. By the terms of the will the estate vested at the time of the death of the testatrix — not at some future time. In whom the property vested depended upon conditions existing at the time of the death of the testator. In this respect this will is like the one construed in In re Gunning, supra, in which it was held there was no room to apply the principle applicable to wills designed to cause a separation of married people. The will provides, “in the event” the testatrix’s daughter, Mrs. Baker, at the time of the death of testatrix, is living with her husband, then she shall have but one dollar; but “in the event” such daughter is then a widow, either by reason of the death of her husband or because the daughter had procured a complete divorce from him, then she shall have one-half of the estate. We see nothing unreasonable in the testatrix making one provision for her daughter in the event she has a husband bound by the marriage contract and obligations to provide for her, and to make another and more favorable provision for such daughter in the event she is a widow, without regard to what reason caused her to be a widow. We see nothing unlawful or against public policy in such provisions. - So, as far as the language of the will itself is concerned, it is not invalid.
It remains for us to examine the allegations of the petition, that the testatrix disliked and hated plaintiff’s husband and had tried to induce plaintiff to sever her marriage relations with him and, on being refused, executed this will “and flouted the same before the eyes of this plaintiff and demanded that this plaintiff get rid of her husband,” together with the will itself and see if that states a case which renders the will void. Whatever may have been said by the testatrix in that connection, there is nothing in the will itself which indicates that the testatrix contemplated that in the event plaintiff was a widow, at the time of her death, such situation would have been brought about by unlawful means. If it can be said that the testatrix contemplated that the widowhood of her daughter might be brought about by the death of her husband, there is nothing in the will to suggest that the testatrix contemplated or desired that such death would be brought about unlawfully, or result other than from natural causes. And so far as the widowhood of plaintiff, in the event she should be a widow at the time of the death of the testator, should be the result of a severance of the marriage relation of plaintiff and husband, the only severance of such relation mentioned in, the will was that it be the result of a final divorce. A divorce could result only from the judgment of a court of competent jurisdiction, and would necessarily be based upon a petition for divorce, alleging grounds recognized by statute therefor, which allegations were supported by competent evidence at a hearing in court. In other words, it was a legal separation — not an illegal one — which testatrix had in contemplation when the will was executed. It cannot well be said that a legal separation is either unlawful or against public policy.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This action was one claimed by the plaintiff to be under the statute authorizing a review and modification of an award in a compensation case.
The award in this case was made under the old law by an arbitrator for an injury received by the plaintiff on June 9, 1925. The award was for $6 per week for 107 weeks after January 24,1928, for temporary partial disability, which award would end February 14, 1930.
The action in which the arbitrator made this award was against the Edgar Zinc Company. This action at bar was commenced in the district court of Montgomery county, August 14, 1934, against the American Steel and Wire Company, and after setting forth the facts of the injury and the award, the petition states that the Edgar Zinc Company on June 25, 1928, paid the entire amount of the award into the office of the clerk of the district court, and the plaintiff accepted payment under said award with the exception of the last or final weekly payment of $6, which he refused to accept, and which amount is now held by the clerk of the district court unaccepted, and plaintiff contended before the arbitrator, and still claims, that his disability was permanent in nature and partial in character and that the award of the arbitrator was grossly inadequate.
Plaintiff alleges that it is now more than eight years since the accident which resulted in his injury, and describes in detail the suffering he endures and the disability experienced therefrom. He also alleges that prior to the expiration of eight years from the date of his injury, viz.', on January 27, 1932, the Edgar Zinc Company sold and disposed of all of its corporate assets to the American Steel & Wire Company for cash, and the holders of the common stock of the Edgar Zinc Company received approximately $110 per share and the Edgar Zinc Company was dissolved and ceased to exist. Plaintiff further alleges that the American Steel & Wire Company held approximately seventy percent of the stock in the zinc company and was paid therefor approximately $800,000 from the sale of the assets of the zinc company, and it was in actual control of the business of the zinc company at the time of the sale of the zinc company’s corporate assets. That because his disability is permanent instead of temporary, as found by the arbitrator, plaintiff claims $6 per week for 415 weeks, less the amount he has already received, and also interest on the same, amounting to something over $2,000.
To the petition are attached as exhibits the report and award of the arbitrator, a statement of amounts claimed with interest and a copy of a notice of demand made upon the steel and wire company before filing the petition.
The defendant demurred to the petition for the reason that it failed to state facts sufficient to constitute a cause of action. The trial court sustained the demurrer, and the plaintiff appeals.
The all-important question involved in this appeal is classed by the appellant as follows: Does the plaintiff have the right to proceed against the American Steel & Wire Company to collect the compensation he could have collected from the Edgar Zinc Company had it remained in business and not disposed of its assets to the American Steel & Wire Company? And it is the theory of the appellant that when a corporation goes into voluntary liquidation, such as the Edgar Zinc Company did, its assets are a trust fund to which each creditor may look for payment, and if the funds are paid out to the stockholders without regard to the creditors’ rights there is, in that event, created a personal liability between the creditor of the corporation and the stockholder to whom the funds were paid. Appellant cites one Kansas case on this point, viz., Brokerage Co. v. Dunn, 91 Kan. 64, 136 Pac. 939, and relies upon the expression contained in the opinion that the capital stock must be treated as a trust fund pledged for the payment of the debts of the corporation. In that case, however, the corporation in taking over the property expressly .assumed all the liabilities and debts of the old company. Nothing of this nature is alleged in the petition in the case at bar, except as a matter of law, which is entirely different from the liability under a definite contract. It is not here alleged that any action or claim against the Edgar Zinc Company was anywhere pending or on record that had not been fully paid by the zinc company. Neither is it alleged that any action was pending for a review or modification of the award of the arbitrator that had been made and fully paid.
Appellant cites the case of Feigenbaum v. Stables Company, 245 N. Y. 628, 157 N. E. 886, where the stockholders of a corporation that had ceased doing business divided among themselves the assets of the old company, and they were held liable to the plaintiff for injuries he had received by the negligence of the old company, he having recovered a judgment therefor against the old company prior to such division of assets. There the matter involved was the enforcement and collection of a preexisting judgment against the old company.
Here the main point to be determined, as stated in the petition, is whether the injury and disability was temporary or permanent. The petition states that the disability had been decided as being temporary, whereas it should have been found by the arbitrator to have been permanent. The New York case might have been in point if an action had been brought against the zinc company and a judgment had been obtained that the disability was permanent and later with such judgment of record the stockholders had divided the assets. This defendant is a stranger to the accident and the extent of the injury so far as the petition shows, except that it became a stockholder at some time not stated. This is not even an unliquidated debt. It has been fully liquidated and paid, but under the compensation law it is now proposed to show and prove the disability is greater than theretofore established.. We have a separate and entirely distinct procedure and rules for determining the liability in compensation matters.
In the case of Echord v. Rush, 122 Kan. 260, 251 Pac. 1112, it was held that “the remedy afforded by the workmen’s compensation law is exclusive,” and in the opinion it is said that if plaintiffs can get no relief under the compensation act they are without relief.
In the case of Roper v. Hammer, 106 Kan. 374, 187 Pac. 858, it was held:
“The remedy by arbitration provided by the workmen’s compensation act is distinct from the arbitration provided for by the general arbitration statute, is complete in itself, and is to be liberally interpreted and flexibly applied, to accomplish its peculiar purpose.” (Syl. ¶[ 3.)
No provision is cited for reaching stockholders of respondent companies in compensation matters, or reaching purchasers of the assets of respondents where there is no action pending or notice of indebtedness.
Appellant cites eminent authorities on the question of the liability of officers and stockholders of corporations for the debts of the corporation under certain circumstances and conditions and also of purchasers of the assets of debtor companies, but none of such authorities cited attempt to apply such rules to compensation matters.
The very first section of the workmen’s compensation law, R. S. 44-501, limits the liability thereunder to employers. The third section, R. S. 44-503, makes it include subcontractors. The fourth section, R. S. 44-504, refers to the “legal liability against some person other than the employer,” and allows the workman to exercise a choice, but he shall not be entitled to recover both damages and compensation.
The liability for compensation under this special law, which is complete in itself, is limited to an “employer.” There is no allegation in the petition that this defendant is now or ever was an employer of the plaintiff. The action appears to be one seeking to enforce a legal liability under the code, notwithstanding the real matter involved, as stated by the appellant, is the determination, under the special compensation provision, of the question of whether the disability was temporary or permanent. The purchaser of assets of the respondent company, the employer, or the holder of stock in such company, is not shown to be under the compensation law nor required to defend against such a claim. Such a party is not an employer and is therefore not liable.
The demurrer to the petition, we think, was properly sustained.
In the briefs of both parties reference is made to the two former decisions by this court concerning the same accident and injury, Welden v. Edgar Zino Co., 127 Kan. 870, 275 Pac. 151, and 129 Kan. 422, 283 Pac. 618, both of which cases arose on an application for a review and modification of this same award by the arbitrator and an appeal from the decision of the trial court denying the same, the last case being a rehearing on one particular branch of the earlier decision. We do not think these decisions need to be taken into consideration in passing upon the sufficiency of the petition in the present case, which is against a new defendant.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
Appellee filed a motion for rehearing. This has been duly considered and is denied.
Appellants filed a motion to modify„the mandate so as to direct judgment for defendants in the trial court instead of directing a new trial. They call our attention to the fact that in the opinion as written we did not give sufficient attention to their demurrer to plaintiff’s evidence. They also contend that under the opinion as written, and under the evidence as shown in the abstract, there is nothing left to try. Appellee has answered this motion. The court has considered all the parties have said about it, and has concluded the motion should be sustained. It is not necessary to restate the facts any further than to point out that plaintiff predicated his action on the alleged individual wrongdoing of defendants as distinct from their official misconduct. His evidence as to what took place when he presented his check for payment was set out in full, as abstracted, in the opinion written. A careful review of that discloses that all defendants did in respect to that matter was done in their respective capacities as officers of the bank, and whatever wrong was done was a corporate wrong as distinct from an individual one. That being the case, it is no kindness to anyone to require a new trial.
It is therefore ordered and adjudged that the mandate be modified so as to direct the trial court to enter judgment for defendants.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on certain promissory notes, the defense being that the notes were procured through fraud and misrepresentation. Defendants prevailed, and plaintiff appeals.
The facts are substantially these: The plaintiff is a lawyer and broker in commercial paper in Iowa City, Iowa. The Brenard Manufacturing Company, from whom plaintiff claimed to have purchased the notes, deals in radio appliances, and is located in Iowa City. The defendants operate a drug store in the west part of the business district of Wichita. On December 8, 1926, one Avery, representing the Brenard Manufacturing Company, called at the defendants’ place of business about three or four o’clock in the afternoon. The defendant Neil only was there. Avery said that he had established an agency for the sale of his radios on the east side, was establishing one in the center of town and now desired to establish one on the west side; that the radios were to be handled upon a consignment basis and that no money need be put into the proposition by the defendants. Neil asked to see the contract. Avery said that he had left it on the east side where he had established an agency and was unable to produce it. Defendant Cole then came in and Neil went to supper. Avery made practically the same representations and statements to Cole. Cole was busy waiting on trade and suggested to Avery that he be given until the following morning in which to make an answer to his proposition. Avery said that he wished to leave for Winfield early in the morning and that if Cole would agree to take the agency that evening he would pay the freight on the radios to Wichita. Avery produced his contract, which he had told Neil he did not have, and assumed to read portions of it to Cole while the latter was waiting on trade. Cole was prevented from reading the contract because of interruptions of customers and the willingness of Avery to read and explain it to him. Avery misread the proposition. As read by him it sounded good to Cole, who signed it. Avery then unfolded it and disclosed six additional places to sign. The places for signature appeared to be on notes. Cole suggested that he was being asked to sign notes. Avery stated that they were not notes and explained that the amount of each instrument corresponded with the prices of the radios; that the dates on the notes were blank; that each note was to be dated, marked “Paid” and returned to the signers as the corresponding radio was sold and the purchase price, minus commission, sent to the company, and that these instruments were to be given solely for the protection of the company in the event the firm became insolvent or suffered loss by fire. Upon these representations Cole signed in the places directed.
The contract and notes were made up on one paper and were separated by delicately perforated lines. Avery said the instrument was to be kept entire and each note detached as the corresponding radio was sold and returned to the defendants marked “Paid.” On December 14, 1926, the defendants received a letter from the company, dated December 10, inclosing copy of, the contract. The purported notes had been dated with the-date of the contract and the words of one note, “one month after date” changed to “seven months after date.” Upon inspection of the contract, the defendants found that instead of it being merely a consignment contract it was an order for goods for which they promised to pay. They immediately wired the Brenard Company, attempting to cancel the contract and saying not to ship the radios. The wire was confirmed by registered letter. Both were received by the company before shipment was made. The company nevertheless shipped the radios. When they arrived the defendants refused to. take them and had them shipped back to the company.
It was shown that the plaintiff had previously purchased from the same company considerable amounts of similar paper. He had experienced trouble in the collection of some such notes and his deposition had been taken in a number of cases. The notes in the instant case were claimed to have been purchased by him January 24, 1927. The plaintiff knew at the time he purchased them that they had been detached from the form of contract used by the company in their business of selling radios. A method of collection of such notes, in accordance with an' agreement between the plaintiff and the Brenard Company was followed, whereby legal services and other expenses were borne by the company. A special fund was kept by the plaintiff in a bank with which to make purchases of Brenard company paper. Quantities of such notes were brought to the office of the plaintiff at regular intervals. He would go through the form of making a purchase and would write a check upon his special fund for-the required amount. He would not again see the notes unless his deposition would be required as in the instant case. He paid no attention to their collection. That matter was attended to by an attorney in the employ of the Brenard company. This attorney had his office in the headquarters building of the Brenard company.
Trial was to the court, which found, among other things, that the original notes were procured by fraud and that the plaintiff was not a holder in due course. We are of the opinion that the evidence adduced, part of which has been noted, was abundantly sufficient to warrant the findings that' the notes were procured by fraud and misrepresentation and that the plaintiff was not a holder in due course.
Stevens v. Barnes, 43 N. Dak. 483, 175 N. W. 709, 18 A. L. R. 10, is in some respects a similar “detached” note case, arising out of a transaction originating at Iowa City, in which the question of fraud was considered. The court said:
“Assuming-the testimony of Mrs. Wrede [one of the defendants] as contained in the stipulation as binding under the stipulation upon the parties, we will examine the evidence which it is stipulated she would give, and determine therefrom if it proves or tends to prove actual fraud. Her evidence in this regard is wholly undisputed and must be accepted as true. According to her testimony as stipulated, Acker, the agent of the plaintiff, stated to this witness and her partner that said instruments, taken together, constituted an order for goods, and did not constitute a note, but that the second proof of said instrument, now marked ‘exhibit A,’ which was attached to exhibit B was to represent merely the manner in which the goods or payment for the goods should mature.
“If those statements and representations were made by Acker, as the testimony of Mrs. Wrede as stipulated shows, such statements were, under the statute, false and fraudulent representations. Acker must have known that exhibit A which was attached to exhibit B was not merely to represent the manner or maturity of payment. He knew that exhibit A constituted a note; he knew that the instruments, taken together, did not constitute an order for goods only, but did constitute an order for goods plus a note. His representations were such, then, as to induce the defendants to believe that the instrument or instruments did not constitute a note, and that there was no note involved in the transaction; his conduct was such as was well fitted to deceive the defendants; his representations were of such character' as to amount to the suggestion of a fact of that which is not true. ... In other words, he must have had full knowledge of the intent and purpose of the whole contract, both exhibits A and B, and, in view of the representations to which it is stipulated Mrs. Wi'ede would testify, he must have suppressed the true condition and intent and purpose of both exhibits A and B.
“It appears from the stipulation above set forth that prior to the execution of the instrument in suit, the Donald-Richards Company, through one of its agents, had sold to J. I. Rue, a merchant in Enderlin, North Dakota, goods, wares, and merchandise of the same nature and composition as the articles sold defendants.
“This evidence as stipulated supports the allegation of the answer which, in substance, avers that Acker, the agent of the Donald-Richards Company, represented to the defendants that said company sold goods to but one customer or firm in each city, and that defendants would have the exclusive sale of said line of goods in the city of Enderlin; that said representations were false, fraudulent, and untrue, and relied upon by the defendants; and that they were induced thereby to execute the order for said goods.” (p. 489.)
In Stevens v. Venema, 202 Mich. 232, 168 N. W. 531, L. R. A. 1918F, 1145, the court said:
“Plaintiff testified that he was a practicing attorney interested in banking and investments, had lived in Iowa City twenty years, and had known the Donald-Richards Company for five years or more; that he had taken many thousand dollars of its paper since February, 1915; knew there was some litigation over collection of the paper it had taken from its various customers, and had given depositions similar to those he was then giving twenty or twenty-five times since February, 1915; that he bought the note in question, which was delivered to him by Taylor on May 31, 1916, prior to which time he knew of no defense or claim defendant might have against the Donald-Richards Company, and he had exercised his option in declaring all remaining installments due; that the note bore evidence of having been detached from some other paper, but Mr. Taylor did not show him the contract between defendant and the company, and did not know whether the latter had fulfilled on its part. In Stevens v. Pearson, supra, decided by the supreme court of Minnesota, July 20, 1917, in which plaintiff’s depositions are stated to have been taken October 3, 1916, about a month before this suit was begun, his knowledge of and relations with the Donald-Richards Company are taken note of and discussed. We are well satisfied in this case, as there held, that ‘the evidence presents facts abundantly to put plaintiff on inquiry and charge him with notice of the fraud perpetrated upon defendant.’ ” (p. 533. See, also, Stevens v. Keegan, 114 Kan. 796, 220 Pac. 1050; Manufacturing Co. v. Scranton, 116 Kan. 93, 225 Pac. 731; Stevens v. Pearson, 138 Minn. 72, 163 N. W. 769; Harrison v. Grier, 198 Mich. 672, 165 N. W. 854; Loveland v. Bump, 198 Mich. 564, 165 N. W. 855; Pratt v. Duncan, 204 Mich. 632, 171 N. W. 337.)
What has been said covers plaintiff’s various assignments of error, so that additional comment is unnecessary.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages predicated upon the alleged wrongful acts of defendants in refusing to permit the teller of a bank on which it was drawn to pay plaintiff’s check, he having to his credit in a checking account the amount of his check. The case was here before (140 Kan. 637, 37 P. 2d 988), where the court-held the petition states a cause of action as against a general demurrer. After that decision an answer and reply were filed. There was a trial by a jury, which answered special questions and returned a verdict for plaintiff. Defendants have appealed.
The bank was not sued. Persons who were officers of the bank were sued as individuals for their alleged individual, as distinct from official, wrongdoing, causing loss to plaintiff.
Shortly stated, plaintiff in his petition alleged that on May 2, 1931, the Montgomery County National Bank of Cherryvale was an open, going banking institution, receiving deposits, paying checks (except plaintiff’s), and transacting a general banking business in the usual and ordinary manner; that defendants were officers or directors of the bank, and the position of each is described; that they were present at the bank and in charge of its business; that by reason of deposits previously made by him in the bank he had a credit in his checking account of $1,977.04; that within banking hours the afternoon of that day he went into the bank and presented his check, properly drawn on the bank, for' that amount, to the paying teller for payment; that she started to pay the check when one of the defendants interfered with her, took the check, conferred with the other defendants, with the result that the teller was not permitted to pay the check, and payment was refused. The petition sets out the acts and conduct of the respective defendants in great detail, which we need not repeat here since they are quite fully stated in our former opinion. It is further alleged that the bank had currency and coin sufficient to pay the check, and that defendants, severally, jointly, and in conspiracy with each other, wrongfully prevented the payment of the check, to plaintiff’s damage in a sum named. The petition contained a second cause of action for damages for loss of time, attorneys’ fees and exemplary damages, predicated on the alleged willful, fraudulent and malicious misconduct of defendants.
The answer admitted defendants were officers of the bank, as alleged, and that plaintiff had a credit in his checking account at the bank to the amount alleged, and in effect admitted plaintiff had presented his check and that it was not paid. It alleged the bank had been having financial difficulties; that for more than a week prior to the date the check was presented a national bank examiner had been at the bank making an examination of its affairs under the authority of the federal banking department; that he had discovered irregularities of one Dillman, who had been president of the bank prior to May 2, 1931, and had determined and advised defendants that the affairs of the bank must be put in better condition and that certain notes- must be collected or better secured if the bank was to continue in business, and that he directed the deposits of that day be segregated as received from other assets. It is further alleged that defendants were endeavoring to comply with these requirements, and on the day in question conducted the affairs of the bank under the direction of the bank examiner; that when plaintiff’s check was presented, late in the afternoon, there was not sufficient money then on hand to pay it; that defendants referred the question of its payment to the bank examiner, who directed them not to pay it; that the bank was in fact insolvent at that time, although defendants were still endeavoring to restore its solvency; that defendants informed plaintiff the bank was unable to pay the check, and that they acted in good faith in so doing, and denied generally allegations of the petition not admitted by the answer.
The reply was a general denial, with the plea the bank examiner had no authority to direct the affairs of the bank, such authority being vested in defendants, who were its officers and directors.
The evidence may be summarized as follows: The bank had been having some financial difficulties for a time. Apparently that had become known to some extent, for between April 17 and May 2 about $18,000 of deposits had been withdrawn. On April 27 a national bank examiner, P. V. Miller, and an assistant, began an examination of the bank. Miller continued at this work up to and including May 2. The bank did not open for business after that date. Later a receiver was appqinted, who closed up its affairs. The bank examiner discovered shortages, and asked for the resignation of W. L. Dillman as president. He resigned the last of April, and LaRue C. Wilkes was elected president. Miller continued to examine the financial affairs of the bank, the value of its assets, and the security for its notes, and to advise the bank officials what should be done. The morning of May 2 he suggested to Wilkes that the deposits of that day be kept segregated from other assets of the bank, and that was done until after closing time. Throughout the day, when a customer made a deposit, a teller would enter the amount of the deposit in his pass book or give him a duplicate deposit slip, as was customary for an ordinary deposit, but the money or checks deposited would be placed on the counter and left there. The amount of the deposit was not posted in the bank’s books, nor was the money or other items deposited mingled with other money or items of the bank. The total deposits that day amounted to $4,718.37, none of which was paid out by the bank to anyone. Of the amount deposited $2,566.89 was in checks on other banks; the balance was in cash. After the closing time of the bank that day the employees posted the deposits of that day and placed the money and checks deposited in the safe. This was later turned over to the receiver-. The morning of May 2 the cashier, Shanton, told one of the directors, Carson, the bank could not run through the day without some money. Carson went to Independence and got about $3,000 in cash for the bank’s use. The bank began business that morning with $3,169.94 actual cash on hand, of which only about $370 was on hand when the bank closed business for the day. When plaintiff presented his check to Miss Hoffman, the teller, for payment she testified she picked up money and started to count it to pay the check, and found she did not have enough to pay it. She stepped a few feet to another employee, who had worked longer in the bank, told her the situation, and asked what to do, and was referred to the cashier, Shanton, who had just come into the room. Shanton took the check and began talking to plaintiff. Miss Hoffman did not pay the check, nor did she see it again, nor did she have any further talk with plaintiff.
The afternoon of May 2 plaintiff met Dillman on the street and talked with him a few minutes. He then went to the bank and asked Miss Hoffman what his account was. She looked it up and told him. He asked her to write a check for him for the amount; she did so; he signed it, and handed it to her for payment. We quote his testimony as to what took place in the bank, as shown by the abstract:
“Miss Hoffman counted out quite a bunch of money and took the check and stepped over to Miss Conrad. . . . She said something which I did not hear. She then started to the south door and Mr. Shanton stepped into the room. He took the check with him and went to the rear part of the bank. . . . Mr. Shanton came back in about five minutes and came to see me. I was outside of the counter in the lobby. He had my check in his hand. He wanted to know why I was checking my money out. I told him I had a little deal on and my father was not expected to live and I had to have that money. He said, ‘Your money is worth one hundred cents on the dollar. This bank is backed by the Federal Reserve Bank at Kansas City, Mo. I told him that did not make any difference to me, I wanted my money and had to have it and demanded it. He broke down in a half cry and said, ‘Dillman has fetched this on, hasn’t he?’ I says, ‘No, sir, he has not. . . .’ We stood there and talked and Mr. Wilkes came out. Mr. Wilkes said, ‘Huffman, what is wrong, why do you want your money out?’ I told him about the same thing I told Mr. Shanton.' Mr. Wilkes said, ‘This bank is a member of the Federal Reserve, your money is worth one hundred cents on the dollar. While we admit we have loaned a little bit close, the bank is absolutely all right.’ I said to him, ‘Mr. Wilkes, I demand my money and I want it.’ . . . He assured me that the bank was absolutely all right. He said he would see what he could do for me and let me know. . . . Mr. Wilkes came back and said, T will see what I can do for you and let you know in a little bit.’ Mr. Wilkes went to the rear of the bank again. I went out of the bank a little bit, not to exceed five minutes. When I came back to the bank, I saw Mr. Shanton, Mr. Carson and Doctor Gasser. Carson was in the back room and there was a stranger came out about that time with a brief case in his hand. I never saw that man afterward. I still demanded my money and Gasser wanted to know why I wanted it. He said he had more money in the bank than I had, that the bank was absolutely all right and my money was worth one hundred cents on the dollar. I demanded my money the same as I did before. ... I saw all the defendants' in there and talked with them. I talked with Wilkes, Gasser and Shanton. The last talk I had in the bank with Mr. Wilkes, he told me he had twenty-five hundred dollars at Independence and he would pay that check the first thing Monday morning, it was impossible for him to pay me that day. I still demanded my money. Mr. Carson did not talk that I recall. The others did the talking. Mr. Shanton told me it was time to go and I had to leave. That was about 3:15 or 3:20. Mr. Shanton had my check in his hand the biggest part of the time. After they told me it was impossible for them to pay me before Monday morning, I tore the check up and threw it in the waste basket. . . .”
On cross-examination he was asked: “How many times did Mr. Wilkes tell you, ‘Ed, we haven’t got the money to cash your check,’ ” to which he answered: “I did not count them. He told me á number of times.”
There is evidence tending to show that defendants conferred with the bank examiner about the check and were advised by him not to pay it. The evidence is not specific as to the time that day deposits were made or checks cashed except that only a few deposits were made in the afternoon, and there is no evidence that any check was cashed after plaintiff presented his check for payment.
The testimony of defendants as to what took place while plaintiff was in the bank conflicts with his testimony as to the assurances he says they gave him that the bank was sound, but we pass this, since it was the function of the jury and the trial court to weigh the evidence. For the same reason there is no purpose in pointing out conflicts between the testimony of plaintiff and that of the defendants on other matters. They agree with him that they told him his check could not be paid because the bank did not have the money. There is no testimony that defendants used any physical violence toward plaintiff, or that they made any threats, or used any duress. Neither is there any evidence that defendants gained any financial advantage to themselves personally by the refusal of the bank to pay the check.
The bank examiner, Miller, was asked what value he assigned to the assets of the bank as compared with its liabilities, as he learned of them from his examination of the bank. He answered that he could not give the definite figure without referring to his report, “but the capital was practically wiped out.” He was asked what he meant by that statement, and answered: “Well, the value of the assets were insufficient to practically absorb the liabilities.”
The evening of May 2, which was a Saturday, one of the defendant directors of the bank approached R. H. Shaw, the vice-president and active manager for ten years of the Peoples State Bank at Cherryvale, told him something of the condition of the Montgomery County National Bank, and said it was the wish of the board of directors that the bank be taken over, or merged, or its assets purchased by the Peoples State Bank. By appointment the matter was gone over the next day. Shaw examined the notes owned by the bank, the securities for them, made inquiry of the financial standing of the makers, and also examined the liabilities of the bank. It was his opinion that the assets of the bank unpledged to secure the indebtedness of the bank at Kansas City were not enough “to anyways near take care of the deposit liability.”
After a receiver was appointed for the Montgomery County National Bank one of the defendants went with plaintiff to the receiver, and together they explained to the receiver that plaintiff had presented his check for payment before the close of business May 2 and what .took place on that occasion, and asked the receiver to consider a preferred claim for plaintiff. The recéiver expressed his view that plaintiff had no grounds for a preferred claim. Plaintiff then filed a claim with the receiver as a common creditor, and later received dividends aggregating 14.63 percent of his claim, the same as all other common creditors of the bank.
This action was filed March 11, 1933. By the jury’s verdict plaintiff received judgment on his first cause of action for $2,116.63, being the amount of the check he sought to have cashed, plus interest, less dividends he had received on his claim filed with the re ceiver, and $500 on his second cause, the same having been allowed by the jury for attorneys’ fees. The jury specifically refused to allow plaintiff anything for loss of time, or for exemplary damages.
Turning now to the legal questions argued by counsel. We first note this is not an action against the bank as are some of the cases (Kleopfer v. Bank, 65 Kan. 774 70 Pac. 880; Meinhart v. Farmers State Bank, 124 Kan. 333, 259 Pac. 698) cited and relied upon by plaintiff. It is well established in this state and elsewhere that the relation between the bank and its ordinary depositors is that of debtor and creditor, hence, the correct viewpoint is that by reason of deposits plaintiff had previously made the bank was indebted to him in the amount of the balance shown by his checking account. It is presumed, of course, to be able to pay its debts to depositors on demand. When plaintiff presented his check to the bank, and payment was refused, plaintiff immediately had a cause of action against the bank for the amount of his deposit. Plaintiff pursued that method of recovery, not by bringing an action against the bank, but by presenting his claim as a common creditor to the receiver, and was paid his prorata share of his claim, as were other creditors in his class, being all the bank was financially able to pay; hence these authorities are of no aid to plaintiff in this case. Neither is this an action against the directors because of any statutory liability, as Ramsey Petroleum Co. v. Adams, 119 Kan. 844, 241 Pac. 433, cited by appellee. Defendants in that case were directors of a state bank, and the action was predicated upon state statutes (R. S. 9-163, 9-164) which make the directors, under certain circumstances, personally liable to depositors for receiving deposits when the bank is insolvent. Here the bank in question was a national bank. The state statute relied upon in the Ramsey case has no application to it, and the action is not one to recover a deposit made while the bank was insolvent. We need not stop to consider whether there is a federal statute which, under any circumstances, imposes personal liability on officers and directors of national banks, for if such statutes exist the plaintiff did not predicate his action thereon. No reference to such a statute is made at any place in the record or briefs in this case.
The action is founded in tort against defendants personally, not as officers or directors of the bank, for damages for their alleged personal wrongdoing which resulted in the bank’s refusal to pay plaintiff’s check during the business hours of May 2 and before the bank was closed as a going concern.
The real question in the case is whether what defendants did, as shown by the evidence, was in their capacity as officials of the bank, or whether it was a personal wrongful interference with plaintiff’s business in such a way as to make them personally liable..
It is true, as contended by appellee, that national bank examiners are not officers or agents of the banks which they are examining and cannot bind such banks by acts, in their official character as examiners. (Witters v. Sowles, 32 Fed. 762; Tecumseh Nat. Bank v. Chamberlain Banking House, 63 Neb. 163, 88 N. W. 186; Carlton v. First Nat. Bank, 80 Ore. 539, 157 Pac. 809.)
However,.the continued existence of a national bank may depend upon its compliance with suggestions or requirements made by the bank examiner to its officers and directors (12 U. S. C. A., § 501a). This is a matter which defendants as officers and directors of the bank were entitled to take into consideration in conducting the affairs of the bank on the day in question.
Appellants complain, with some reason, that the trial court, in interpreting the former decision of this court in this case, gave to the decision too wide a scope. In overruling the demurrer to the evidence the court indicated that defendants had no defense to the first cause of action, and something of the same thought seems to pervade the instructions given. At our former decision the court had before it only plaintiff’s petition and defendants’ demurrer thereto. The petition alleged in detail the acts of defendants and was prolific in its characterization of them as being wrongful. Defendants had demurred to the petition, thereby admitting, for the purpose of obtaining a ruling on the demurrer, the facts pleaded in the petition. The petition contained no allegation that the bank was insolvent, or that its financial condition was such that acts of insolvency, or in contemplation of insolvency, had been performed, but on the other hand had alleged that it was a going banking concern, transacting all kinds of banking business in the usual course ' (except as it refused payment on plaintiff’s check). Defendants in this court argued that the bank was insolvent and in serious financial distress. This court gave no heed to that argument, and held defendants were not then in position to urge it (140 Kan. 641). However, it did not close the door so as to prohibit the consideration of that question on the trial of the case. In the opinion it was said:
“It may be that when an answer is filed and the evidence is produced a different case will be established than was alleged in the petition. . . (p. 642.)
Clearly, the decision was predicated upon the view that the petition alleged the bank to be a solvent, going concern. To the extent the trial court interpreted the former decision of this court in this case as precluding or in any way limiting a defense predicated upon the insolvency of the bank because of acts of insolvency, or in contemplation of insolvency, the interpretation was erroneous.
Quite a little is said in the briefs about the segregation of deposits made May 2. We know of no statute providing for such segregation. Ordinarily, at least, the question whether a deposit is general or special is determined at the time the deposit is made. This accords with the court’s instructions on that point. Here the deposits were made — certainly so far as the depositors were concerned — in the ordinary manner deposits are made by customers having checking accounts at the bank and for the purpose of having credit in such accounts. They were general deposits. The fact that the bank officials kept the deposits on a desk separate from other assets of the bank until after closing time, and then entered the deposits on their books and placed them in the safe, does not change that situation. It is not especially unusual, however, when a bank is being investigated as to its solvency, and it is doubtful if it is solvent, and its officers desire further time to consider the solvency of the bank, and perhaps to raise funds which would insure its solvency, for deposits received to be segregated much as they were in this instance. Perhaps two ideas prompt such action. The officers may think it would aid their defense if they were prosecuted later for receiving such deposits when the bank was insolvent, and knowing it to be such; and, second, there are circumstances somewhat allied to this in which deposits made have been declared trust funds and the depositors entitled to preferred claims, even though there was no definite understanding to that effect between the depositor and the bank officials at the time the deposit was made. We regard what was done with reference to segregating deposits in this case as having no bearing on the rights of the parties, except to the extent that it shows an act of insolvency, or in contemplation thereof, and its bearing on the good faith of the bank officials in conducting the affairs of the bank.
Appellants complain of the refusal of the trial court to give instructions requested and of instructions given. They called the attention of the court to the federal statute, 12 U. S. C. A. § 91, which reads:
“All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction or execution shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any state, county, or municipal court. (R. S. § 5242.)”
They asked the court to give instructions defining “an act of insolvency, or in contemplation thereof,” as used in the statute, and setting forth the duties of defendants as directors of the bank in such a situation. The court refused to give such instructions, but on the other hand told the jury in substance that if the bank was open and doing business with the public it was its duty to pay the checks (large or small) of the depositors, if properly made out and duly presented, and that their intentional refusal to do so constituted willful negligence and rendered each of them personally liable in the full amount of the check; and further instructed that if defendants, as directors of the bank, feared that the payment of plaintiff’s check at the time it was presented, May 2, 1931, would imperil the solvency of the bank, such fear is not a defense to either cause of action stated in plaintiff’s petition.
These rulings were erroneous. The court should have instructed the jury as to what constitutes acts of insolvency, or in contemplation thereof, as those terms are used in the federal statute cited, and as defined by the federal courts. (See: McDonald, Receiver, v. Chemical Nat’l Bank, 174 U. S. 610; Irons v. Manufacturers’ Nat. Bank (6 Biss. 301), 13 Fed. Cas. 7068; Roberts v. Hill, 24 Fed. 571; Ball v. German Bank, 187 Fed. 750; Browne v. Stronach, 7 F. 2d 685; Federal Intermediate Credit Bank v. L’Herisson, 33 F. 2d 841; Federal Reserve Bank v. Omaha Nat. Bank, 45 F. 2d 511; First Nat. Bank of Ortonville, Minn., v. Andersen, 57 F. 2d 17; Smith v. Baldwin, 69 F. 2d 390; Aycock v. Bradbury, 77 F. 2d 14; Pearson v. Dwell, 77 F. 2d 465; Aufderheide v. Mine Safety Appliance Co., 9 F. Supp. 918.)
There is much in the evidence which, under appropriate instructions, would have justified the jury in finding acts of insolvency, or in contemplation thereof, as those terms are used in the federal statute, and as defined by the decisions, of which the above list makes no pretense of being complete — the heavy withdrawal of deposits in the two previous weeks; the discovery of shortages by the bank examiner; the requested resignation of the president; the strenuous efforts to get money for business May 2, details of which have’ not been stated; the segregation of deposits for the day, with the possibility they ultimately would be held to be special deposits; the examiner’s conclusion the capital of the bank was wiped out and its assets practically'insufficient to pay its liabilities; the refusal to pay plaintiff’s check, under the circumstances, and’ the fact that no check of a depositor was paid thereafter, were all matters the jury would have been justified in taking into consideration in determining those questions.
The fact that the officers of the bank still entertained some faint hope that the bank was solvent, or might be made solvent, and made statements to plaintiff that the bank was sound, would not be sufficient to defeat the real and -necessary effect of their acts of insolvency, or in contemplation thereof. Such hopes and statements are discussed in some of the cases above cited and passed over as being ineffectual. More than that, in this case they had no influence upon plaintiff; notwithstanding them, he still demanded his money. If the payment of plaintiff’s check for the full amount of his deposit, under the circumstances, would havé permitted him to have a preference in the distribution of the assets of the bank under a receivership, it was the duty of defendants, as officers of the bank, to- refuse payment, even though the bank had money on hand with which to make it, and had the payment been made under such circumstances the receiver could have recovered it from the plaintiff in an action therefor. This is specifically ruled in the Aycock and Pearson cases, above cited. It is true this statute has been held not to apply to the cashing of checks and withdrawal of deposits in ordinary course of business, but where the amount and the circumstances of the withdrawal and the effect of the withdrawal would be to give a preference over other creditors of the bank, and certainly if the evidence discloses that such was the intention of the party withdrawing the money, the cashing of the check would be a void transaction. There is evidence here from which the jury might have found that situation to exist. The instructions of the court should have been framed so as to. present those matters to the jury. The fact this was not done, in view of defendants’ request, requires a reversal of the judgment of the trial court.
Our own decision dealing with this federal statute (Bodley v. Bowman, 131 Kan. 741, 293 Pac. 740) is in harmony with the federal decisions.
The retrial of this case also should take into account the rule that officials of a corporation, in transacting its business, are presumed to act for and on behalf of the corporation rather than in their individual capacities, and that ordinarily any liability to third parties which arises by reason of such acts is the liability of the corporation and not the individual liability of the officers. (Beeler & Campbell Supply Co. v. Riling, 132 Kan. 499, 296 Pac. 365; Noll v. Boyle, 140 Kan. 252, 36 P. 2d 330; Lathrop v. Hall, 141 Kan. 909, 44 P. 2d 201.)
Appellants make a specific complaint of the judgment in favor of plaintiff for $500 for attorneys’ fees on the second cause of action. The jury specifically found plaintiff was not entitled to recover anything for exemplary damages. The evidence sustains that view. The result is plaintiff has been allowed an attorneys’ fee in a common-law action' for tort. This cannot be permitted to stand. The retrial of this case should be on the first cause of action only.
The judgment of the court below is reversed with directions to set aside the judgment for $500 attorneys’ fee, and to grant a new trial in harmony with the views herein expressed on the first cause of action only.
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The opinion of the court was delivered by
Wedell, J.:
This was an action in replevin. Plaintiff prevailed, and defendant appeals.
Appellee insists the appeal is not in time and must be dismissed. If this contention is sound it of course ends the lawsuit. The cause was tried on the 9th day of November, 1933. The trial court announced its decision on November 24. What transpired on those dates reads:
“Thereupon, plaintiff introduces its evidence, and rests. And the defendant introduces his evidence in support of his answer to the plaintiff’s bill of particulars, and rests. And thereupon, plaintiff demurs to the evidence introduced by defendant, and the court, after being fully advised in the premises and after hearing the argument of counsel, and upon the 24th day of November, 1933, finds that the plaintiff’s demurrer should be sustained; that the allegations contained in plaintiff’s bill of particulars are true; that the plaintiff is entitled to the relief prayed for and is the owner of and entitled to the possession of the said automobile involved herein.”
Appellant filed a motion for new trial on November 25. The pertinent portion thereof reads:
“Comes now the defendant and moves the court to set aside the judgment rendered in this case on November 24, 1933, and to grant a new trial of the issues joined herein for the following reasons.”
Appellant’s notice of appeal reads:
“You will take, notice that the defendant intends to and does hereby appeal to the supreme court of Kansas from all the judgments, rulings and orders of the district court in this case, and particularly from the judgment rendered in this case in favor of the plaintiff on November 24, 1933, and the further judgment of the court on December 29, 1933, in overruling the defendant’s motion for a new trial."
The appeal was perfected June 28, 1934. The portion of R. S. 60-3309 applicable here provides:
“The appeal shall be perfected within six months from the date of the rendition of the judgment or order appealed from.”
The appeal was perfected seven months and four days after the ruling of the trial court sustaining the demurrer to defendant’s evidence. The appeal from, that ruling was clearly too late. (Greiner v. Greiner, 130 Kan. 333, 286 Pac. 219.) A demurrer to the evidence presents a pure question of law. A motion for ne.w trial is neither necessary nor proper where a demurrer is sustained to the evidence. (White v. Railway Co., 74 Kan. 778, 88 Pac. 54; Schu bach v. Hammer, 117 Kan. 615, 232 Pac. 1041; El Dorado Refining Co. v. Songer, 139 Kan. 329, 31 P. 2d 57.) The fact a motion for new trial is filed will not enlarge the time for such appeal. (White v. Railway Co., supra; Van Tuyl v. Morrow, 77 Kan. 849, 92 Pac. 303; Bowen v. Wilson, 93 Kan. 351, 144 Pac. 251; Sheahan v. Kansas City, 102 Kan. 252, 169 Pac. 957.)
Appellant insists that final judgment was not rendered until December 29, 1933. That is the date on which the motion for new trial was overruled. The journal entry, being the final record of judgment, covered the ruling on the motion for new trial and also sustained plaintiff’s demurrer to defendant’s evidence. The ruling of the trial court on November 24, 1933, was an appealable order. It was so regarded by appellant. Hence appellant was in no wise misled. This fact is clearly indicated by the motion for a new trial, which he filed the next day. While the motion for new-trial, as previously stated, was neither necessary nor proper, it clearly appears appellant regarded the ruling of November 24 as a judgment sustaining the demurrer to his evidence. His motion for new trial expressly refers to it as a judgment. His present contention that the language contained in the journal entry, to wit: “Plaintiff’s demurrer should be sustained,” became operative only on final judgment, is not well taken. Furthermore, the notice of appeal clearly shows upon its face that he appealed “from all the judgments, rulings and orders of the district court in this case, and particularly from the judgment rendered in this case in favor of plaintiff on November 24,1933.”
Appellant’s contention that the time for perfecting his appeal is measured from the date of final judgment is erroneous. An order sustaining or overruling a demurrer to evidence is an appealable order. (Israel v. Lawrence, 126 Kan. 586, 270 Pac. 602.) The ruling on November 24 was an order sustaining the demurrer and was so treated by appellant. The time within which to perfect an appeal dated from November 24. In the case of White v. Railway, 74 Kan. 778, 88 Pac. 54, it was held:
“A ruling sustaining a demurrer to evidence is an appealable order; that is, one which may be reviewed by independent proceedings in error begun immediately, without waiting for a final judgment to be rendered.
“Where a demurrer to evidence is sustained a motion for a new trial is neither necessary nor proper, and the fact that such a motion is filed will not enlarge the time within which a case may be made upon which to review the ruling on the demurrer,” (Syl. ¶¶ 1,2. Italics ours.)
In the case of Norman v. Railway Co., 101 Kan. 678, 168 Pac. 830, the question of appeal involved an intermediate appealable order. This court said:
“Defendant challenges the court’s jurisdiction to review the question presented touching the matter stricken from the petition for the reason that more than six months elapsed after the ruling of the trial court before an appeal was taken. The code gives an appeal from any order of the district court ‘that involves the merits of an action, or some part thereof.’ (Civ. Code, § 565.) An order to strike out certain parts of a petition is equivalent to sustaining a demurrer thereto. If the matter stricken out involved the merits of the action or some part thereof, the order to strike out was certainly an intermediate appealable order. (Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039.) The plaintiff’s petition without the matter stricken out either did or did not state a cause of action. If without the stricken-matter the petition did not state a cause of action, the plaintiff should have appealed within six months, for the all-important reason that this court’s jurisdiction is limited to appeals taken within that time. (Civ. Code, §572.)” (p. 680.)
In the more recent case of Greiner v. Greiner, supra, the rule was stated thus:
“When defendant’s testimony was concluded plaintiff filed a demurrer thereto, which was overruled. At the close of all the testimony the case was submitted to the jury with instructions, and upon the evidence and instructions of the court the jury found in favor of the defendant.
“One complaint is that the court erred in overruling plaintiff’s demurrer to defendant’s evidence. This ruling was an appealable order, but it was not brought here within the six-months period, and therefore the right to obtain a review of that ruling is lost.” (p. 334.)
The appeal in the instant case must be dismissed. It is so ordered.
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff seeks to recover from the defendants damages for injuries sustained by him in an automobile collision. Judgment was rendered in favor of the plaintiff, and the defendants appeal.
There was evidence which tended to prove that the Salvation Army of Wichita is a corporation, organized under the laws of the state of Illinois; that the Salvation Army is engaged in religious, charitable and philanthropic work in the city of Wichita; that in its operations it conducts a store, to which old clothing, books, papers and magazines given to the Salvation Army for distribution among the poor and-needy are taken for such distribution; that at the store much of the goods thus collected is given away, but a part of it is sold at a nominal price to those who desire to pay all or a portion of the value of the goods received; that the money received is used by the Salvation Army in furtherance of its religious, charitable and philanthropic work; that in gathering the goods to be distributed from this store the Salvation Army operated a truck; that the truck was driven by the defendant, L. H. Vought; that it was being operated on a paved road west of Wichita, and through the negligence •of L. H. Vought a collision occurred between the truck and another truck or automobile in which the plaintiff was riding, the guest of the driver, and that the plaintiff sustained severe injuries in that collision.
It is argued that the Salvation Army, being a religious, charitable and philanthropic organization doing work of that nature, is not liable for the negligence of Vought whereby injury was sustained by the plaintiff. The liability of charitable organizations for injuries caused by the negligence of agents or employees working in or for such organizations has often been presented to the courts of this country. The decisions are in hopeless confusion and irreconcilable conflict. A clear statement of this condition is found in Geiger v. Simpson M. E. Church, 174 Minn. 389, 392, as follows:
“Coming to the specific question of the exemption of charitable organizations or institutions from liability for negligence of their officers and servants, we find a great diversity of reasoning and adjudication in the numerous decisions in various states. One line of cases holds that these organizations are wholly exempt from liability for such negligence. Another line of cases, apparently the greater in number, holds that these organizations are exempt from such liability to persons who are recipients of their charity or service, who are beneficiaries of the work carried on by the organization. Many of these cases hold that the organization is liable to third persons, who are not beneficiaries, and to its own hired servants and employees on the same basis as private individuals and business corporations. Some cases hold that hospitals and colleges are liable to patients or students who pay full consideration for their treatment or tuition. Others hold that the fact that payment is so received does not make them liable. In many cases it is stated that such institutions may be held liable for failure to exercise proper care in the selection of officers and servants, and may be held liable for negligently employing incompetent officers and servants, when injury results therefrom.
“Different courts give different reasons for the exemption from liability. The following reasons have been given: That the funds of such institutions are held in trust for specific charitable purposes and should not be diverted to pay damages for negligence; that the better public policy is to hold them exempt; that they serve the same purpose as governmental agencies and should come under the same rule; that one who accepts benefits by becoming a patient, student or beneficiary of the institution impliedly consents to hold it exempt or to waive any claim for negligence of its servants; that the doctrine of respondeat superior does not apply to them; that their employees are not, in a legal sense, servants of the organization. Other grounds of exemption have been suggested. All of these reasons have been more or less criticized.”
Any rule followed by this court will have ample authority to support it. An analysis of the authorities will not do any good. Similar questions have been before this court in two cases. In Nichol son v. Hospital Association, 97 Kan. 480, 155 Pac. 920, this court declared that—
“Charitable associations conducting hospitals are not liable for the negligence of their physicians and attendants resulting in injury to patients unless it is shown that the association maintaining the hospital has not exercised reasonable care in the employment of its physicians and attendants.” (Syl. If 1.)
In Davin v. Benevolent Association, 103 Kan. 48, 172 Pac. 1002, a similar question was presented to this court, and the court there said:
“A charitable hospital corporation is not liable in damages for the failure of its medical superintendent to comply with a contract made by -him for the care of a patient being treated in the hospital.” (Syl.)
“One reason for this rule is that ‘trust funds created for benevolent purposes should not be diverted therefrom to pay damages arising from the torts of servants.’ Another reason is that ‘public policy encourages the support and maintenance of charitable institutions and protects their funds from the maw of litigation.’ . . . Both reasons are good.” (p. 50.)
In these cases this court declared that charitable. organizations are not liable for the negligence of its employees or agents. This court now prefers to follow that rule, and put it on the ground that the resources of charitable organizations are trust funds which cannot be subjected to the payment of damages in such cases. It follows that the Salvation Army is not liable to the plaintiff. This does not excuse the defendant Yought. However, it is not argued that he should be relieved from liability.
The judgment against Yought is affirmed, but the judgment against the Salvation Army is reversed and judgment is rendered in its favor.
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The opinion of the court was delivered by
Burch, C. J.:
The action was one to recover from the makers of a promissory note and from guarantors who, by separate instrument, guaranteed payment of the note at maturity. The guarantors demurred to the petition on the ground action against them was barred by the statute of limitations. The demurrer was sustained, and the payee of the note appeals.
Roy M. Moss and Elsa L. Moss gave Mamie Moore Ham a note for $650, dated October 12, 1925, and due one year after date, with interest at 8 percent per annum. On October 12,1925, J. F. Wimmer and other persons executed and delivered to Mamie Moore Ham the following instrument:
“To Mrs. Mamie Moore Ham, Prescott, Kansas:
“In consideration of your loaning to Roy M. Moss and wife the sum of six hundred and fifty dollars ($650) according to the terms of a certain promissory note dated October 12, 1925, and due October 12, 1926, with interest at the rate of 8 percent from date, we the undersigned, guarantee the payment of above note at maturity, and we also consent to the renewal of said note from time to time, provided the interest is paid on the same.”
About May 12, 1926, the makers paid $250 on the principal of the note. On October 12, 1932, six years after maturity of the note, the makers gave Mamie Moore Ham a renewal note for $400, due one year after date, with interest at 6 percent per annum. On June 10, 1935, the payee sued on the renewal note and the guaranty. The petition alleged all interest had been paid up to October 12, 1932.
The statute of limitations commenced to run in favor of the guarantors at maturity of the first note on October 12, 1926. After October 12, 1931, action against the guarantors was barred.
The guarantors consented that the original note might be renewed from time to time. The effect of that consent was to waive privilege to plead the defense of discharge by extension of time of payment. The consent did not enlarge the time within which action might be commenced to enforce the guaranty to pay the original note at maturity. While the facts were dissimilar, the principal involved was applied in the case of Hurley v. Gray, 103 Kan. 345, 173 Pac. 919.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This was a foreclosure suit. Plaintiff prevailed and defendants appeal.
Appellants, in June, 1934, executed and delivered to appellee a non-negotiable note in the sum of $12,000. The note was secured by two separate mortgages, one a real-estate mortgage and the other a chattel mortgage covering certain bakery equipment located in the building of the mortgaged premises. Appellants defaulted in payments on the note, insurance premiums, and taxes on the real estate for the years 1932 and 1933. Appellee, after much forbearance, finally commenced this foreclosure suit. It pleaded the note and mortgages and asked to have the real estate and chattels sold to satisfy the indebtedness.
Appellants filed a motion asking appellee be required to separately state and number the respective causes of action. The motion was overruled. It is contended this constituted error. The contention is not sound. The petition stated only one cause of action. That cause of action was the right to collect a debt. The mortgages were merely security for that debt. In the case of Ambrose v. Parrott, 28 Kan. 693, it was said:
“The note, although secured by a mortgage, is nevertheless the principal thing, and the mortgage is only an incident thereto — merely a security for the payment or the collection of the note.” (p. 698.)
The fact there was more than one security did not alter the principal. There still existed only one debt. Appellee’s cause of action entitled it to apply the several securities to the satisfaction of that debt. It may also be noted that in the instant cause the note and both mortgages were all part and parcel of one single transaction. Cases involving several notes and one or more mortgages clearly are not in point.
Appellee also asked to recover insurance premiums it had paid, due to appellant’s default. Appellants contend this was a third cause of action. The requirement to pay insurance premiums was contained in the note itself. It was a part of the single primary cause of action. In the early case of Bond v. Sewing Machine Co., 23 Kan. 119, this court held:
“In an action on a penal bond, where the breach alleged was, that one of the defendants, who was the principal obligor, had failed to pay over to the plaintiff, who was the obligee, certain money which the bond required should be paid, and it was shown by the petition and its exhibits that this money was merely a balance due on several items of account, all covered by the bond, held, that only one cause of action was stated.” (Syl.)
See, also, Contracting Co. v. Railway Co., 102 Kan. 799, 172 Pac. 527.
In the case of Small v. Small, 107 Kan. 122, 190 Pac. 623, an accounting was asked in connection with a prayer for a declaration of trust in property alleged to have been fraudulently obtained from a decedent. A motion to separately state and number was filed and sustained. Upon appeal, this court said:
“While a motion to separately state and number is addressed largely to the discretion of the court and is, ordinarily, not reviewable, it is manifest that but one cause of action was stated. Before a court of equity can mold the proper decree in a case of this kind there must be an accounting, which is only an incident to the real cause of action.” (p. 125.)
In the instant case the obligation to pay insurance premiums was an incident to the primary obligation, the note, and a part of the note.
It is further insisted the trial court erred in rendering judgment on the pleadings without first fixing an upset price for the real estate in the amount of the total indebtedness. This contention embraces two separate and distinct propositions, the first pertains to appellee’s right to have judgment for a specific amount, and to have the mortgages ordered foreclosed. The second pertains to the right of appellants to have an upset price fixed before judgment. Neither of the contentions is sound. Appellants’ answer admitted the execution of the mortgages as alleged by appellee, and admitted indebtedness in a specific amount which was less than that claimed by appellee. Appellee replied and admitted the amount set up in the answer to be correct. It then prayed judgment in that amount and the foreclosure of the mortgages. The trial court rendered judgment on the pleadings in favor of plaintiff as prayed for. It directed the real estate sold first, and the personalty sold only in the event a deficiency remained unsatisfied. This was proper. Appellants here contend that by reason of other allegations contained in the answer, the court should have heard evidence as to value and fixed an upset price before rendering judgment on the pleadings. That contention does not exactly coincide with the request contained in appellants’ answer, but we shall treat the contention. The answer asked an upset price be fixed not before judgment was rendered on the pleadings, but before order of sale issued. The portion of appellants’ answer which they claim entitled them to have an upset price fixed was in substance as follows: The real estate is worth more than the debt; prior to order of sale a hearing should be had to determine an upset price for the real estate and plaintiff should be directed to bid the full amount shown to be due, including principal, interest, insurance premiums, penalties, taxes and costs; that a separate order of sale issue for the real estate, and that the chattel mortgage be canceled and discharged of record.
We are not advised, and know of no statute or decision requiring the trial court to make such an order. We are referred to R. S. 1933 Supp. 60-3463a. That statute is simply interpretative of R. S. 60-3463, and declaratory of the equity powers which previously existed under R. S. 60-3463. It does not provide nor contemplate that a mortgagee shall not be entitled to judgment on thé debt and order of foreclosure unless an upset price is fixed in advance of judgment. True, under the statute, an upset price may be fixed prior .to sale at which the premises must be bid in, if the sale is to be confirmed. The statute, however, is not mandatory. It does not require the trial court to fix an upset price even prior to sale. That matter rests in the sound judicial discretion of the court.
The real estate was sold to appellee for $13,529.68. After paying taxes and total costs, there remained the sum of $12,437.16, to be applied on the judgment. This left a deficiency of $750. Appellants moved to set aside the sale. Appellee moved for confirmation. The trial court then heard extensive evidence on the subject of value. The evidence was conflicting. The trial court found that taking into account all the evidence and equities, including the deferred right to possession, which under the evidence was a factor to be considered in connection with present value, the bid was substantially the real value of the property. There is abundant competent evidence to support that finding. In view of the record, this court is not inclined to disturb the judgment of confirmation. In the case of Johnson v. Funk, 132 Kan. 793, 297 Pac. 670, it was said:
“Under the statute as it formerly existed a sale made in conformity with law was ordinarily confirmed, but the amended statute relating to confirmation of sheriff’s sales requires that the sale be made not only in conformity with law, but also in conformity with equitable principles. (R. S. 60-3463.) So it is that under the present statute a sale may be set aside, although regularly made, upon equitable grounds. (Anschutz v. Steinwand, 97 Kan. 89, 154 Pac. 252. See, also, Bank v. Murray, 84 Kan. 524, 114 Pac. 847.) The court has a reasonable discretion in determining whether a sale shall be confirmed or not, to be exercised on equitable principles.” (p. 794.)
True, it has been held that a bid by plaintiff for the full amount of the judgment, interest, taxes and costs, should now ordinarily be deemed adequate and in conformity with law and equity. (Prudential Ins. Co. v. Patten, 140 Kan. 708, 38 P. 2d 143.) It does not follow, however, that a sale for somewhat less would not be in conformity with both law and equity. It has been held chapter 218 of the Laws of 1933 nowhere attempts to indicate that an order confirming a sale for an amount less than the judgment rendered would be improper or irregular. (Equitable Life Assur. Soc. v. Shearer, 142 Kan. 310, 313, 46 P. 2d 869. See, also, Security Benefit Ass’n v. Swartz, 141 Kan. 227, 231, 40 P. 2d 433.)
Much is said by appellants concerning the failure of the trial court to set aside the sale of the personalty and also concerning its refusal to confirm that sale. We are at a loss to understand the contention. The record before us indicates there was no sale of the personalty. There being no sale of it, there was nothing to set aside or confirm.
Appellants contend R. S. 58-309 requires the personalty to be sold after notice by posting in four public places, and not as it was advertised by publication in five consecutive weeks in a newspaper. It is further argued appellee must obtain possession of the chattels prior to sale. This is a mortgage foreclosure. It is a judicial sale under supervision of the court, and not a sale under naked statutory power. (McFall v. Ford, 133 Kan. 593, 604, 1 P. 2d 273.)
An order of sale in a foreclosure case is a special execution as that term is used in R. S. 60-3402. (Pool v. Gates, 119 Kan. 621, 624, 240 Pac. 580.) R. S. 60-3469 is a special execution statute. It provides:
“In special cases not hereinbefore provided for the execution shall conform to the judgment or order of the court. When a judgment for any specified amount, and also for the sale of specific real or personal property, shall have been rendered, and an amount sufficient to satisfy the amount of the debt or damages and costs be not made from the sale of property specified, an execution may issue for the balance as in other cases.”
The judgment directed an order of sale issue for the sale of the personalty. This being a judicial sale, the personalty covered by the chattel mortgage was in the control of the court and is subject to sale in conformity with the orders of the court. In Norton v. Reardon, 67 Kan. 302, 307, 72 Pac. 861, it was said:
“After a decree of foreclosure has been entered in an action to enforce a mortgage or other lien, the execution for the sale of the property charged is special, and must conform to the order of the court.” (Syl. ¶ 1. See, also, Wheat Belt Bldg. & Loan Ass’n v. Armstrong, 140 Kan. 541, 38 P. 2d 145.)
Minor complaints have been noted and considered. In the light of what has been said they do not require treatment.
The judgment confirming the sale of real estate is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order and judgment of the district court of July 10, 1935, in which the court interpreted the judgment and decree of the court of May 3,1933, in the same cause. The action is for the specific performance of a contract between the parties. It appears from the record that in February, 1930, the parties hereto, being husband and wife, finding it impossible to maintain their marital status and that a divorce was necessary, entered into an agreement in writing respecting their property rights, alimony, and the custody and support of their minor child. Soon thereafter the wife brought an action for divorce, in which action the plaintiff was granted a divorce, and the court found that the agreement which had been entered into between the parties should be and the same was approved by the court. The decree in the action provided in substance that each party should own, hold and control separately the property belonging to and in the name of each of them respectively, “except as the parties may enforce said contract entered into between them.”
Thereafter and in August, 1932, plaintiff brought this action, alleging certain respects in which defendant had failed to comply with their agreement made in February, 1930, and approved in the divorce action, and .prayed that he be required to do so. Defendant filed an answer to plaintiff’s petition. One or more stipulations were filed, modifying in some respects the original agreement sought to be enforced. Eventually and on May 3, 1933, the court entered its judgment and decree, which, so far as is here material, recites:
“Thereupon it is stated to the court by both parties, and the court finds that the parties hereto have agreed upon a compromise, settlement and adjustment of all issues herein raised by the pleadings and all matters in controversy between the parties, which compromise, adjustment and settlement is submitted to the court, and the court, by and with the consent and approval of both parties hereto, doth order, adjudge and decree as follows:
“That the plaintiff herein, Helen G. Hyde, shall have the custody, care and control of the minor child of the parties, namely Sarah Grace Hyde, during the school period of each year and all other times except such periods in the months of June, July and August in each year when the defendant, Alex Hyde, shall desire such custody and care.
“It is further ordered that said child shall be permitted to visit the defendant, Alex Hyde, at any time when such visit can be made without interference with the schooling and education of said child; and it is further ordered that the plaintiff, Helen G. Hyde, shall not, in any way, prevent Alex Hyde from seeing and visiting said child in accordance with this decree.
“It is further by the court ordered and decreed that neither of the parties hereto shall at any time do or say anything calculated to influence said child against the other party hereto, and that except when and as the same shall be necessary to carry out this decree, neither of the parties hereto shall discuss with said child the terms of this decree or the terms of the settlement and compromise made by the parties. . . .
“For the care and maintenance of the child of the parties, namely, Sarah Grace Hyde, the defendant, Alex Hyde, shall pay to the plaintiff, Helen G. Hyde, thirty-six hundred ($3,600) dollars per annum, divided into monthly payments of three hundred ($300) dollars each; such payments may be made by the said defendant, Alex Hyde, by depositing the same to the credit of the plaintiff, Helen G. Hyde, in the First National Bank in Wichita, Wichita, Kansas, at any time on or before the 5th day of each calendar month; such payments for the care, custody and maintenance of said child shall continue so long as said child shall remain dependent and this court hereby retains full jurisdiction upon the application of either party to, if in the judgment of this court that should be done, determine whether or not, at the time of such application, such child is still dependent and whether or not the circumstances or situation of the parties to this action justify the amendment or alteration of the terms of this decree with reference to the care and maintenance of said child or the amount to be paid by the defendant therefor. . . .
“It is further ordered by the court that the defendant, Alex Hyde, shall, in addition to the other terms and provision hereof, and to the extent of his ability, pay all of the actual expenses, including fees of doctors, nurses and hospitals made necessary by the illness of, or accident to Sarah Grace Hyde.
“It is further by the court ordered and adjudged that the defendant, Alex Hyde, shall also pay the tuition and schooling expense of the said child, Sarah Grace Hyde; and it is ordered that said child shall not be permitted to attend any school, college or institution which is not approved by, both of her parents, the parties to this action. ...”
Defendant was ordered, adjudged and decreed to pay plaintiff the sum of fifteen thousand dollars ($15,000) within a time stated, and this was done. There were provisions in the decree for plaintiff’s use of the home to June 1, 1933, for defendant to pay certain club dues, for the division of household goods, etc., with which we are not concerned on this appeal.
About July 1, 1935, defendant filed in the cause a “motion to modify order,” which reads:
“Comes now the defendant, Alex Hyde, and moves the court for an order modifying all orders heretofore entered with reference to the support money to be paid to the plaintiff for the benefit of the minor child of the parties, and for cause thereof alleges:
“First: That as to the claimed support money for the period of September, 1933, the plaintiff did not maintain and support the minor child for a period of twenty-one (21) days and that the child was supported exclusively by this defendant, at his own expense, and that for that reason he should not be compelled or required to pay the sum of two hundred ($200) dollars for the first twenty-one days of September, 1933.
“Second: That during the months of June, July and August, 1934, the defendant had the custody and was charged solely with the support and maintenance of the minor child for said period, and that the plaintiff expended no money during said period for the support, education or maintenance of said minor child, and by reason thereof, the plaintiff is not entitled to receive any support money for said minor child during said period.
“Third: That starting in September, 1934, said minor child enrolled and became a student in a school in Kansas City and that this defendant had been charged with, and has paid, and is responsible for all bills necessary in the care, support, education and maintenance of said minor child, and that by reason thereof the plaintiff is not entitled to have, or receive any money for the support of said child during the school period.
“Fourth: That as pertains to the vacation period of 1935, defendant alleges that the sum of three hundred ($300) dollars monthly for the support, education and maintenance of the minor child is unnecessary and unreasonable in amount, and that for the period of time the plaintiff will have the care, custody and control of said minor child, that a fair and reasonable amount should be fixed corresponding to the actual amount of money required to be expended on said minor child.
“Wherefore, defendant prays for a modification of all previous orders in said cause, in conformity with the above.”
Upon the hearing of this motion July 10, 1935, defendant testified that Sarah Grace Hyde is now sixteen years old; that during the first twenty days of September, 1933, she was with him, and for that month he paid to the bank for plaintiff $100 instead of $300; that during the summer of 1934 the daughter was with him the entire summer; that for the school year of 1934 and 1935 the daughter was in a school at Kansas City, and that he paid tuition and everything connected with her school expense and sent her some expense money extra; that the daughter was with defendant at the time of the hearing, and it was the understanding that she would be with him until August 15; that he had paid nothing under the judgment and decree of the court of May 3, 1933, since June 1, 1934. He objected to questions touching his ability to make such payments, or as to his income, which objections were sustained. Plaintiff’s testimony was to the effect that in the early part of September, 1933, 'an apartment she had rented was being remodeled; that the daughter was with her a few days, then was with defendant until they moved into the apartment on the 16th; that during the summer of 1934 the daughter was not with her; that part of the time she was with defendant and part of the time in Colorado; that when the daughter was in school at Kansas City and plaintiff had an apartment there the daughter wanted to stay with her as much as she could — she could be there Wednesday nights and weekends and her friends could come; that they came to Wichita about June 7, 1935, since which time the daughter had been staying with the defendant; that she had maintained for the daughter the only home she could in view of the fact that payments had not been made by defendant since June 1, 1934; that she planned to maintain a more suitable home for the daughter if the payments were made.
The court, having heard the evidence and the argument of counsel, found:
“. . . that the motion should be sustained as to the first, second and third grounds thereof, and also sustained as to the fourth ground for the period of time which has expired at the time of the hearing.
“The court further finds and announces that the order made is not a modification of the order contained in the judgment of May 3, 1933, but is an interpretation of that order relating to support money for the minor child of the parties to this effect:
“That during the time the defendant has the custody of and supports the said minor child, Sarah Grace Hyde, that the plaintiff, Helen G. Hyde, shall not be entitled to receive the $300 per month support money, but that for any month or portion thereof that said minor child, Sarah Grace Hyde, shall be in the custody of the plaintiff, Helen G. Hyde, the defendant shall be obliged to pay on the basis of $300 monthly. . . .”
Plaintiff appeals and. contends that the court erroneously interpreted the judgment of May 3, 1933. We agree with that contention. The judgment and decree of the court entered on May 3, 1933, was made in accord with the stipulation of the parties. Indeed, in addition to being approved by the attorneys of the respective parties it was specifically consented to in writing by the parties themselves. It superseded all previous contracts between the parties relative to these matters. This indicates that what was finally done was the result of much previous discussion and consideration. All details of property settlement, the custody of their daughter, provisions for her maintenance, her education and care in the event of sickness or accident, were agreed upon and embodied in the court’s decree. It is apparent, also, the parties desired life to go on for their daughter and that she should have opportunities for development as nearly as possible as though her parents had had no controversy concerning the matter, for it is embodied in the agreement and decree, “neither of the parties hereto shall discuss with said child the terms of this decree or the terms of the settlement and compromise made by the parties.” Having considered all those matters the court concluded that plaintiff should have $3,600 per year, payable $300 a month, for the general care and maintenance of the daughter. To many people these figures would seem large, but we are told that the financial and social standing of these parties was such that the amount was deemed fair and reasonable. The fact that the parties agreed upon the amount, and that the same was approved by the court and embodied in its decree, establishes the fact, for this hearing at least, that these figures were not out of the way; and there is no contention now that defendant’s financial ability or his income is such as to make the payment an undue hardship upon him. Indeed, in the hearing from which this appeal is taken he successfully objected to an inquiry into those matters. The decree provided that the defendant should have the custody and care of their daughter for such periods in the months of June, July and August as he desired, but there is an absence of any provision in the decree that the payments to his wife for the maintenance of the daughter should be decreased for any of such period of time as defendant had the custody of their child. The parties also recognized that these payments would not care for expenses which might arise from illness of or accident to their daughter, and it was provided that defendant should pay all actual expenses made necessary by such illness or accident to the extent of his ability in addition to the $3,600 per year. The parties also took into consideration that there would be tuition and schooling expenses for the child which could not be met with the $3,600 a year, and the agreement and decree of the court was that defendant should also pay those.
The expenses up to the time of the hearing of the motion of which the defendant sought to be relieved may readily fall into two classes: A part of the time of each of three summers when the child, at defendant’s request, was with him. As to these the decree of May 3, 1933, made no provision for reduction of payments in the summer time by reason of the fact that the child might be with defendant at his request. The rest of the time of which defendant seeks to be relieved from payments is the school year of 1934 and 1935 when the daughter was in the school at Kansas City. His grounds for not paying the $300 a month during that period are based upon the showing that he paid the tuition and school expenses of the child during that school year; but the agreement of the parties and the decree of the court of May 3,1933, provided that tuition and schooling expenses of the child should be paid in addition to the $3,600 per year. It is clear the court misinterpreted that decree when in its order and judgment of July 10, 1935, it relieved defendant of those payments.
Appellee rightly contends that a sum decreed to be paid to a mother for the support of a child whose custody is awarded to the mother is a distinct thing from alimony awarded to a wife in a divorce action. From this it does not follow, however, that the sum adjudged to be paid for the maintenance of a child is necessarily limited to cash outlay for bare necessities. In many instances it means the home should be maintained on an entirely different scale than as though the mother were living alone. Apparently such is the purpose in this case. Here was a daughter fourteen years of age at the time the decree in question was entered, of well-to-do parents, no doubt having friends among the same class of people. It costs money to purchase or rent, furnish and maintain a home such as both of the parties apparently wanted this daughter to have. The fact that she was absent and with her father a few days or a few weeks in the summer might not decrease to any great extent the yearly expense of furnishing and maintaining such a home. Perhaps realizing that, the parties made no provision 'in their agreement and the court made none in its decree for any reduction of payments by reason thereof. The parties also looked forward to the time when they might want their daughter to attend a private school, or a special school of some character. The parties realized that the sum to be paid for the maintenance of the child would not pay the expense of such a school, so they agreed and the court decreed, that defendant “shall also pay the tuition and schooling expense.” of the child. The parties evidently contemplated that even though the daughter were in school a home for her should be maintained by the mother where she could spend as much time as possible and where she could bring her friends. It is an inaccurate interpretation of the decree to say that the amount, $3,600, to be paid at $300 per month, was to be reduced by any of those matters.
Defendant’s motion included a request for the court to modify the decree. The court declined to modify the decree, and specifically so stated in its ruling upon the motion. The result is that the decree of May 3, 1933, has not been modified.
Appellee suggests as one of the points to be determined on this appeal the question: “Has the court power to modify a support money decree as to past-due installments?” and the ancillary question: “If so, did the court abuse its discretion in this case?” Really, we do not have either of these questions before us for the reason that the court did not modify its former decree. Indeed, there was no evidence before the court which would justify it in modifying its former decree. The only evidence presented went to the fact that defendant had not made the payments provided for in the decree, and under an interpretation of the decree which he succeeded in having the court make he was under no duty to make the payments. The result is that the court did not modify the former decree because there was no evidence on which to base such a modification. Appellee’s argument on this point largely centers around our statutes and decisions concerning the power of the court to modify its decree in a divorce case as to the amount that should be paid for the maintenance of a child with respect to past-due payments. No decision of this court is cited holding that in such a case a court can relieve the party from past-due payments. We need not analyze this argument closely for two reasons: (1) The court, by its order of July 10, 1935, did not modify the decree of May 3, 1933, and (2) the decree of May 3, 1933, was not rendered in a divorce action; it was rendered in an action for the specific performance of a contract. The decree did contain a provision for its modification as follows:
. . such payments ($3,600 per annum, etc.) for the care, custody and maintenance of said child shall continue so long as said child shall remain dependent and this court hereby retains full jurisdiction upon the application of either party to, if in the judgment of this court that should, be done, determine whether or not, at the time of such application (not at some time prior to such application), such child is still dependent and whether or not the circumstances or situation of the parties to this action justify the amendment or alteration of the terms of this decree with reference to the care and maintenance of said child or the amount to be paid by the defendant therefor.”
The decree, therefore, provides its own method for its modification. Until it is modified as provided for in the decree it should be enforced.
From what has been said it necessarily follows that the judgment of the court below must be reversed, with a direction to enter an order requiring defendant to pay all past-due payments provided for in the decree of May 3,1933, and to make payments hereafter in accordance with that decree, unless and until that decree is modified as provided for therein. It is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
The errors of which complaint is made in this case are the setting aside of the general verdict in favor of the defendant for $486, and the answers to a number of special questions and the rendering of a judgment in favor of the plaintiff, the International Harvester Company, on six notes given by the defendant for the purchase of a tractor and harvester-thresher. The plaintiff had sued upon the six notes given by the defendant to local dealers for the tractor and harvester-thresher and assigned before maturity to the plaintiff harvester company. The answer admitted the execution of the notes and for defense alleged agency of the local dealers for the plaintiff company, breach of warranty, that the notes were not negotiable, and that plaintiff was not a holder in due course. The answers to special questions that were stricken out were those finding the local dealers were agents of the plaintiff, the relation being shown by written contracts between them and the plaintiff, which the court held as conclusive on that subject and contrary to the special findings. The answers of the jury that remain relate to the question of breach of warranty and the compliance by the defendant with all the prerequisites on the part of the defendant before his return of the property and his demand for rescission. The amount of the general verdict rendered represented payment made by the defendant upon the purchase price.
We will pass over the question of agency, assuming, without deciding, that there was no error as far as that feature of the case is concerned, and will consider the two remaining questions as to the negotiability of the notes and whether or not the plaintiff company was a holder in due course.
Our attention is directed to the inconsistent nature of the indorse ment on each of the notes, the first part of which is an unconditional indorsement for value received, together with a guarantee of payment. This portion is printed and is followed by the words “without recourse” in writing before the signature. The usual rule of construction in such cases is to infer that the written words were intended instead of the earlier printed words of guarantee with which they are inconsistent. This would make it an indorsement without recourse and would not impair the negotiable character of the instruments. (R. S. 52-409.) Neither would the guarantee in the indorsement, if not replaced by the written words following, impair their negotiable character. (Kellogg v. Douglas Co. Bank, 58 Kan. 43, 48 Pac. 587; Lumber and Coal Co. v. Robbins, 104 Kan. 619, 180 Pac. 264; State Bank v. Rummel, 114 Kan. 597, 220 Pac. 255.)
Appellant insists that the notes are not negotiable because they contain orders and promises to do acts in addition to the payment of money. The face of each note contains the following paragraph after the formal part and above the signature, differing only as to the number of other notes and the name and number of the article of machinery purchased:
“This note (with 1 other) is given for McCormick-Deering Tractor No. T. G. 38413 and I Hereby agree that title thereto, and to all repairs and extra parts furnished therefor, shall remain in the payee, owner or holder of this note until this and all other notes given therefor shall have been paid in money, and if at any time he shall deem himself insecure, He may take possession of said property and hold the same until all of said notes and the expenses of such repossession shall have been paid, and if default is made in the payment of this or any other of such notes, or if said property or any part thereof is levied upon, or the undersigned attempts to sell or remove the same, then the owner or holder thereof may declare this and every other such note due, and may take or retain possession of said property, and sell the same at public or private sale, with or without notice, pay all expenses incurred thereby, including expense for repossessing, storing, reconditioning and reselling the same, and apply the net proceeds on this and other notes given for the purchase price thereof. I further agree in consideration of the use of said property to pay any balance remaining unpaid on this or any other such note after the net proceeds of such sale are applied, and that if said property, or any part thereof, shall be lost, damaged or destroyed before full payment of the purchase price, I shall not on that account be entitled to a rescission of this contract or abatement in price.”
Is there anything in this long statement included in the face of the notes that amounts to a promise on the part of the maker to do anything in addition to the payment of money to meet the obliga tioñs of the notes? He authorizes the payee or holder to deduct from the proceeds derived from the sale of the property held as security the expense for repossessing, storing, reconditioning, and reselling the property and to credit the net proceeds on the note, and then promises to pay the balance remaining unpaid. Is this not substantially the same as saying that in case the property is taken and sold to pay these notes, I further agree to pay all expense of reconditioning, storing, repossessing, and reselling the same? These may be proper and usual obligations in a chattel mortgage, but they are none the less promises to do some additional act.
In the case of Bank v. Hoffman, 85 Kan. 71, 116 Pac. 239, the note contained the promise that if the security attached as collateral depreciated in value the maker would furnish additional security, and the note was for that reason held to be nonnegotiable. Observe the words used in the last sentence above quoted from the body of the notes, which expressly show all parties thereto understood there was something additional promised by the maker — “I further agree in consideration of the use of said property to pay any balance remaining unpaid,” etc. — a further promise supported by a consideration not involved in the purchase of the property for which the notes were given.
In Killam v. Schoeps, 26 Kan. 310, 313, it was said by Justice Brewer under similar circumstances:
“The additional stipulation is not in reference to the payment of money, but a matter entirely foreign and distinct. There might as well be included in one agreement a contract for the lease of real estate, or the hiring of chattels, or the performance of labor with an absolute promise to pay a sum certain at a certain time, and then affirm that by reason of this absolute promise the entire contract is a negotiable instrument.”
Whatever may be said as to necessary costs and expenses incidental to the collection from the sale of the property, it certainly cannot be expanded to include “reconditioning” and a further promise as to and for the use of the property. (8 C. J. 125.)
A serious, and we think fatal, omission in the statement of the rights of the holder with reference to the property is the words of the statute (R. S. 52-205) “for reasonable cause,” thus giving the holder of these notes the right to dispose of the property with or without reasonable cause for deeming himself insecure.
“The negotiable instruments law was adopted for the purpose of establishing uniformity in the law pertaining to negotiable instruments. (First State Bank of Nortonville v. Williams, 164 Ky. 143.) The purpose of the law, among others, is to establish definite rules by which persons dealing in bills and notes may, by examining an instrument, know whether or not it is a negotiable instrument. Perhaps some of the rules respecting negotiable instruments are arbitrary (Killam v. Schoeps, 26 Kan. 310), but they should be followed, for, to hold otherwise would make the law of no force.” (Foley v. Hardy, 122 Kan. 616, 618, 253 Pac. 238.)
Regardless of whether the notes were negotiable or not the appellant maintains that the appellee was not a holder in due course. Adopting the theory of the appellee for the time being with reference to the question of agency, viz., that the local dealers, Farrell Bros., were not agents of the plaintiff but purchasers under conditional sale contracts, let us assemble the undisputed evidence on the subject of the knowledge and contact of the plaintiff company with the entire transaction with the defendant here involved. The following four extracts are from the conditional sale contracts between the plaintiff company and Farrell Bros., the local dealers, referred to in the contracts as the purchasers:
“The title to all goods shipped under this contract, with right of repossession for default, is reserved by the company until the purchaser has made full payment in cash for all of said goods and for all notes given therefor. Prior to full settlement in cash the purchaser shall have no right to sell or dispose of any goods delivered hereunder except for value received in the ordinary course of trade and upon the express condition that prior to the delivery of any of said goods to a customer, the purchaser shall secure from said customer a full settlement in cash or good and bankable notes and that the proceeds of all resales shall be considered the property of the company in lieu of the goods so sold and held in trust for it and subject to its order, as provided in paragraph four hereof, until all sums due under this contract have been fully paid. . . .
“The company will furnish the purchaser with a supply of printed forms for use in reselling the goods ordered hereunder and containing written warranties applicable to the several kinds of goods. In all cases where the purchaser gives his customer a written warranty in the form suggested, the company will protect the purchaser and stand back of him in giving, such warranty. ...
“The company reserves the right to change the form of warranty in any of said order blanks at any time. The net price (but no freight or express charge) of any parts which the purchaser is liable to furnish and shall furnish a customer in fulfillment of any such warranty may be charged back to the company. . . .
“Upon request of the company at any time the purchaser agrees to turn over, indorse and assign to the company a quantity of customers’ notes or, if notes are not available, then customers’ accounts sufficient to fully cover and secure all indebtedness of the purchaser hereunder, such notes and accounts to be held as collateral security to said indebtedness. Payment of said customers’ notes and accounts at maturity is guaranteed by the purchaser' and presentation, demand, protest, notice of protest and diligence are waived both as to makers and indorsers. In case of default in payment of any of said collateral notes or accounts, the purchaser agrees to remit cash for full amount of same together with interest and collection charges within 15 days after maturity. All collections on collateral notes or accounts are to be credited on the note or notes or account of the purchaser first becoming due. On payment of purchaser’s indebtedness in full all collateral notes or accounts remaining in possession of the company are to be returned.”
The following is a copy of one of the two orders made by the defendant, the other differing only as to description and price of machinery purchased and the number and size of the notes given therefor:
“Order for Goods.
To Farrell Bros. (Dealer).
Niles (Town) Ks. (State).
I hereby order of you the following goods:
No. ordered.- Size and description. Price.
1...... 10 ft powr drve Havestr Thresh........................ $1,085.00
1...... 30 Bu. Grain Bin...................................... 82.50
Carrying Charge .............................................. 29.19
Subject to crop condition.
(If space is insufficient continue order on back.)
To be delivered at your place of business on or about June 10, ’26.
I agree to pay freight on same from faQtory and settle on delivery in cash or approved bankable notes as follows:
Deposit note of $250.
$583.75 due July 15, 1926.
$613.94 due July 15, 1927.
Notes to draw interest at 8 per cent per annum before and 10 per cent per annum after maturity. <
I am retaining a copy of this order which, together with the warranty and agreement on the back hereof, is understood to be our entire contract.
5-17, 1926 (Date) W. H. Watkins (Purchaser’s signature).
Niles (Post office) 1 (R. F. D.) Ks. (State).
Ottawa (County) Lincoln (Township).
Purchaser lives 1 miles north, east, south, west of above P. O.
Order taken by E. A. Taylor.
Subject to acceptance by dealer to whom order is addressed.
Accepted 5-17, 1926 (Daté) By Farrell Bros.
(Give purchaser a copy of this order.)”
On the back of these orders is what is denominated a “warranty and agreement,” a part of which is as follows:
“The purchaser agrees to give each machine a fair trial as soon as possible after receiving and within two days after the first use. If it then fails to work properly and prompt notice is given, the seller will send a man within a reasonable time to put it in order, the purchaser agreeing to render friendly assistance. If it still fails to work properly and the purchaser promptly returns it to the seller at the place where delivered, the seller will refund the amount paid, which shall constitute a settlement in full.”
It will be observed that the order says it was taken by E. A. Taylor and accepted the same day by Farrell Bros. The undisputed evidence shows that Taylor and Jack Farrell were present when purchase was made by defendant and contract signed; that Taylor kept the original; that Farrell never reported the sale to the company, but received the commission; that the notes in question were signed in the presence of Jack Farrell and E. A. Taylor; that the chattel mortgage was prepared by R. N. Bersten and signed in his presence and that of one J. R. Tyler; that the notes and chattel mortgage were immediately transferred by Farrell Bros, to the plaintiff and were in their' hands only while they were being so assigned, and Farrell Bros, were given credit for them on their account with the plaintiff; that E. A. Taylor was a traveling salesman for the plaintiff, R. N. Bersten was the credit clerk in the branch office of the plaintiff at Salina, Kan., and J. R. Tyler was what was called a block-man having a territory assigned to him by the plaintiff, the defendant and Farrell Bros, being in his territory.
From the above undisputed facts it will readily be observed that the plaintiff company was, through its recognized agents and representatives, Taylor, Bersten and Tyler, in close touch with every detail in connection with the sale to defendant and the taking of the notes and security therefor. Taylor took the order, as the order itself states. Farrell Bros, never reported the sale, and had possession of the original order or the notes or mortgage only long enough to assign them. The sales contract provides that the notes and securities taken from the customer by Farrell Bros, belong to the plaintiff company, so that plaintiff could have recovered them by replevin or other proceeding if Farrell Bros, had refused to assign and deliver them. The plaintiff company furnished the order blanks with the printed warranties on the back of them, required their use, and agreed to stand back of Farrell Bros, for any loss by reason of any breach of such warranty. The plaintiff’s representative investigated the security and prepared the chattel mortgage. Farrell Bros.’ only apparent duty or work was to accept the order and assign the notes and mortgage. The plaintiff company handled everything from the start to the finish. This is most certainly not within the contemplation of the term “holder in due course,” as defined in R. S. 52-502, particularly as to the third and fourth subdivisions thereof.
Appellee relies upon Ireland v. Shore, 91 Kan. 326, 137 Pac. 926; Bank v. Hildebrand, 103 Kan. 705, 177 Pac. 6; and Thresher Co. v. West, 108 Kan. 875, 196 Pac. 1061. The only portion of the first-named case in point is with reference to the burden of proof, which does not directly affect this case, as the defendant assumed the burden of proof and the defense is not defective title.
In the second case cited above it was held:
“The purchaser of a promissory note is not prevented from being a holder in due course by the knowledge of the fact that, as between the maker and the payee, there may, before the note matures, arise'a set-oif or counterclaim in favor of the maker.” (Bank v. Hildebrand, supra, syl. ¶ 2.)
It was there stated that everyone knows that, as between the maker and the payee, there may, before the maturity of the note, arise a set-off in favor of the maker. There the indorsee was a bank and its first connection with the transaction was the purchase of the note. The defense was bad faith of the purchaser, whereby it could have known that the payee was insolvent and that the note was therefore given without consideration, it being a note for insurance premium. If the bank in that case had been standing back of the insolvent insurance company and had agreed to make good any loss sustained by the insurance company by reason of such policy the facts would have been similar to those in this case. So we cannot consider the Hildebrand case as helpful in this case.
The third case cited above is one based on some facts very similar to those in this case. It involved breach of warranty of machinery. The payee of the note later consolidated with the company which sued on the note. It was there held in effect that knowledge on the part of the plaintiff of the terms and conditions of the contract under which the machinery was sold would not prevent the plaintiff from being a holder in due course; that the indorsee should not be made to assume a liability on a warranty upon the mere showing that such indorsee knew of the existence of such contract of warranty. The opinion further states:
“The defendant offered no evidence to show that there had been a con solidation of the Rumely Products Company and the plaintiff. None was offered to show that the Advance-Rumely Thresher Company assumed the obligations of the original contract, nor was there evidence' tending to show that the plaintiff was not a purchaser of the notes before maturity for a valuable consideration and without notice of defects or equities between the defendant and the original payee.” (Thresher Co. v. West, supra, p. 877.)
These concluding remarks of the court show a radical difference between that case and the instant case. Can this well-designed plan of having the notes made payable to a third party and immediately assigned be said to be in good faith and in due course when its very evident purpose is to cut off all equities of the maker?
“If one who takes a bill of exchange or promissory note knows at the time that defenses and equities exist against it in the hands of his transferor, he is not entitled to the protection afforded a bona fide holder by the rule of the commercial law. This notice of a defense to the instrument or of its infirmity affects the good faith of the purchaser and deprives him of the vantage ground and security of an innocent purchaser. However much he may have taken the instrument for value and before maturity, knowledge nevertheless deprives him of the character of a holder in due course.” (3 R. C. L. 1065.)
There is no question of notice in this case as in most cases. Plaintiff furnished the blank forms, authorized the warranty, and agreed to make it good to the local dealer. The representatives of the plaintiff took the order and two other representatives looked after the taking of security. The local dealers simply accepted the order and assigned the papers. The notes were the property of the plaintiff by the terms of the contract even before they were assigned. We cannot call this a transaction in good faith or one to entitle the plaintiff to the privileges of a holder in due course under the statute.
“It has been said that good faith means payment of value for the instrument; but the payment of a valuable consideration is not alone sufficient to establish good faith. Nor does the additional fact of acquisition before maturity establish a case of bona fides. It should appear, also, that the facts and circumstances attending the transfer were not such as to charge the transferee with notice of a defect or infirmity in the paper.” (3 R. C. L. 1032.)
“Actual knowledge óf defenses or of equities precludes a holder from occupying the position of a holder in due course, although he paid full value for the instrument.” (8 C. J. 497.)
“If a party has knowledge of facts or circumstances involved in the negotiation of a note, the legal effect of which would avoid the transfer to him, he cannot claim as a bona fide holder, no matter how honestly he may have believed that the law would sustain the transfer.” (8 C. J. 499.)
We conclude that the plaintiff is not a holder in due course of the notes involved in this case.
The judgment is reversed and the cause is remanded with instructions to render judgment in accordance with the views herein expressed.
Burch, J., not sitting.
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The opinion of the court was delivered by
Burch, C. J.:
The action was one by the personal representatives of Edward S. Dunn, deceased, to recover from C. H. Jones damages consequent on Dunn’s .death, which resulted from injuries inflicted by Jones in negligent operation of a motor truck. Damages were also claimed for injury to Dunn’s property in the same accident. Joined with the action against Jones was another against the State Farm Mutual Automobile Insurance Company on a policy of insurance issued to Jones as a contract motor carrier, pursuant to the statute regulating motor carriers. The insurance company demurred to the petition on two grounds; first, misjoinder of causes of action, and this ground was confessed. Second, the action was prematurely brought against the insurance company; cause of action had not accrued for the reason cause of action against Jones had not been established by judgment. The demurrer on this ground was sustained, and plaintiffs appeal. The proceedings against Jones personally are not now material.
The petition alleged that Jones was granted a certificate by the public service commission to engage in the business of contract motor carrier, and as a condition to the granting of his application for a certificate, Jones filed with the public service commission the policy sued on, which was accepted by the public service commission. The petition further alleged that Jones was operating a motor truck on a state highway, pursuant to the permit, that Dunn was driving an automobile on the highway, and that Jones negligently operated the truck in such a manner that the truck struck the automobile, wrecked it, and fatally injured Dunn. A copy of the policy was attached to the petition.
The policy protected Jones against legal liability resulting from accident by reason of ownership or use of the truck, on account of injury to or the death of one person, and on account of injury to property. The policy, however, expressly provided that no action to recover for any loss covered by the policy, arising or resulting from claim upon Jones for damages, should be sustainable, unless by Jones, and after the amount of damages for which he might be liable had been determined, either by final judgment against him, or by agreement by Jones and the claimant, with the company’s assent.
The policy bore an indorsement, duly executed by the insurance company, which was made part of the policy. The form of endorsement was prescribed by the public service commission, pursuant to its power to make rules governing motor carriers. The endorsement enlarged liability of the insurance company by permitting action against the insurance company by one sustaining injury covered by the policy, on failure of the insurance company to pay any final judgment for such injury. The result is, the policy permitted action by plaintiffs against the insurance company, but only on default o^ the insurance company to pay any judgment recovered by plaintiffs against Jones.
The public service commission may not make any rule regulating motor carriers contrary to the statute, and we are remitted to the statute to ascertain what kind of insurance policy a motor carrier must provide.
In 1925 the legislature passed an act (Laws 1925, ch. 206), the title of which reads:
“An act providing for the supervision, regulation and conduct of the transportation of persons, freight and property for hire over the public highways of the state of Kansas by motor vehicles; conferring jurisdiction upon the public utilities commission to license and regulate such transportation; providing for the enforcement of the provisions of this act and for the punishment for violations thereof; and repealing all acts inconsistent with the provisions of this act.”
The substantive portion of the act consisted of eleven sections and dealt with motor-carrier transportation on public highways, to the extent regulation of that kind of traffic had developed at that time. Section 7 reads:
“No certificate of convenience shall be issued by the public utilities commission to any motor carrier until and after such motor carrier shall have filed with, and the same has been approved by, the public utilities commission of this state, a liability insurance bond in some insurance company, or association authorized to transact business in this state, in such a sum as the public utilities commission may deem necessary to adequately protect the interests of the public with due regard to the number of persons and amount of property involved, which liability insurance shall bind the obligors thereunder to make compensation for injuries to persons and loss of or damage to property resulting from the negligent operation of such motor carrier. Said public utilities commission shall also require a satisfactory bond in such penal sum and conditioned on the payment of all fees, taxes or charges which may be due the state or any governmental unit in the state under any permit of operation and for the faithful carrying out of any permit granted by said public utilities commission: Provided, That any motor carrier coming under the provisions of this act who shall furnish annually to the public utilities commission satisfactory proof and evidence of such motor carrier’s financial ability to properly protect the interest of the public and pay compensation for injuries to persons and loss or damage to property on account of or arising out of negligent operation of such motor carrier’s business, shall not be required to furnish any liability insurance bond therefor. No other or additional bonds or licenses than those prescribed in this act shall be required of any motor carrier by any city or town or other agency of the state.”
In 1929 the legislature passed an act (Laws 1929, ch. 220), the title of which reads:
“An act relating to public utilities and common carriers, providing for rehearings and for review of orders or decisions of the public service commission, and repealing section 66-118 of the Revised Statutes of 1923, and all acts and parts of acts in conflict herewith.”
This act related to the single subject of rehearings and reviews of orders and decisions of the public service commission affecting public utilities and common carriers generally. Its relation to motor carriers on public highways, when enacted and at this time, is of no present concern.
In 1931 the legislature passed an act consisting of twenty-five substantive sections (Laws 1931, ch. 236) relating to transportation by motor vehicle over public highways under the following title:
“An act relating to transportation by motor vehicles over the public highways of Kansas, and repealing all parts of chapter 206 of the Laws of 1925 and chapter 222 of the Laws of 1929 (being sections 66-196 to 66-1,107, inclusive, of the 1930 Supplement to the Revised Statutes of Kansas, 1923), inconsistent or in conflict with this act.”
The utterly nonsensical references to repeal in the title and a corresponding repealing section in the body of the act are, of course, to be disregarded (Fuller v. Atchison, T. & S. F. Rly. Co., 124 Kan. 66, 71, 257 Pac. 971), and the effect of the act on other statutes must be determined from its provisions.
Even a casual inspection of the act of 1931 reveals that, in form and substance, it was a complete revision of the motor-carrier law of this state, extended to cover subjects not dealt with in the law of 1925. It was designed to utilize the benefit of experience in regulating a business which had rapidly developed to unforeseen proportions. A detailed comparison of the act of 1931 with the act of 1925 is not necessary.
The subject of section 7 of the act of 1925 received specific legislative consideration in 1931. The phraseology was occasionally employed where applicable, but the section was completely revised and was replaced by section 21 of the act of 1931, which reads:
“No certificate or license shall be issued by the public service commission to any ‘public motor carrier of property,’ ‘public motor carrier of passengers,’ ‘contract motor carrier of property or passengers’ or ‘private motor carrier of property,’ until and after such applicant shall have filed with, and the same has been approved by, the public service commission, a liability insurance policy in some insurance company or association authorized to transact business in this state, in such reasonable sum as the commission may deem necessary to adequately protect the interests of the public with due regard to the number of persons and amount of property involved, which liability insurance shall bind the obligors thereunder to pay compensation for injuries to persons and lofes of or damage to property resulting from the negligent operation of such carrier. No other or additional bonds or licenses than those prescribed in this act shall be required of any motor carrier by any city or town or other agency of the state.”
Aside from the fact that section 21 appears in a revisory act, old section 7 was so thoroughly revised that it is now nugatory.
The insurance policy required by the act of 1931 is a liability insurance policy which shall bind the insurer to pay compensation for injury to person and loss of or damage to property, resulting from negligent operation by the motor carrier. What is a liability insurance policy?
A liability insurance policy is a policy of the kind indicated by the qualifying word “liability.” “Liable” means bound or obliged by law. “Liability” is the condition of being liable. A liability insurance policy is one that indemnifies against the condition of being liable, and such a policy is to be distinguished from one which indemnifies against ultimate established loss, resulting from final enforcement of liability.
There are insurance policies and insurance policies.. The nature of a particular policy must be ascertained by interpretation of its provisions. The distinction between policies insuring against liability and policies insuring against loss is made clear, and some of the consequences of the distinction are discussed in the opinion in the case of Blanton v. Cotton Mills Co., 103 Kan. 118 (1918), 172 Pac. 987. Brandon v. St. Paul Mercury Indemnity Co., 132 Kan. 68 (1931), 294 Pac. 881, is a parallel case, in which the distinction between obligation for liability and obligation for loss was recognized. See, also, the article on Liability Insurance in 36 C. J. (1924) §§ 3, 4, 74, 75, 76.
Besides specifying the kind of insurance, by a description having definite meaning in the law of this state, section 21 of the 1931 act indicates liability insurance. The purpose of the insurance is adequate protection to members of the public from negligent conduct of the motor7vehicle operator, not simply protection to the negligent operator against judgments rendered against him, and what the policy must assure is recoverable compensation to a member of the public for injury to person and .loss of or injury to property.
The legislature might have provided that no liability should attach to the insurer until judgment had been rendered against the motor carrier for damages resulting from his negligence. It did not do so. In the Blanton case the terms of a policy were considered, and it was held the policy was a liability policy. In this instance, the terms of the statute are considered. It required a liability policy, and the following, from the opinion in the Blanton case, is pertinent:
“These provisions show that- the obligations of the contract rested upon the insurer from the time the accident occurred down until the liability result ing from them was settled and discharged.” (p. 123.)
Obligation to pay compensation accruing at the time of accident resulting in injury is enforceable by the injured person by action in the usual way.
The insurance company says the statute does not fix the time when compensation shall be paid. By fixing the time when liability accrues, the notion that time of discharge of the obligation must be postponed until judgment is rendered against somebody else is excluded.
Section 7 of the statute of 1925 and section 21 of the statute of 1931 are both printed in the 1933 supplement to the revised statutes of 1923. The insurance company assumes both statutes are in force. The revisor of statutes does not presume to determine what statutes are rendered nugatory by later enactments, and what are not, and print some and leave others out. He makes cumulative supplements.
Based on the assumption noted, the insurance company contends the proviso of old section 7, relating to self-insurance, still stands, and some inferences are drawn accordingly. If the proviso should stand, the self-insurer would be a self-insurer against liability as hereinbefore defined, and not a self-insurer against loss. Old section 7, however, is repealed in two ways. First, by revision of the entire motor-carrier law in 1931, with the result there is no longer any 1925 law. (State, ex rel., v. Studt, 31 Kan. 245, 1 Pac. 635; Bridge & Iron Co. v. Labette County, 98 Kan. 292, 305, 158 Pac. 8; Topeka v. McCabe, 79 Kan. 329, 99 Pac. 602; Great Western Portland Cement Co. v. Public Service Comm., 121 Kan. 531, 247 Pac. 881; Hauserman v. Clay County, 89 Kan. 555, 132 Pac. 212.) Second, the unit of a legislative act is the section. When a section of a statute is amended, it is the duty of the legislature to repeal the section. (Constitution, art. 2, § 16.) If the legislature does not perform its duty, the section is nevertheless repealed. (Missouri Pac. Rld. Co. v. Red Star Milling Co., 122 Kan. 122, 127, 251 Pac. 417.) There is no such thing as fractional amendment of a section, leaving part of it in force.
It would be idle to contend old section 7 was not amended by section 21 of the later act. One form of amendment was by omission of the proviso of old section 7, and comparison of that section with new section 21 is useful only as illustrating progress in the regulation of motor-carrier transportation on public highways.
The policy actually filed with the public service commission has been described. It is not in form and verbal content a liability policy. For purpose of this lawsuit, it is nevertheless a liability policy. It was filed to comply with a condition precedent to obtaining the benefit of the motor-vehicle-transportation act. It accomplished the purpose for which it was intended and was the means of securing those benefits. The law is read into it, and the policy has precisely the same effect as if it bore a rider, stating that the terms of the policy are to be construed as complying with the statute.
The principle involved was stated and applied in the case of Farmer v. Rutherford, 136 Kan. 298, 15 P. 2d 474. The action was one against a sheriff and the surety on his bond, for damages resulting from mistreatment of a prisoner in the sheriff’s custody — conduct constituting breach of the kind of bond the statute required the sheriff to give. The bond given by the sheriff did not in terms comply with the statute and did not in terms cover the conduct. Comparison of the bond with the bond prescribed by statute to be given by a county treasurer showed that a county treasurer’s bond was used, the word “sheriff” having been inserted where the word “treasurer” appeared. Following the general rule applicable in such cases, it was held the statutory obligation of a sheriff would be read into the bond. The opinion in the case sufficiently reviewed authorities.
The insurance company seeks to avoid effect of the decision in the Farmer case by making distinctions which do not distinguish. The subject of joint liability of principal and surety upon instruments of security is discussed — something which has nothing to do with the subject of disregarding words used in an instrument and reading into the instrument what the law requires shall be there.
The insurance company says there is a special statute 'relating to official bonds, giving a right of action to anyone injured by official misconduct. That is true, but the object and purpose of section 21 was to give a right of action against the insurer directly, to a member of the public injured in person or property through negligence of the motor carrier.
Other attempts to distinguish the Farmer case need not be noticed. The court adheres to the Farmer case as establishing method of determining what the contract sued on was.
The insurance company says the statute has received operative interpretation, as shown by the endorsement on the policy prescribed by the public service commission. The public service commission simply misconceived the meaning of the statute, and no amount of misinterpretation can change the statute.
Attention is called to the fact that a bill amending the section of the code of civil procedure relating to joinder of defendants, which in this instance would have permitted joinder of Jones and the in surance company, was defeated in the 1983 legislature. Had the bill passed, the first ground of the insurance company’s demurrer would not have been good. Liability of neither Jones nor the insurance company would have been increased or diminished.
The insurance company makes the question-begging statement that to permit action against it now would impair the obligation of contract. The fallacy is patent.
There are decisions by other courts relating to the nature of the insurance company’s liability in cases of this character. • Time and space forbid review of the cases, which would necessitate exemplification of statutes, of policies and of opinions. Two cases quite analogous to this one fully support the conclusions which have been expressed: Curtis v. Michaelson, 206 Ia. 111, 219 N. W. 49; Jacobsen v. Howard, 164 Okla. 88, 23 P. 2d 185. No analogous case to the contrary has been cited to the court.
The judgment of the district court is reversed, and the cause is remanded with direction to overrule the unconfessed portion of the demurrer to the petition.
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The opinion of the court was delivered by
Burch, C. J.:
The proceeding was one by Frank C. Woodruff, candidate for election to the office of probate judge, to contest the election of his opponent, D. S. Bell, by an announced majority of sixteen votes. The contestor was unsuccessful, and appeals.
At the hearing before the contest court, the contestor offered evidence which was admitted, but was later disregarded, and offered evidence which was rejected. The contestor moved that the ballots cast at the election be produced and counted. The motion was denied. A demurrer to the contestor’s evidence was then sustained, and he appealed to the district court. The district court announced it sat as an appellate court. It refused to hear evidence, examined the transcript from the contest court, and approved and confirmed the rulings, decisions and judgment of the contest court. From the transcript, so considered, the district court found the contestor’s showing was insufficient to overcome the prima facie legality of the returns of the judges and clerks of election.
Following the general election in the year 1934, two contests were instituted. One related to the office of county clerk, and is referred to as the Stockebrand-Sháw contest. The other related to the office of probate judge, and the proceedings are now under review.
The Stockebrand-Shaw contest was tried first. The ballots were produced and counted. In the course of the count, several persons whose capacity and integrity are not questioned, handled the ballots, inspected them, and noted the markings. In the present contest the number of ballots cast and counted by the election boards was shown by correspondence in number of the ballots on the strings from the various election precincts with the number shown by the official returns. The persons who had observed and noted the ballot markings in the first contest gave testimony describing the markings. This testimony disclosed that some 220 illegal ballots were cast and counted at the election.
A witness who was present when the ballots were counted in the Stockebrand-Shaw contest kept count of the ballots for Bell in one ward of one city. Her testimony was offered to prove that the actual number of votes Bell received in that ward was 135, while the official returns showed he received 172. This testimony was rejected by the contest court.
The theory of the contest court was announced whefi the evidence relating to illegal ballots was admitted:'
“For the purpose of completing the records, the court’s decision is, that they are going to allow the testimony to be heard at the present. However, it is the theory of this court that it is not the best evidence. That there was a written record in the contest court wherein Ed Stockebrand was contestor and Dick Shaw was contestee which speaks for itself and is the best evidence. That it is the further theory of this contest court that each case must be settled and determined under the best-evidence rule, and taking into consideration the fact that had there been no contest between Mr. Stockebrand and Mr. Shaw, that this evidence would not be available to Mr. Woodruff as contestor in this case.”
The theory dominated the action of the contest court throughout the proceeding and was quite fantastic.
The return of the election officials was that Bell was elected. That return was prima facie correct. Whether the return was correct or not could be established by a correct count of legal ballots, the best evidence on the subject. Woodruff could not, however, call for production and count of the ballots in the first instance. He was obliged to make a preliminary showing sufficient to overcome the presumption the official return was correct. (Free v. Wood, 137 Kan. 939, 22 P. 2d 978.)
Woodruff produced evidence that the official count could not be correct, because a large number of illegal ballots had been counted. While this evidence was admitted, the contest court told Woodruff, in effect, the evidence was incompetent, because it was not the best evidence. ' Then Woodruff produced a witness whose testimony would have shown an irregularity sufficient to change the result of the election. The contest court would not hear the witness, on the ground she was not competent, a variation of the not-the-best-evidence theory. The so-called best evidence which the contest court had in mind was the record in the Stockebrand-Shaw contest. Woodruff was not a party, to that proceeding. That proceeding did not involve the issue in Woodruff’s contest, did not determine the issue in Woodruff’s contest, and no matter what it determined, it did not bind Woodruff. Woodruff did not question the verity of that record. He did not seek to prove it nor to disprove it, to contradict it, nor to explain it, because it established nothing against him. In making that record, certain material objects were exposed to view, having physical characteristics capable of accurate oral description. The characteristics denoted legal consequences; but whether, in the first contest, legal ballots were thrown out or ■counted, whether illegal ballots were counted or thrown out, whether the count was correct or incorrect, whether Stockebrand or Shaw was elected county clerk, was of no importance to Woodruff, or to the contest court in Woodruff’s contest. The result is that in the second contest persons who, from their observation, were able to describe the ballots, should have been permitted to do so.
The principle involved was stated and applied in the case of State v. Tabor, 63 Kan. 542, 66 Pac. 237. The syllabus reads:
“A county attorney trying a criminal case is not incompetent by statute, or legal policy, to testify in behalf of the defendant as to contradictory statements made by one of the state’s witnesses on a former trial of the case.”
While the testimony was offered for purpose of impeachment and a claim of privilege was discussed, the court said, in effect, that if, after a trial, it should become material to know what a witness said at the trial, anyone who heard the testimony could be required to give his recollection of it. So, if it should be material after a trial to know the appearance of an object which was exhibited at the trial, anyone who observed its appearance would be competent to give his description of it.
The district court announced it sat as an appellate court. What the court did shows what was meant. The court sat precisely as if the contest came to it by the obsolete method of writ of error, and sat as an appellate court such as this court, which expounds the law and corrects errors in proceedings of inferior courts, but does not try cases de novo.
The word “appeal” is used in a general sense to indicate simply the taking of a case from an inferior court to a superior court. The word is also used to indicate a specific method of taking a case from an inferior to a superior court — appeal as distinguished from .writ of error, certiorari, etc. The word “appellate” has a general meaning, and it has a specific meaning indicating the distinction between original jurisdiction and appellate jurisdiction. In this state there is but one way to take a case from an inferior court to a superior court:
“All reviews of the judgments and orders of inferior courts shall be by appeal. Petitions in error are abolished.” (R. S. 60-3304.)
Before enactment of this statute in 1909, a proceeding in error took up nothing but questions of law for review. An appeal removed the entire cause, the facts as well as the law, for reexamination, if the appellate court had jurisdiction to try de novo. An appeal still does that. This court cannot try de novo, because of limitation of jurisdiction. The district court is a court of general jurisdiction, and whenever a case is appealed to the district court it should proceed as if the case originated there, unless some specific statute provides otherwise. R. S. 60-3308, cited by the contestee, relates to manner of taking appeals and not to jurisdiction of the appellate court after an appeal has been perfected.
The contestee calls attention to the fact the contestor filed no motion for new trial. The fact is immaterial because of the peculiar manner in which the district court considered and disposed of the case.
The judgment of the district court is reversed, and the cause is remanded for trial.
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The opinion of the court was delivered by
Hutchison, J.:
The question here involved is the right of the defendants to meet and cover the claim of the plaintiff, at this time not resisted, with a set-off in the form of damages for the conversion by the plaintiff of property belonging to these defendants. The case was tried to the court with a reference to a jury of the question of ownership of the property in dispute and the value thereof. The jury found that the defendants were the owners of the property, and fixed the value thereof, which the trial court approved, and the court further found for the defendants on the questions of estoppel, lien created by application for bond, and invalidity of an execution in an attachment action, allowing the set-off, which exceeded in amount the claim of the plaintiff, and then rendered judgment for defendants for costs, from which judgment the plaintiff appeals.
The action was brought by a bonding company to recover from the defendants, who were president and vice president of the National Paving Company, for the loss sustained by the bonding company as surety on the maintenance bond given by the paving company to the city of Oklahoma City. Two other bonds were executed by the same bonding company to the same city on the same paving contract, one a statutory bond and the other one against liens. On the latter the plaintiff was required to pay large sums, and after paying them brought suit in Oklahoma against the paving company, attaching the property in question. It ultimately sold the property upon execution in that action and applied the proceeds on its judgment against the paving company. This is referred to as the attachment suit, concerning which the trial court in this case held the judgment to be absolutely void for want of jurisdiction.
It is apparent that if there is merit to either of the contentions of the appellant as to estoppel or lien created by application for bond it will not be necessary to determine the validity or invalidity of the judgment in the attachment action.
This case was here before, and the decision is reported in 123 Kansas at page 502. The points therein decided were attacks made by the defendants on the claim of the plaintiff, and the case was remanded for further trial upon the question of the set-off claimed by the defendants, the court saying on page 506: “Respecting the contention of the defendants that the plaintiff has received credits sufficient to relieve defendants of liability in this action, the record is not entirely clear.”
The contention of the defendants in both trials was that they were in fact the owners of the paving plant and equipment being used and operated by the paving company of which they were the president and vice president, and that they had agreed to sell this equipment to the company when the company was able to pay for it, but nothing was ever paid; that the plaintiff, through the void proceedings in the attachment suit, wrongfully converted this property to its own use, and that these defendants should be allowed to recover from the plaintiff the value of the plant as a set-off to the claim held against them by the plaintiff. The trial court, in- its twenty-second finding of fact, found that defendant Stingley, as president of the paving company, in the application of the company for this maintenance bond, represented that the paving company was the owner of the paving machinery, equipment and plant; that such written statement was made by him in good faith and without any intention to misrepresent the actual fact of ownership; and that the bonding company relied upon such statement, and on the strength thereof and of other -statements contained in the application, executed the maintenance bond. The trial court also found, in its fourth conclusion of law, that neither of the defendants were estopped from claiming title to the paving plant and machinery sold by plaintiff in the attachment action. This conclusion is vigorously supported and maintained by appellees, largely upon the finding that the representations made as to ownership were made in good faith and without any intention to mislead or deceive the bonding company. Appellees cite numerous cases sustaining that theory and, without attempting to analyze or distinguish them except to observe that in many of them the element of fraud was being urged, we refer to and quote the first paragraph of the syllabus of one of them and the fourth paragraph of another:
“Where false representations are made by a vendor in the sale of property, the application of the doctrine of equitable estoppel does not necessarily depend upon the knowledge of the vendor of the falsity of the representations, but may rest upon the principle that one who by representing that a certain state of facts exists has misled another is precluded from denying the truth of such representations and from setting up a claim inconsistent with the facts as represented, where such claim would result in loss to the other and operate as a fraud upon him.” (Westerman v. Corder, 86 Kan. 239, syl. ¶ 1, 119 Pac. 868.)
“In this state, false statements of fact, made by a seller to induce a sale and relied on by the buyer, are actionable, without regard to1 whether or not the seller knew the statements to be false’ or acted recklessly in making them, or intended to deceive.” (Bice v. Nelson, 105 Kan. 23, syl. ¶ 4, 180 Pac. 206.)
“Except in the case of an estoppel affecting the title to land the rule, which in many cases is laid down apparently without qualification, that an estoppel must possess an element of fraud, does not mean that there should be an actual fraudulent intent or design to deceive on the part of the party sought to be estopped, but only that the case should be one in which the circumstances and conduct would render it a fraud for the party to deny what he had previously induced or suffered another to believe and take action upon.” (21 C. J. 1122. See, also, Becker v. McKinnie, 106 Kan. 426, 186 Pac. 496; Pellette v. Mann, 116 Kan. 16, 225 Pac. 1067.)
This statement, being signed by defendant Stingley as president and sworn to by him, binds him individually just as much as the company he was representing.
“Where upon the death intestate of the owner of a real-estate mortgage an order is made by the probate court appointing his widow as administratrix, and with her consent a further order is made that she release such mortgage on the ground that at the time of its execution the parties agreed that it was not to' be enforced after his death, although such proceedings prove utterly void because taken in the wrong county she cannot, after undertaking to release such mortgage on the record as administratrix, assert a right in her own behalf thereunder against one who purchases the land covered thereby in reliance upon such transaction.” (Anderson v. Walter, 78 Kan. 781, syl. ¶ 2, 99 Pac. 270.)
As far as defendant Stingley is concerned, having made a sworn statement that the paving company was the owner of the plant in order to induce the plaintiff to execute the maintenance bond, and the bond having been executed by the company relying upon such statement, he is now as a matter of law precluded from denying the truth of such sworn statement and from setting up a claim inconsistent therewith when such statement will result in a loss to the bonding company. But appellees say there was no loss to the plaintiff; that it got the property and it made no difference who owned it. If the defendants were here admitting the ownership of the property in question to have been in the paving company, their defense of wrongful conversion would not last very long; and if it is all the same regardless of who might have owned the property, could the paving company have made this defense of wrongful conversion? The difference it does make, and just what appellees are seeking to enforce, is a liability on the part of the plaintiff to make good any property taken by it which belonged to others from whom it may have had no right to take the property. Can it be said that it makes no difference- when one takes out of a garage a car by mistake exactly like his own and disposes of it as his own? The difference is in the duty of making good to the real owner for the loss he has suffered. This conclusion applies only to defendant Stingley, who made the financial statement, and does not, we think, estop defendant Peak, who did not sign the statement, nor even see it; but both defendants, as well as the paving company, signed the application for the maintenance bond, which contained some provisions with reference to this property and the rights of the bonding company to have a lien on it and appropriate it to pay any of the obligations of the paving company to the bonding company, regardless of whether it belonged to the paving company or either of these two defendants individually.
The following is a portion of section 8 of the application for the maintenance bond, which was attached to the amended petition herein as an exhibit and introduced in evidence by the plaintiff on the trial :
“For the better protection of the company, and in further consideration of the execution of the bond herein and hereby applied for, the undersigned, as of the date hereof, hereby sell, assign, transfer and convey to the company, all the right, title and interest -of the undersigned, and each of them, in and to all the tools, plant, equipment and materials of every nature and description, that the undersigned, or either of them, may now or hereafter have upon the work covered by the contract, or in or about the site thereof, including, as well, materials purchased for or chargeable to said contract which may be in process of construction, or in storage elsewhere, or in transportation to said site, and hereby authorize and empower the company, its authorized agents or attorneys, to enter upon and take possession of said tools, plant, equipment and materials, and enforce and enjoy such possession at any time, for its own special use and benefit, upon the following conditions, to wit:
“This sale, transfer and assignment shall be and remain in full force and effect as to the date hereof, and shall bé and continue in full force and effect until the final completion of the contract, and of any other contract covered by a bond of the company, given for or at the request of the undersigned, or either of them, and until final settlement of all matters growing out of any such contracts; and the company shall, in the event of any loss or default, have full right to sell and convey the whole or any part of the property hereby sold and assigned to make good any loss or expense incurred or to be incurred by it by reason of the execution of the bond herein and hereby applied for, or any other bond given for or at the request of the undersigned or either of them.”
Whatever right or interest either of these two defendants ever had in such property, they effectually by this application conveyed or pledged it to the plaintiff herein, creating a lien thereon as between them and the bonding company as effectually as if they had regularly executed a chattel mortgage describing the property and had recorded it. This very action is to recover from them the liability which they as sureties agreed in-the application they would pay, and they supported such agreement with a pledge or mortgage on all their right, title and interest in the property in question. Can they, after signing such a document and without first satisfying such obligation, be heard to say they are the owners of the property and have never parted with any of their interest in it? We think not, and think they are both estopped and precluded from maintaining an attitude with respect to this property inconsistent with that which they used to persuade this plaintiff to execute the . bond for their benefit. The doctrine of equitable estoppel applies where parties owe a duty to others who have complied with their' request by reason of representations and promises, and that duty with reference to pledges or collateral security is to first pay or satisfy the liability for which they obligated themselves. This duty is forcibly stated by Judge Brewer in the case of Hamlyn v. Boulter, 15 Kan. 376, as follows:
“Where B., being indebted on several judgments before a justice of the peace, procures H. to become surety for a stay of execution on said judgments, and to indemnify him gives a chattel mortgage on certain personal property, which mortgage expressly provides that H. shall have the exclusive control of the goods, shall sell them, and receive the proceeds, until he is fully repaid or otherwise indemnified, held, that judgment in favor of B. for the value of a portion of said goods should be reversed, where the findings fail to show that the judgments have been paid, and do show that H. has not realized enough from the sale of the goods to protect himself.” (Syl.)
“No action, therefore, could be maintained against him for the conversion of the goods, or for the value of any portion of them, until he had been fully repaid or indemnified, either by a sale of the goods or otherwise.” (p. 378.)
It is contended that estoppel was not sufficiently pleaded and that the matter of lien created by the application was not before' the trial court. Section 5 of the second amended reply, we think, is sufficient to make this an issue in the case when not attacked by motion or objection. On page 26 of appellant’s abstract, section 8 of the application was offered in evidence, and it was before the trial court for consideration as to its legal effect, both for estoppel and the creation of a lien. The details of the disposal of this property pledged or mortgaged to the plaintiff are not of vital concern since such broad latitude was given the plaintiff in the application above quoted. The fact that it was disposed of through the court, even though that proceeding may have been void, will not disturb the rights of the plaintiff, under the terms of the. application, to avail itself of the proceeds of the property sold and disposed of in good faith.
“Parties to a chattel mortgage, or other instrument in the nature of a chattel mortgage, may insert therein stipulations that upon conditions broken the mortgaged property shall be disposed of in a manner different from that named in § 17 of the chattel-mortgage act.
“Where, after condition broken, the chattel mortgagee takes possession of the mortgaged property and disposes of it in the very manner prescribed in such stipulations, and acts in good faith and with reasonable care and diligence, he is liable for only the actual proceeds of such disposition, and is not chargeable with the value of the property at the time and place it was taken possession of by him.” (Denny v. Van Dusen, Adm’r, 27 Kan. 437, syl. ¶¶ 1, 2.)
The added details of form and ceremony beyond what was required by the terms of the application would not prejudice the rights of interested parties, even if some of such details were void.
The judgment of the district court is reversed and the cause is remanded with direction to enter judgment for plaintiff for the amount shown by the findings and conclusions to be due it with interest.
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The opinion of the court was delivered by
Johnston, C. J.:
This proceeding was brought to recover compensation under the former compensation act, R. S. 44-501 to 44-547. Roy Welden was an employee of the Edgar Zinc Company, and in the course of his employment sustained an injury by falling from the side of a coal car on his head and shoulders. The parties, who were operating under the compensation law, mutually agreed to submit the claim for compensation to a designated arbitrator, and stipulated that the arbitrator should find from evidence whether Welden is suffering from the result of an injury arising out of his employment; the character and quality of any disability suffered; whether or not any amount is due Welden as compensation; the probable period over which payments of compensation are to be made, and whether the proper notice and demands have been made for compensation. A hearing was had before the arbitrator upon evidence produced by the parties, only part of which is preserved in the record of this appeal, and findings were made on the questions submitted.
The material part of his findings is that not being satisfied with the evidence presented, he appointed two physicians to make an examination of plaintiff, particularly as to the condition of his ear and of the nature and extent of the injuries to his arm and shoulder. An examination was made by the physicians appointed, vpho made reports which were filed with the arbitrator, but these-reports are not included in the record presented here. It was found that Welden was in- the employ of the defendant when the injury was sustained, that while so employed he fell a distance of about nine feet from the side of a coal car, striking on the right side of his head and shoulder on the bed of the railroad, which resulted in a slight cut near the ear and right side of his head; that he had been previously in good health; that at the time he was receiving wages of $3.05 per day; that on account of his injury he was sent to the doctor who treated him from June 9,1925, to June 24,1925, when he returned to work, and continued work until.about August 1, 1925, when he again stopped work and was treated by the doctor until about September 1, 1925. Then he returned to work for the company and continued until he left the service on October 25, 1927. That shortly after the injury he complained of the loss of hearing in his right ear and he is now practically deaf in that ear; but it was found from the evidence that the deafness was not due to the injury, but had arisen wholly from other causes. The arbitrator found that plaintiff did suffer an injury to his right shoulder and arm as the result of his fall, so that there is a partial loss of the sense of feeling in the lower half of his right arm, and to a certain extent grip in that hand is affected. There was a finding that while Welden had continued at work for the plaintiff from September 1, 1925, until October 25, 1927, he did this with some discomfort and with more or less pain, but it was further found that the injury to the arm is not permanent, and that the condition of the arm will improve.
There was a finding that plaintiff was wholly disabled from performing work from June 9 to June 24, 1925, and also from August 1 to September 1, 1925, and that he has been paid in full for those periods; and further, that since the last date he has been employed at the same character of labor and was paid the same wages received by him- before the injury, though done with some pain and inconvenience, and was therefore not entitled to compensation during that period. It was further found, that since October 25, 1927, the claimant has been able to earn the sum of $8.30 per week, and that he will be able to earn that amount per week for a period of 120 weeks from the date named, after which it is found that his disability will cease and he will be able to earn the amount he was receiving at the time of his injury. There was a finding that during the period of 120 weeks he was entitled to be paid at the rate of sixty per cent of the difference between the amount earned before the injury and that earned during the disability, to wit, the sum of $6 per week; that from October 25, 1927, to January 24, 1928, a period of thirteen weeks, he was entitled to be paid the lump sum of $78, and that beginning January 1,1928, for a period of 107 weeks he was entitled to be paid at the rate of $6 per week; after that time it was found that his compensation should cease.
The report of the arbitrator was presented by the plaintiff to the district court for a review upon the claim that the award was grossly inadequate, and that court after a full hearing determined that no grounds existed for a modification of the award or fof a review of the action of the arbitrator. In this appeal the plaintiff insists that a larger compensation should have been allowed. The questions in dispute as to the nature and extent of the injury, the temporary or permanent character of it and all other questions of fact submitted were considered by the arbitrator, and his findings are binding in the absence of fraud, undue influence, serious misconduct or gross inadequacy of the award. (Guison v. Hamilton Coal Co., 120 Kan. 329, 243 Pac. 301, and cases cited.) The record does not show grounds for the limited review which is provided in the statute. The only one claimed by plaintiff as we have seen was inadequacy of the award. The findings show the wages plaintiff was receiving when he was injured, the time he was totally disabled immediately after the injury, and further that full compensation for that time had already been paid. It was found that otherwise the disability was temporary, and the right to compensation would cease at a certain time, and that during the intervening time plaintiff was entitled to and was awarded compensation within the rules of the statute by which compensation is measured.
We conclude that no ground for a modification of the award was shown. No claim is made that it was obtained by fraud or undue influence nor that the arbitrator was guilty of serious misconduct, but as .shown his only complaint.is the inadequacy of the amount awarded. That involved the nature and extent of the injury for which compensation should be paid, which are questions of fact for the determination of the arbitrator. It has been said that:
“Where the arbitrator has in good faith made a finding of fact based upon conflicting testimony, the court is not warranted in setting the award aside even if it might have come to a different conclusion than was reached by the arbitrator upon such evidence. As held in Kinzer v. Gas Co., 110 Kan. 574, 204 Pac. 999, the fact having been determined by the arbitrator upon sufficient evidence, his finding cannot be set aside without a showing of flagrant inadequacy which warrants an inference of unfairness or misconduct.” (Albertsen v. Swift & Co., 117 Kan. 337, 230 Pac. 1057.)
Nothing appears in the evidence or findings to warrant a holding that the proceedings of the arbitrator were open to review on the ground of gross inadequacy of the award.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to quiet his title to a quarter section of land in Reno county. The Central Trust Company disclaimed any interest therein. The Equitable Life As surance Society filed an answer and cross-petition in which it set up a mortgage on the real property executed by Levi Rayl, the father of the plaintiff, and asked for foreclosure of the mortgage. Judgment was rendered in favor of the plaintiff, and the Equitable Life Assurance Society appeals. There were a number of defendants in the action, but the Equitable Life Assurance Society is the only one of them which is now interested in the controversy.
The plaintiff in his petition alleged that the real property had been given to him by Levi Rayl, his father, under an arrangement which had been made with Julia Ann Rayl, the mother of Levi Rayl, by which Levi Rayl agreed with Julia Ann Rayl that upon her death he would purchase from the other heirs of Julia Ann Rayl their interest in the real property and give -the same to the plaintiff. The petition alleged that Levi Rayl, to carry out the arrangement with Julia Ann Rayl, verbally gave the property to the plaintiff, and that the plaintiff entered into possession of the property and afterward constructed valuable improvements thereon. The petition also alleged that five years after plaintiff had accepted the gift and taken possession of the property, and more than two years after the plaintiff had made the improvements thereon, Levi Rayl, without the knowledge or consent of the plaintiff, executed to the Central Mortgage Trust Company of Topeka a mortgage on the land, and that the mortgage, which had been assigned to the Equitable Life Assurance Society, was null and void. That mortgage the Equitable Life Assurance Society seeks to foreclose in this action.
The judgment recites:
“In this case the court finds for the plaintiff, as to my mind the evidence is clear and convincing on the part of the plaintiff that his father, Levi Rayl, intended to and did give to him the quarter section of land in controversy, and always considered and treated it as his property, although the father retained title in himself. I also find that this particular quarter was bought by the father from his mother’s estate under an agreement with his mother and understood by the rest of the family, that he would purchase it and give it to the plaintiff. . . .
“I think the evidence is conclusive of the gift, delivery of possession and the expenditure of money and improvements relying upon and under and by virtue of said possession.”
■ Appellant argues that there was no competent evidence to show' that there had been a gift of the land by Levi Rayl to the plaintiff nor to show the terms of the gift. There was evidence which tended to prove that Levi Rayl, before Julia Ann Rayl executed her will, promised her that he would buy the interest of each of the other heirs of Julia Ann Rayl in the real property in controversy and give that property to the plaintiff; that Levi Rayl purchased the interest of the other heirs of Julia Ann Rayl in that property; that the plaintiff entered into the possession of the property; that he desired to erect a house thereon; that Levi Rayl told his daughter, .a sister of the plaintiff, to go to the latter and tell him that the property was his, and later told the daughter to tell the plaintiff that he could erect a house thereon; that the daughter communicated those messages to the plaintiff; that Levi Rayl had on a number of occasions and to a number of persons stated that the property was owned by the plaintiff and he could do as he pleased with it; and that Levi Rayl had stated he had no interest in it. The evidence showed that the plaintiff was subject to call for service in the World War, and that in an effort to' secure a deferred classification for that service both he and his father stated in affidavits filed by them that the plaintiff owned the property in controversy and was farming it. That was done before the mortgage held by the appellant had been executed.
There was no evidence to show that the father had ever said to his son, the plaintiff, “I give'you this land,” or any other words to that effect. That brings this case within the rule declared in Nash v. Harrington, 110 Kan. 636, 205 Pac. 354, where this court said:
“The record examined, and held that the evidence is insufficient to supply the requisite and essential elements of a parol contract between a father and daughter for the devise or conveyance of 80 acres of land.” (Syl. If 1.)
The court in that case, to show on what the conclusion reached was based, also said:
“This court would cheerfully affirm this judgment, for there is no doubt of Johanna’s merits and deserts, but counsel for Agnes have the right to insist, before the judgment against her can stand, that the essentials of a contract between Johanna'and her father be first established. This, we confess, baffles us. Counsel for the appellee seek to assist us in this perplexing dilemma. To do so, they quote from the abstract:
“ ‘Dan Casey [witness]: It was about Christmas time in 1894. Mr. Harrington said he really didn’t know how he would have got through the hard years if it had not been for her helping him; that he would have lost his home. And he said, I will never forget Johanna, and I have promised, and I will divide my property equally between my two girls, and Johanna will get the eighty acres of school land, which is the way he described it. Said she had sent him money; if it had not been for Johanna he would have lost his home. We got to talking about the girls, and he got to talking about his property, and he said he was going to do for the girls just what they done for him, especially Johanna.. He was going to divide his property with her and Ag.“ And he told me that not once, but several times. She had done for him, and he would do for her, and that he would divide with these girls. She worked for him, and he would divide up for her like she done for him; and he also said she stayed with him — if it hadn’t been for her he couldn’t have stayed there at all. He told me that Johanna sent him money.’
“ ‘Flora Kleinneger [witness]: One of the times when I was visiting at the home of Timothy F. Harrington, he told me the two girls should share equally in the will with the exception of Johanna Nash. She should have the school land, as that was already hers. . . . He further stated to me at that time had it not been for Johanna Nash he would have lost all of his property, for she was the one that went out and tided him over the poor seasons. . . . He spoke about the school land and he slated to me that the two girls, meaning Johanna Nash and Agnes Harrington, to share equally under his will with the exception that the school land should all be Johanna’s that was already hers.’
“There was much of this sort of testimon3f, but does that prove an agreement between two parties which may be enforced in equity? We think not. It merely shows how greatly Harrington appreciated his daughters, and 3vhat, at those particular times, were his intentions towards them. . . .
“In the cases where oral contracts for the conveyance of land have been upheld by this court, it will be found that there was evidence tending to prove the primary facts constituting the contract. Once some such evidence was forthcoming, then such testimony as that of the witnesses Casey and Kleinneger, quoted above, would perform the valuable function of reinforcement or corroboration, by showing that the evidence to support the main proposition was true. But the testimony of Casey and Kleinneger (and the other testimony to the same effect) is corroborative of what? Nothing, because of an utter want of the matter of prime importance — some evidence that Johanna and her father made the contract relied on. The evidence to prove the contract need not be direct, but it must, in sum, be established by clear and satisfactory proof.”
More might be quoted from that case, but it would unnecessarily lengthen this opinion.
The judgment is reversed because the evidence was not sufficient to show that a gift had been made. The trial court is directed to render judgment in favor of the Equitable Life Assurance Society, foreclosing the mortgage held by it.
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The opinion of the court was delivered by
Wedell, J.:
This was an action for specific performance of a written contract or for damages in the alternative.
Defendant appeals from adverse rulings on motions and demurrers to plaintiffs’ respective petitions. Three petitions were filed. Defendant lodged against the original petition a motion to strike a certain portion thereof, which was overruled. That portion of the petition remained in the amended petitions and will be treated later. A motion to make the original petition definite and certain was sustained in part and overruled in part. Against each of the first and second amended petitions defendant leveled a motion to separately state and number the alleged causes of action for specific performance and damages, and also demurred to the amended petitions as a whole, and separately to each cause of action attempted to be pleaded for equitable and legal relief, on the ground no cause of action was stated for either form of relief. These motions and demurrers were overruled. Defendant appeals from each and all of the above adverse rulings. Space does not permit setting out three petitions. Proper treatment of the various contentions, however, requires a full copy of the last amended petition and contract. They are appended to and made a part of this opinion.
We shall first consider the overruling on the respective motions. It has been frequently held motions to strike, to make definite and certain and to separately state and number, rest in the sound discretion of the trial court from which rulings ordinarily an appeal does not lie. Unless it is shown such alleged error prejudiced the substantial rights of a party it will not be reversed. (R. S. 60-760; R. S. 60-3317; Hamilton v. Railway Co., 95 Kan. 353, 148 Pac. 648; Cribb v. Hudson, 99 Kan. 65, 160 Pac. 1019; Mullarky v. Manker, 102 Kan. 92, 170 Pac. 31; Hickman v. Cave, 115 Kan. 701, 703, 224 Pac. 57; Van Deren v. Heineke & Co., 122 Kan. 215, 218, 252 Pac. 459; Allison v. Borer, 131 Kan. 699, 293 Pac. 769.)
Defendant moved to strike all that portion of the original petition which in substance is now contained in the second amended petition in paragraph one between the words “Montgomery Ward & Company,” to and including the words “and to evidence such agreement.” The motion was on the ground those allegations were immaterial, argumentative, redundant and prejudicial. When a pleading is subject to such complaint a motion to strike should be sustained. It does not here appear the ruling would prejudice the defense. The ruling was in the discretion of the trial court, and its effect is not of such gravity as to justify a reversal. (Hickman v. Cave, supra.) Furthermore, the order does not affect substantial rights in the action and does not in effect determine the action. The order is therefore not appealable. (R. S. 60-3303.) See, also, Fox v. Ryan, 121 Kan. 172, 246 Pac. 520.
Defendant especially insists the court erred in not requiring plaintiff to separately state and number her alleged causes of action for specific performance and for damages. The purpose of this motion, of course, was to have the causes of action separated in order to be enabled to demur to them separately. Such separation was required prior to the amendment of the civil code in 1909 if different causes of action were in fact set out in the same pleading. That is not the rule now. (Mullarky v. Manker, supra.) The pertinent portion of R. S. 60-741 reads:
“If a pleading contains several causes of action, or different defenses, the court or judge may, in his discretion, require them to be separately stated and numbered.” (Italics inserted.)
Assuming the ruling was appealable, there is but one cause of action, and hence the trial court did not abuse its discretion. In a case of this character several forms of relief may be granted, but there is only one cause of action. (Henry v. McKittrick, 42 Kan. 485, 22 Pac. 576; Naugle v. Naugle, 89 Kan. 622, 132 Pac. 164; Knipe v. Troika, 92 Kan. 549, 553, 141 Pac. 557; New v. Smith, 94 Kan. 6, 10, 145 Pac. 880; Cribb v. Hudson, supra.)
It is proper in an action for specific performance to plead in the alternative and ask for damages for nonperformance. (Henry v. McKittrick, supra; Naugle v. Naugle, supra; Huey v. Starr, 79 Kan. 781, 786, 101 Pac. 1075; Stramel v. Hawes, 97 Kan. 120, 124, 154 Pac. 232; Cribb v. Hudson, supra; Knipe v. Troika, supra; Brush v. Boyer, 104 Kan. 168, 178 Pac. 445; Orr v. Thomas, 105 Kan. 624, 627, 185 Pac. 1046; Haston v. Citizens State Bank, 132 Kan. 767, 297 Pac. 1061.)
In Brush v. Boyer, supra, it was said:
“In actions for the specific performance of a contract it is the well-established practice to ask, in the alternative, for money damages in the event the court finds it inequitable or impossible to compel specific performance. (Naugle v. Naugle, 89 Kan. 622, 629, 630, 132 Pac. 164; Huey v. Starr, 79 Kan. 781, 101 Pac. 1075.) In all such cases the action is purely equitable and the court has power to grant full relief.” (p. 169.)
In Haston v. Citizens State Bank, supra, it was held: v
“The court, having held that the plaintiff was not entitled to the specific performance asked and having before it all the interested parties and all the evidence pertinent to the transaction out of which the controversy arose, was warranted in proceeding to determine the rights of the parties and to administer equity between them.” (Syl. If 4.)
But defendant insists the petition was deliberately framed as an equitable action with the hope damages would be awarded in the alternative when plaintiff knew there could be no recovery of a money judgment on the contract. Defendant insists there never was any question about the fact this contract would not permit a decree of specific performance. He says plaintiff well knew that from the beginning. We are not so sure about that. Defendant himself has prepared about as able a brief on the subject as it has been the pleasure of the author of this opinion to read. We also observed nothing was left untouched on this point in oral argument. It would therefore appear the question was not considered to be so simple. To us the question is not free from difficulty. Furthermore, plaintiff was entitled to refer the question of her right to specific performance to a court for determination. In Huey v. Starr, supra, it was declared:
“The court erred in holding that the correct practice in such cases is for the plaintiff to elect before beginning the trial whether he will proceed for specific performance or for damages. On the other hand, it is well recognized that in such a case the plaintiff has a right to the decision of the court upon his claim for specific performance, and if he fail to obtain that relief he may then press his claim for damages. (See Henry v. McKittrick, supra, and cases there cited.)” (p. 787.) (Italics inserted.)
In McLennan v. Church, 163 Wis. 411, 158 N. W. 73; the rule was stated thus:
“Where an action has been commenced in good faith to obtain equitable relief, and it subsequently appears that such relief cannot or ought not to be granted, but plaintiff is shown to have suffered a remediable wrong in the transaction forming the groundwork of the action, entitling him to be compensated by money damages, the court may, and where justice clearly requires it should, retain the cause and afford such relief, and makes the same efficient by providing for a recovery as in an ordinary legal action or by provisions appropriate to a judgment for equitable relief, as may be best suited to the circumstances of the particular case.
“Although the facts of a case warrant only legal relief and were known to the plaintiff when he commenced his action for equitable relief, the court may in such action grant the legal relief, where the constitutional right of trial by jury would not be unduly prejudiced.” (Syl. HH 2, 3.)
The contract presents a number of annoying and perplexing problems on the subject of specific performance. We do not deem it necessary that we decide whether the petition states a cause of action for specific performance. Assuming specific performance cannot be decreed, has plaintiff no remedy in a court of equity? Shall we say a court of justice is shorn of all power to redress a flagrant wrong? Certainly not. In Naugle v. Naugle, 89 Kan. 622, 132 Pac. 164, it was declared:
“It is familiar doctrine that a court of equity having obtained jurisdiction of the subject matter will grant alternative monetary relief if necessary and make a full settlement of the controversy. (Messer v. Hybernia Sav. etc. Society, 149 Cal. 122, 84 Pac. 835; Fry on Specific Performance, 4th ed., sections 1298-1315; Pomeroy, Specific Performance of Contracts, 2d ed., sections 469-474.)” (p. 629.)
That plaintiff will be greatly damaged unless compensated requires no argument. Defendant, however, urges in order for plaintiff to recover damages she must first plead and prove a valid contract containing the essential elements of consideration and mutuality and in addition thereto a breach of the contract. In support of this contention we are referred to Greenawalt v. Este, 40 Kan. 418, 19 Pac. 803; Fitzstephens v. Whan, 113 Kan. 650, 216 Pac. 269; Van Deren v. Heineke & Co., 122 Kan. 215, 252 Pac. 459; Brown-Crummer Investment Co. v. Amerman, 126 Kan. 340, 268 Pac. 82; Sharpless v. J. B. Kirk Gas & Smelting Co., 128 Kan. 722, 280 Pac. 788; Rawson v. Valley Center State Bank, 134 Kan. 711, 8 P. 2d 352; Shelden v. Bright, 135 Kan. 361, 10 P. 2d 831; 13 C. J. 331.
Space will not permit analysis of the facts in these cases. They support the generally well-recognized rule as stated by defendant. Some of them contain similar features to those in the instant case. In none of them, however, did the party seeking remuneration completely perform at great expense and thereby utterly change his situation, and at the same time provide the exact benefits which the contract expressly stated defendant greatly desired.
Let us now examine the contention the contract lacks consideration. We are referred to the paragraph alleging a one dollar consideration. Defendant asserts that consideration will not support a contract such as this. (13 C. J. 367; Shelden v. Bright, 135 Kan. 361, 10 P. 2d 831.) The contract must, of course, be read as a whole. There are other paragraphs which clearly import a highly valuable consideration.
“Whereas, The second party hereto is the owner of parcels of land adjoining first party’s above-mentioned parcel on said Santa Fe ave. and in the immediate vicinity thereof, and greatly desires that first party improve her said parcel, and further greatly desires that Montgomery Ward & Company establish their business on first party’s parcel of land because of the effect such improvement and such lease mil have upon the value of second party’s land, and
“Whereas, First and second parties hereto are brother and sister and have a mutual interest in the other’s property.” (Italics inserted.)
The contract clearly discloses these parties, as brother and sister, had an interest, not only in their own, but in each other’s property. Defendant owned adjoining property. He greatly desired that his sister spend the estimated sum of $40,000 on her lots to improve the value of his lots. In order to enhance the value of his lots he greatly desired that Montgomery Ward & Company establish its business adjoining his property. It is indeed difficult to understand how there could be more adequate consideration for a contract.
It is next urged the contract is wanting in mutuality, and, being unilateral, is unenforceable. We are reminded the contract did not bind the sister to build, that it simply said she was “about to undertake the construction of a two-story brick mercantile building.” It has been said the term “ ‘undertake’ may mean to lay one’s self under obligation to perform.” (65 C. J. 1209.) It was obviously the intent of the parties to obligate plaintiff to erect the building and to lease it to Montgomery Ward & Company for a five-year term, and to try to obtain another tenant in the event the first tenant failed to renew the lease, before defendant was to be obligated to perform. Plaintiff performed that obligation. She expended over $48,000 on the construction of this building. The building was to be occupied by the named tenant. In plaintiff’s obtaining that tenant defendant had a vital personal interest. Plaintiff performed. The tenant was to remain for five years. Plaintiff performed. The tenant vacated on the expiration of the lease. Plaintiff, in accordance with the terms of the contract, was to try to find a new tenant. She tried, but failed. She performed. In fact defendant obtained from plaintiff the full performance the contract required.
Defendant complains about the indefiniteness of the contract which states that she will transfer to defendant “a divided one-half interest in her property,” instead 'of an undivided one-half interest. Plaintiff offered defendant the north half, the south half or an undivided half of the property, if he would convey to her real estate in the city of Salina of the money value specified in the contract. She demanded he comply with the provisions of the contract. He refused. Whatever want of mutuality there may have been in this contract is of no consequence now. Plaintiff has executed her part of the_. contract. She has supplied everything defendant desired.
In 13 C. J. 334, 335, the rule is stated thus:
“Want of mutuality is no defense in the case of an executed contract. A promise lacking mutuality at its inception becomes binding on the promisor after performance by the promisee. But where the contract does not contain a binding promise on either side, one party cannot bind the other by tendering performance.”
Here plaintiff did not tender performance to build. She built. She performed all other requirements.
“Although there is a lack of mutuality in the beginning, this may be cured by the other party subsequently binding himself also by promise or act.” (13 C. J. 335.) (See illustration following statement of rule.)
In Electric Management & Engineering Corp. v. United P. & L. Corp., 19 F. 2d 311, it was held:
“Generally specific performance of contract will not be enforced by a court in favor of a party against whom court has no power effectually to compel its performance and who remains free to refuse its performance; but, if plaintiff has fully performed that which under- contract he was not compelled to perform, lack of mutuality of remedy cannot be urged by other party as defense.
“Requirement of mutuality of remedy, authorizing specific performance, is satisfied, if mutuality exists at time suit is filed.” (Syl. Iflf 5, 7.)
Defendant further urges that in this particular action plaintiff cannot recover a money judgment because the contract did not obligate him to pay in money. Well, the contract obligated him to pay in property of a certain definite value in money. He refuses to transfer, the property. Therefore, plaintiff asks he be compelled to transfer the property or to give her its fixed value in money. Plaintiff’s request is proper.
The petition discloses plaintiff requested certain reformation of the contract. The facts alleged were sufficient as against a demurrer. From what has been stated it follows the second amended petition stated a cause of action for alternative monetary relief. The demurrer was therefore properly overruled. The judgment is affirmed.
Burch, C. J., not sitting.
SECOND AMENDED PETITION
1. The plaintiff alleges that she is a resident of the city of Salina, Kan., and that place is her correct post-office address, that on the 29th day of February, 1928, the plaintiff was the owner, and is still the owner in fee simple, subject to the contract hereinafter mentioned, and in possession of the south half of lot eighty-three (83) and all of lot eighty-five (85) on Santa Fe avenue in the city of Salina, Kan., and said property then had a value of thirty-six thousand dollars ($36,000), and the defendant then owned and still owns in close proximity to said real estate so owned by plaintiff and on the same street and in the same block the following-described real estate: The south half of lot eighty-one (81), the north half of lot eighty-three (83) and the north half of lot eighty-nine (89), and at the commencement of this action the defendant also owned and still owns lot seventy (70) on seventh street and at the date of the making of the contract hereinafter mentioned Montgomery Ward & Company, of Chicago, 111., was intending to locate one of its stores in the city oí Salina for the retailing of its merchandise and said company had proposed that if plaintiff would remove the buildings then upon said real estate and improve said real estate by the erection of a new two-story brick mercantile building thereon costing not less than forty thousand dollars that said company would lease said real estate so improved for a term of five years, but plaintiff declined to entertain said proposition or to execute a lease for a period of five years only and the defendant realizing and well knowing that the erection of said building upon said real estate and the locating of a store by said company upon plaintiff’s said real estate would be of great benefit to him and would greatly enhance the value of his own property then orally proposed to the plaintiff in substance that if she would make such improvements of her real estate as desired by said company and would execute a lease to said company of her real estate so improved for a term of five years from and after July 1, 1928, that at the expiration of said lease on July 1, 1933, if said Montgomery Ward & Company did not renew said lease or if plaintiff was unable to find a tenant for said property satisfactory to her then in that event or events defendant on her demand would convey to her real estate in the city of Salina, Kan., of a cash value equal to one half the value of her said real estate and then fixed by plaintiff and defendant at thirty-six thousand dollars plus one half the cost of said building by them estimated to cost not less than forty thousand in consideration of which and upon the payment of one half the value of said real estate so fixed and one half the cost of said building plaintiff agreed to convey to defendant a divided one half of the property so improved, and to evidence such agreement then made said plaintiff and defendant entered into a contract in writing dated February 29, 1928, a copy of which is hereto attached marked “Exhibit A” and made a part hereof. But plaintiff avers that in reducing said contract to writing the scrivener employed by them for that purpose, by mistake, erroneously stated in lines ten and eleven on the first page of said contract the words “which said building and lots first party hereto has leased and let to Montgomery Ward & Company of Chicago, 111.,” whereas it should have been stated in conformity to their oral agreement then made that “said building if erected and lots first party can lease and let to Montgomery Ward & Company of Chicago, 111.,” or words of like import, and in line nine on page two of said contract said scrivener, by mistake, erroneously used the words “lease heretofore entered into” when he should have written in place thereof “to be entered into” or words of like import, in order that the contract as written may conform- to the agreement and understanding of the parties then made and said agreement should be reformed accordingly.
2. This plaintiff further alleges that by said agreement so made and consummated and relying thereon and without notice of the errors therein as stated she was induced to and did on the 10th day of March, 1928, execute and deliver to said company a lease of her real estate expiring July 1, 1933, and did thereafter commence and complete the construction of a two-story brick mercantile building with a frontage of seventy-five (75) feet on Santa Fe avenue and one hundred ten (110) feet in depth covering the south half of said lot eighty-three (83) and all of lot eighty-five (85) on Santa Fe avenue in said city of Salina, Kan., costing forty-eight thousand one hundred ten dollars and seventy-four cents ($48,110.74), and she did put said company as tenant in possession of said demised premises so improved under said lease, and at the expiration of said lease said tenant vacated said demised premises and failed and refused to renew said lease or release said premises or longer occupy said building, and said building has since remained vacant and unoccupied notwithstanding the plaintiff at all times since July 1, 1933, until the commencement of this action has diligently endeavored to find another tenant for said building satisfactory to her, but without success.
3. This plaintiff further avers and says that she would not have executed said lease nor erected said building but for the agreement made with the defendant as mentioned herein and that she fully kept and performed on her part all the conditions of said agreement so made and at all times since the expiration of said lease she has been ready and is still ready, able and willing to convey to the defendant one half of said property so improved on his conveyance to her of real estate in the city of Salina, Kan., of a cash value equal to one half the value of her said real estate as fixed by said contract and one half the cost of said building in conformity to the terms of said contract, and she further alleges that prior to the commencement of this action the plaintiff and her husband duly tendered to defendant a warranty deed for the north thirty-seven and a half feet of said property which adjoined improved property owned by him which he refused to accept and plaintiff at the same time orally offered to convey to him the south thirty-seven and a half feet of said property or an undivided one half of said property if he would convey to her real estate in the city of Salina to the extent specified in said contract and plaintiff has repeatedly and orally made demand upon the defendant to perform said contract on his part and to convey to her real estate in the city of Salina to the extent and of the value as specified in said contract and defendant then refused to accept such conveyance or any conveyance from the plaintiff of any part of said real estate and at all times since has continued to refuse to make any conveyance of real estate to the plaintiff or perform the obligations of said contract on his part, but on the contrary he attempted and still attempts to repudiate said contract on his part and denies any and all liability to fulfill its obligations and sets up and claims that said contract has no validity.
4. This plaintiff further says that said contract so executed omits to provide a plan or method of determining the cash value of the real estate to be conveyed by defendant in payment and satisfaction of one half the value of plaintiff’s real estate and the erection of said building as fixed by said contract and one half the cost of the building erected, but plaintiff is advised and alleges the fact to be that in such circumstances this court has ample power to prescribe its own method of fixing the cash value of the real estate which defendant may be compelled to convey in payment of said sums of money to be discharged and plaintiff consents that such value may be determined by any three disinterested persons residing in Salina or by any qualified master the court may appoint for that purpose such value to be fixed as of the date of the commencement of this action or any date after the expiration of said lease as the court may find it became the duty of the defendant to make the conveyance provided for in said contract.
5. This plaintiff further alleges that after the execution of said lease and the erection of said building said real estate became greatly decreased in value and the market value thereof at the expiration of said lease and at all times since does not exceed forty thousand dollars and if defendant is not compelled to keep and perform his said contract with this plaintiff she will suffer damage by reason thereof in a sum not less than forty-two thousand and fifty-five dollars ($42,055).
6. Wherefore, plaintiff prays judgment that the agreement entered into between the said parties be reformed and be made to truly evidence the oral contract made by said parties, and that the court by proper order and decree require the defendant to immediately select the real estate in the city of Salina, Kan., he may rightfully convey to the plaintiff free of encumbrance and of a cash value of forty-two thousand and fifty-five dollars ($42,055), such value to be determined in any fair and equitable manner which the court may prescribe therefor and of such date as the court may find it became the duty of the defendant to make such conveyance under the terms of said contract and put plaintiff in possession of said real estate so conveyed and upon such performance on defendant’s part that the court decree conveyance to him of one half of the plaintiff’s real estate so improved and free and clear of all encum brance, and if such relief and specific performance of said contract be denied that plaintiff have and recover from the defendant the sum of forty-two thousand and fifty-five dollars ($42,055) with interest at six percent per annum from the commencement of this action less one half of the present market value of said real estate so improved by plaintiff and that plaintiff be decreed a lien upon all real estate owned by defendant in the city of Salina, Kan., until such judgment shall have been fully paid and that plaintiff have all other and further relief to which she is or may be entitled including costs.
AGREEMENT
“This agreement, made in duplicate on this the 29th day of February, 1928, by and between Genevieve C. Nelson, of Salina, Kan., party of the first part, and John E. Schippel, of the same place of residence, witnesseth:
“Whereas, First party hereto is the owner of the south one half (%) of lot eighty-three (83) and all of lot eighty-five (85) on Santa Fe avenue in the city of Salina, Kan., on which parcel of land first party is about to undertake the construction of a two-story brick mercantile building at an estimated cost of forty thousand dollars ($40,000), which said building and lots first party hereto has leased and let to Montgomery Ward & Company, of Chicago, 111., for the purpose of conducting therein a retail mercantile business, for the term of five years from and after July 1, 1928, and
“Whereas, The second party hereto is the owner of parcels of land adjoining first party’s above-mentioned parcel on said Santa Fe avenue, and in the immediate vicinity thereof, and gre'atly desires that first party improve her said parcel and further greatly desires that Montgomery Ward & Company establish their business on first party’s parcel of land because of the effect such improvement and such lease will have upon the value of second party’s land, and “Whereas, First and second parties hereto are brother and sister and have a mutual interest in the other’s property,
“Now, therefore, it is agreed, in consideration of one dollar ($1) this day paid by first party to second party, and in further consideration of first party’s undertaking to construct said mercantile building at an estimated cost of forty thousand dollars ($40,000), and in further consideration of love and affection, as follows:
“1. It is agreed that the ground value of the south half of lot No. 83, and of lot No. 85 on Santa Fe ave., in the city of Salina, Kan., now owned by first party, is at the date hereof thirty-six thousand dollars ($36,000), and that the value of said parcel of land after said new mercantile building is constructed shall be thirty-six thousand dollars ($36,000) plus the actual cost of construction of said building.
“2. It is agreed that at the expiration of the lease heretofore entered into between first party and Montgomery Ward & Company for the rental of said parcel of land, and the building thereon on July 1, 1933, if Montgomery Ward & Company do not renew their said lease or if first party is unable to find a tenant for said property satisfactory to her, then in that event second party, on demand, agrees to convey to first party real estate in the city of Salina, county of Saline and state of Kansas, of a cash value equal to one half (%) of the value of the parcel of land and the building thereon leased to Montgomery Ward & Company, as fixed in the preceding paragraph hereof, and it is further agreed that the said first party for the consideration herein mentioned, will transfer and deliver to second party a [warranty] deed for a divided one half (%) interest in the aforementioned parcel of land and building thereon.
“In witness whereof, We have hereunto set our hands and seals this 29th day of February, a.d. 1928. Genevieve C. Nelson. (Seal.)
John E. Schippel. (Seal.)”
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The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin the city from levying special assessments against lots in additions to the city, to pay for improvement of a street. Plaintiffs were defeated, and appeal.
The lots lie in blocks 19 and 30 of Bowles, Sheldon & Topping’s addition, and in block 3 of Sheldon’s addition. Lot owners protested against the improvement. Plats of the additions recorded in the office of the register of deeds show dimensions of the lots and blocks. A private survey of block 30 disclosed larger dimensions than the plat shows. Block 19 is the same size as block 30,- and a recent surveyor’s measurement disclosed larger dimensions for block 3 than the plat shows. If the plats control, the protest was signed by owners of less than half the property affected. If the survey and measurement control, the protest was sufficient. The court found no notice of the survey had been served on the city, and there was nothing to indicate the city had any notice of the survey other than what might be afforded by the copy of the surveyor’s report filed in the office of the register of deeds. The court stated the following conclusion of law:
“I conclude as a matter of law that the city, in the absence of actual notice, does not need to look further than the plats on file in the office of the register of deeds, to ascertain the area of property to be affected by proposed improvements,”
The statute reads as follows:
“Whenever the governing body of any city shall deem it necessary to . . . improve any street, . . . said governing body shall by resolution declare such work or improvement necessary to be done, . . . and if the resident owners of more than one-half of the property liable for taxation therefor shall not . . . file with the clerk of said city their protest against such improvement-, the governing body shall have-power to cause such . . . improvement to be made. . . . The sufficiency of said protest . . . as to the ownership of the property shall be determined by the record in the office of the register of deeds at the time of the adoption of said resolution.” (R. S. 12-602.)
Plats of city additions must accurately and particularly set forth and describe streets, alleys, and public ground, and describe all lots intended for sale by number and precise length and width. Such plats must be acknowledged as conveyances of land are acknowledged. They are not only filed in the office of the register of deeds, but are recorded there, and they operate as conveyances of streets, alleys, and tracts intended for public use. (R. S. 12-401, 12-402, 12-403, 12-406.) Surveys are recorded in the surveyor’s record of permanent surveys, and certified copies are merely filed with the register of deeds. (R. S. 19-1426.)
When a protest against a street improvement is presented, the governing body of the city must determine sufficiency of the protest. Sufficiency of the protest depends on residence, ownership and area. The record will always show ownership at the time of adoption of resolution to improve, which is the decisive time. No matter how many owners in fact there may be holding unrecorded deeds, they are not qualified to protest. The recorded plat will also show area of ownership, and this court is of the opinion the city authorities need not look beyond the record.
A private survey binds nobody but the parties to it. Jurisdiction of the city is not affected. Whether jurisdiction might be affected by some method of making the city a party to a private survey need not be considered, because in this instance the city was not notified, and had no notice other than such as might be afforded by subsequent filing of the survey. So far as the city was concerned, the survey which was filed merely disclosed measurements of the surveyor who made it. When the survey was offered in evidence at the trial, it was not conclusive evidence. (R. S. 19-1414.) Manifestly, it was not conclusive when the city undertook to improve the street. If a city were obliged to canvass private surveys, it might encounter discrepancies when undertaking to improve a street, and might be obliged to make a survey of its own to determine area. The statute undertook to provide a definite standard by which sufficiency of a protest may be readily determined. Both the city and the protesting property owners are governed by the standard, and the court holds that determination “by the record” applies to ownership of property of sufficient area to determine effectiveness of the protest.
There is a contention that the city is estopped by the fact that before it undertook to improve the street in controversy it made some other street improvements, presumably in accordance with the survey. As indicated, the city was not a party to the survey, and there is no evidence or finding that the protestants failed to obtain signatures of more property owners, relying on the city’s recognition of the survey, if it did recognize the survey.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The defendant is a licensed physician and holder of a permit from the United States revenue department to dispense narcotics. He was arrested, charged with and convicted of unlawful possession of morphine, and appeals.
Section 1 of the narcotic statute contains this language:
“It shall be unlawful for any person to keep or have in his possession or under his control for personal use or otherwise, any opium or coca leaves, or any compound, salt, derivative or preparation thereof, and such possession or control shall be presumptive evidence of a violation of this section.” (Laws 1927, ch. 241.)
There was evidence substantially to the effect that on October 18, 1927, the defendant was observed going down an alley behind a garage near his house, with a package under .his arm which had the appearance of being the inner tube of an automobile; that he stopped,, stooped over among some weeds and appeared to be scratching in the leaves; that after he had left, those who had observed him immediately investigated the place where he had stooped and found under some boards and rubbish a package consisting of a tin can inserted into a section of a rubber inner tube. In the can were a number of cubes of morphine.
The defendant contends that the statute does not condemn mere possession of narcotics by a physician; that he did not have a fair opportunity to meet the charges on which he was convicted and that the trial court-abused its discretion in assuming the role of prosecutor.
Section 2 of the narcotic statute reads in part:
“Nothing contained in this section shall apply to the dispensing or distribution of any of the aforesaid drugs to a patient by a physician, dentist or veterinary surgeon registered under the laws of the state of Kansas, in the course of his professional practice only.”
Considering only pertinent parts of the statute, it appears to be unlawful for any person to possess opium derivatives, except physicians (and certain other named classes) as “hereinafter provided.” But the act fails to provide thereafter, in express terms, how a physician may lawfully possess such drugs. The defendant argues that if there is nothing “hereinafter provided” expressly as to possession, a physician may have an unlimited quantity of narcotics in his possession for any purpose he desires, as long as he observes certain formalities in dispensing them. In our opinion this -does not follow. A legislative intent may be ascertained from an examination of the entire statute. . (36 Cyc. 1131-1183.)
Section 2 of the act further provides that it shall be unlawful for any person (whether in the excepted class or not) to have possession of narcotics unless certain federal regulations are complied with.
“Every person who shall give an order as herein provided to any other person for any of the aforesaid drugs, shall at or before the time of giving such order, make or cause to be made, a duplicate thereof, on a form to be issued in blank for that purpose by the commissioner of internal revenue, and in case of the acceptance of such order shall preserve such duplicate for said period of two years, in such a way as to be readily accessible to inspection by the officers, agents, employees and officials hereinbefore mentioned.” (Laws "1927, ch. 241, § 2.)
That is to say, physicians are excepted from the general prohibition, provided, (a) that they have complied with the federal regulations, and (b) that their possession is for use in the course of their practice only. The act provides regulations and prescribes the use of federal forms both for the obtaining and the selling or giving away of such drugs, but the exception is that “nothing contained in this section shall apply to the dispensing or distribution of any of the aforesaid drugs to a patient by a physician ... in the course of his professional practice only.” The federal regulations and forms as to dispensing and distribution of drugs are not required of physicians in the course of their practice only, but no exception is made as to the method by which physicians must obtain their narcotics. We think the following conclusions may fairly be deduced as to the legislative intent:
First: It shall be unlawful for any person to possess narcotics, except certain designated classes under certain named regulations.
Second: Certain designated classes may possess such drugs, but to do so they must comply with specific regulations, including the use of federal forms.
Third: If these regulations are complied with, physicians, as one of the excepted classes, may lawfully possess narcotics.
Fourth: But the possession by a physician, even after he has complied with the regulations and used federal forms, is not lawful unless for the purpose of use in the course of his practice.
The information charged the unlawful possession of opium derivatives. The defendant attempted to meet the charge by denying possession of the can and by showing that he was a licensed physician. The state made a prima facie case, and it then devolved upon the defendant to show some reason why he should come under an exception to the general prohibition because possession or control is presumptive evidence of a violation. Three conditions had to be met before his possession was lawful: (1) That the drug had been regularly obtained by the use of federal forms. (2) That the defendant was a licensed physician. (3) That the morphine was owned for the purpose of use in defendant’s medical practice.
The defendant attempted to prove only the second condition, and in that respect failed to rebut the presumption created by his possession. He complains that he was tried on other charges than those set out in the information. This complaint is directed at a rather extensive ci’oss-examination of the defendant, conducted largely by the court. In State v. Keehn, 85 Kan. 765, 118 Pac. 851, it was said:
“The purpose of a trial in a criminal ease is to ascertain the truth of the matters charged against the defendant, and it is a part of the business of the trial judge to see that this end is attained. He is a vital and integral factor in the discovery and elucidation of the facts, and whenever in his judgment the attorneys are not accomplishing the full development of the truth it' is not only his right, but it is his duty, to examine and cross-examine the witnesses. The presumption is that this liberty will be honorably and impartially exercised in the interest of justice, and in this case it was not abused by the trial judge.” (Syl.)
In State v. Miller, 126 Kan. 578, 270 Pac. 610 (same defendant) it was said in the opinion:
“In the enforcement of the prohibitory law the courts of this state have been compelled to accord scant charity to the old-fashioned practices of indirection, evasion and special pleading on the part of clever, shifty witnesses, especially defendants who turn advocates in their own behalf when they are on the witness stand. And no logical justification can be made to permit greater latitude for gratuitous and impertinent responses on the part of a defendant in a drug-selling charge than in a liquor case. On the power of the court to hold witnesses within bounds and develop all the pertinent facts see State v. Keehn, 85 Kan. 765, 118 Pac. 851; State v. Marshall, 95 Kan. 628, 148 Pac. 675; State v. Hanger, 108 Kan. 115, 103 Pac. 1092; State v. Ketter, 121 Kan. 516, 247 Pac. 430. See, also, Burns v. Clark, 105 Kan. 454, 185 Pac. 27; and Fowler v. Shaw, 119 Kan. 576, 240 Pac. 970.
“On the error based on the cross questions asked by the court, little need be said. Those questions were prompted by the defendant’s gratuitous and repeated avowals on the witness stand that he did not and would not conform to the law governing the disposal of morphine by physicians.” (p. 581.)'
The following testimony by the defendant in the instant case is a fair sample of how he explained to the court and jury his possession of the prohibited drugs:
“Q. Have you made any purchase of morphine since June 24, 1926? A. I don’t think I have.
“Q. You could not tell the jury whether you have or have not? A. No, sir; I don’t swear to it.
“Q. You won’t swear to it? A. No, sir.
“Q. But you will swear if that is morphine in that can that they introduced, if that is morphine you will swear that you never had any blank, any duplicate for that? A. Judge, I don’t know anything about that. Now, Judge, you can take morphine—
“Q. I am not asking you that — you will swear that you never made any duplicate for that in that can, if that is morphine, you don’t pretend to say that? A. I am not going to swear to something I don’t know; I let them have it from time to time.
“Q. You don’t mean to say that you ever let them have any of that in that can? A. No, sir.
“Q. You say that is not yours? A. I don’t know anything about that.
“Q. Can you say positively that you never had any duplicate for that? A. I have a duplicate for all the morphine I have in my possession.
“Q. You won’t answer it that way? A. If you are just going to make me say something to incriminate myself—
“Q. No, I don’t want you to do that; if you don’t want to answer the question you don’t have to answer any question, but you won’t tell this jury that you didn’t give a duplicate for that if you had it? A. I didn’t have it, and if I had it I gave a duplicate for it.
“Q. Where is the duplicate for it? A. I didn’t have it.
“Q. Therefore, you have no duplicate for it? A. I will say if I had it I had a duplicate for it.
“Q. But you haven’t presented any duplicate for it, if you had it? A. There is the duplicate of all I had; you want to try to-incriminate me.”
It can hardly be said that the jury was not justified in concluding that defendant’s possession of the narcotics was not according to the statute.
Complaint is made of the instructions; that the burden of proving his innocence was placed upon the defendant. In State v. Bell, 109 Kan. 767, 201 Pac. 1110, it was said in the opinion:
“It is of course correct that the court cannot shift the burden of proof to the defendant in a criminal case, but when the state has established a complete prima jade case against him, the defendant is under the necessity of combating that prima jade case or of incurring the risk of conviction. He can take his choice. If this be properly characterized as a shifting of the- burden of proof, it arises from the stern necessities of defendant’s predicament and not because of any arbitrary rule of law imposed on him.” (p. 771.)
In State v. Cassady, 12 Kan. 550, it was said:
“The possession of stolen property, recently after it is stolen, is prima jade evidence of guilt, and throws upon the possessor the burden of explaining such possession, and if unexplained may be sufficient of itself to warrant a conviction.” (Syl. U 5.)
(See, also, State v. McKinney, 76 Kan. 419, 91 Pac. 1068; State v. White, 76 Kan. 654, 664, 92 Pac. 829; State v. Jewell, 88 Kan. 130, 127 Pac. 608; State v. Rice, 93 Kan. 589, 144 Pac. 1016; 4 Wigmore on Evidence, §§ 2485-2513.)
It appears unnecessary to set out the instructions in full. We are of the opinion that when the entire charge is considered it fairly stated the issues to the jury. Other complaints have been considered, but we find no error which would justify reversal. The judgment is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Harvey, J.:
In this case plaintiff has appealed from an order of the court sustaining a demurrer to plaintiff’s evidence and rendering judgment for defendant in an action (under R. S. 68-301) for damages for personal injuries alleged to have been sustained by reason of negligence of the defendant in failing to have warning signs or a guard rail at a dangerous curve and grade at the .approach of a bridge on a township road.
A preliminary question is presented on appellee’s motion to dismiss the appeal. The demurrer was presented to the court on January 12,1928, and was sustained, and plaintiff was given fifteen days in which to amend her petition; and the court ordered that if plaintiff “does not amend her petition within fifteen days from the date hereof that defendant shall recover judgment for the costs of this action against said plaintiff.” Within the fifteen days, and on January 24, the plaintiff, without amending her petition, served notice of appeal from the ruling of the court sustaining a demurrer to plaintiff’s petition, and “also from the ruling and judgment of said district court dismissing the action of said plaintiff, and for costs against said plaintiff in favor of defendant.” On February 6 a formal order of the court was entered dismissing the action and for costs in favor of defendant. No subsequent notice of appeal was filed. Appellee contends that there has been no appeal from the judgment of the court of February 6 dismissing the action and rendering judgment for costs against the plaintiff, and more than six months having gone by, the appeal taken by plaintiff should be dismissed. The point is not well taken, for the reason, first, that the ruling of the court on the demurrer was itself an appealable order which plaintiff was entitled to have reviewed (R. S. 60-3302), and for the further reason that the order and judgment of the court of January 12 sustaining the demurrer to the petition was also a judgment dismissing the case, with costs to defendant, in the event, plaintiff did not amend her petition within the fifteen days, and the notice of appeal specifically was from that portion of the order as well as from the ruling sustaining the demurrer. In view of that situation the order of the court of February 6 was really surplusage, and in any event does not have the effect of defeating plaintiff’s appeal previously taken.
So far as it is necessary here to consider it, the petition alleged, in substance, that the defendant township was negligent in the manner in which it had constructed and maintained a portion of a certain township road as it approached a bridge. The road in question was a north-and-south road. The course of the stream crossed by it was from north to south. To provide a crossing, the road, as it approached the stream from the south, turned to the west down a hill, then sharply to the right on a grade or fill constructed as an approach to the bridge, which was almost east and west across the stream; that there was no warning sign near the road at the top of the hill, nor at any place between that and the bridge, nor were there guard rails on either side of the curve at the grade and fill; that plaintiff was riding after night in an automobile driven by her son; that as they approached this bridge and started down the hill the driver of the automobile, although using due care, was unable, because of the lack of appropriate warning signs and guard rails, to see the outline of the grade approaching the bridge and the sharp curve, and as a result thereof drove into a corner of the bridge, turning the automobile over and injuring plaintiff.
In support of the judgment of the court below it is not seriously contended, on behalf of appellee, that the allegations in the petition of defendant’s negligence are insufficient, but it is argued that such negligence, if it existed, was not the proximate cause of plaintiff’s injury; that there was a separate, intervening proximate cause, in that the driver of the automobile was negligent in the manner in which he drove the car when approaching the bridge; that the negligence of defendant, if any, only created a condition which was not the proximate cause of the injury. This is substantially equivalent to contending that contributory negligence of the driver of the automobile was a separate,, intervening cause of plaintiff’s injury, and the proximate cause thereof. A negligent condition may or may not be a proximate cause of an injury, depending upon varying circumstances. (Lambel v. City of Florence, 115 Kan. 111, 222 Pac. 64; McRae, Adm’r, v. Railroad Co., 116 Kan. 99, 225 Pac. 1032.)
Considering the question as argued by appellee, that the negligence of the driver of the automobile was a separate, intervening efficient cause of the injury sustained, we do not regard the point as being well taken, at least not to the extent that a court could so declare as a matter of law. In 45 C. J. 926 it is said:
“It is well settled that the mere fact that other causes, conditions, or agencies have intervened between defendant’s negligence and the injury for which recovery is sought is not sufficient in law to relieve defendant from liability. In other words, an intervening cause will not relieve from liability where the prior negligence was the efficient cause of the injury. The test is not to be found in the number of intervening events or agencies, but in their character and in the natural connection between the wrong done and the injurious consequences, and if the injuiy is the natural and probable consequence of the original negligent act or omission, and is such as might reasonably have been foreseen as probable, the original wrongdoer is liable, notwithstanding the intervening act or event.”
A similar statement of the rule is made in Thompson’s Commentaries on'the Law of Negligence, § 50 et seq. In A. T. & Santa Fe Rld. Co. v. Stanford, 12 Kan. 354, it was said:
“In law, proximate and remote causes and effects do not have reference to time, nor distance, nor merely to a succession of events, or to a succession of causes and effects. A wrongdoer is not merely responsible for the first result of his wrongful act, but he is also responsible for 'every succeeding injurious result which could have been foreseen, by the exercise of reasonable diligence, as the reasonable, natural, and probable consequence of his wrongful act. He is responsible for any number of injurious results consecutively produced by impulsion, one upon another, and constituting distinct and separate events, provided they all necessarily follow from the first wrongful cause. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence; and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. But whenever a new cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for which the final injurious conse« quence could not have happened, then such injurious consequence must be deemed to be too remote to constitute the basis of a cause of action.”
Plaintiff’s injury might have resulted from the combined negligence of defendant and the driver of the automobile, in which event she might have a cause of action against either or both of them as joint tortfeasors. If defendant’s negligence was one of the immediate causes of plaintiff’s injury, negligence of the driver of the automobile, if it existed, would not- bar plaintiff’s recovery, unless it were under such circumstances that it could be imputed to her (45 C. J. 942). If that be appellee’s contention, then the argument is in effect that contributory negligence of the plaintiff is tantamount to an intervening proximate cause. While there may be a line of demarcation that is difficult to distinguish where the one begins and the other ends, contributory negligence is not usually classed as the same thing as a separate, intervening cause.
We regard the questions of negligence, if any, of the driver of the automobile, and the extent, if at all, of such negligence, if it existed, should be imputed to plaintiff so as to bar her recovery, proper ones to submit to the jury. The allegations of .the petition in this case present questions similar to those in Story v. Brown County, 116 Kan. 300, 226 Pac. 772, and Snyder v. Pottawatomie County Comm’rs, 120 Kan. 659, 245 Pac. 162.
Moreover, the allegations of the petition are that the driver of the automobile was using due care, and the facts alleged in the petition as to how he handled the car tend to support that view. These facts are admitted by the demurrer. The petition, therefore, shows no basis upon which to predicate an argument that the negligence of the driver of the automobile was an intervening, separate and distinct cause. The question of contributory' negligence is ordinarily one for the jury. Unless it clearly appears from the pleading it is not a question for the court. It does not clearly appear from the petition in this case. The result is that the judgment of the court below must be reversed, with directions to overrule the demurrer to the petition and the judgment dismissing the case at plaintiff’s cost.
It is so ordered.
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The opinion of the court was delivered by
Burch, J.:
The action was one by the Kansas Wheat Growers Association against a member of the association for stipulated damages for failure to deliver wheat pursuant to the member’s contract with the association. The jury returned the following special finding of fact:
“1. What number of bushels of wheat were produced by the defendant and harvested in the years 1923 and 1924 delivered outside of the association? A. 888 bu. 50 lb.”
There was no evidence to sustain the finding of the jury. Undisputed elevator-record evidence showed defendant produced and personally sold 3,256 bushels and 50 pounds of wheat, and produced 868 bushels which his wife marketed while he was in Missouri, he having been called there because of illness of his mother. Defendant’s wife claimed she owned the wheat she sold because she had some connection with its production which she described. She admitted defendant was as much interested in the proceeds as she was. Defendant, as a witness in his own behalf, failed to corroborate his wife, and did not defend on the ground he did not own part of the wheat.
The judgment of the district court is modified to include stipulated damages for the entire quantity of wheat sold outside the association. As modified, the judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
An opinion in this action was filed December 8, 1928. Carl Millheisler, the appellant, has filed a motion for a rehearing in which he says, among other things, that “the court did not pass on the question presented by the appellant on this appeal.” The contention is based on the following allegation which was contained in the amended answer and cross petition filed by Millheisler:
“That upon the discovery of the fraud complained of herein, which was less than two years before this amended cross petition was filed herein, [Millheisler] ratified said contract and thereby lost the right of rescission.”
Millheisler argues that by this answer he was entitled to abandon his action for rescission and recover damages for the fraud which had been committed on him. Attention is directed to the following statement contained in the former opinion:
“Issues were joined on that answer [asking for rescission]. The cause was afterward tried before a jury, but the jury did not agree. No judgment was rendered. On that trial Millheisler in open court elected to stand upon his cause of action for rescission.” (Ante, pp. 145, 146.)
. His first answer, the trial thereon, and his declaration in open court was such a formal election of remedies as precludes him from now changing his position and seeking to prevail on a different theory.
A rehearing is denied, and the former judgment of affirmance is adhered to.
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The opinion of the court was delivered by
Marshall, J.:
This action is one to recover on a promissory note dated February 28, 1925, payable ninety days after its date. The defendants answered that the note had been deposited by them with the Pacific-Southwest Trust and Savings Bank, of Long Beach, Cal., in escrow, to be delivered to I. S. Freeman on the completion of a real-estate trade between him and the defendant, S. K. Warrenburg. The answer contained the following:
“Defendants admit the execution of the note sued on in this action, but allege and say that the same never was delivered to the said payee named in said note, but on the contrary, was deposited in escrow in the Pacific-Southwest Trust and Savings Bank, at Long Beach, Cal., with the specific and expressed understanding and agreement that certain things should be performed by and on the part of the said I. S. Freeman, payee named in said note, before said note should be delivered, which said things to be performed and conditions to be completed were never performed by the said I. S. Freeman, nor was their performance waived in any manner by these defendants or either of them . . .”
The answer also alleged that the plaintiff was not the owner of the note. The defendants asked for the recovery of $1,000 paid by them under the real-estate transaction, $117 taxes paid by them, and $430 interest paid on mortgages on the land conveyed to them. A jury was impaneled, evidence was introduced, and each side rested. The cause was then taken from the jury, and judgment was rendered in favor of the plaintiff for $500, the principal named in the note, and $110 interest thereon. The defendants were denied recovery on their claim against the plaintiff. The defendants appeal.
The complaint of the defendants is that the court committed error in taking the cause from the jury, in rendering judgment in favor of the plaintiff on the evidence, and in denying to the defendants any recovery on their cause of action against the plaintiff.
I. S. Freeman was exchanging real property in Woodson county, Kansas, for real property owned by S. K. Warrenburg in Long Beach, Cal. Freeman deposited with the Pacific-Southwest Trust and Savings Bank escrow instructions signed by him containing the following provisions:
“I will band you a contract for sale executed by I. S. Freeman, a widower, to S. K. Warrenburg, a married man, covering the following-described property: . . . Said contract is to be dated October 4 1924, for the sum of $3,000, payable on or before December 4, 1924. Subject to: Oil lease on 80 acres of the above-described land, and a mortgage of record for $4,500 and a lease to farming tenant now on the land.
“I also hand you the following documents. . . .
“You are authorized to deliver all of the above to the order of S. K. Warrenburg when you hold for I. S. Freeman (1st) Recorded deed of the following-described property, situated in the city of Long Beach, county of Los Angeles, state of California. . . .
“And the sum of $1,000 on1 or before ten da3^s from date hereof. . . .
“In the event that the conditions of this escrow have not been complied with on or before November 4, 1924, you are instructed to complete the same at the earliest date possible thereafter, unless subsequent to said date I have made written demand upon you for the return of the money and instruments deposited by me. . . .
“As an additional consideration and as an inducement for the escrow holder to so act, it is understood that in the event of any disagreement between the parties to this escrow resulting in adverse claims and demands being made by them or any of them in connection with or for any papers, money or property involved herein or affected thereby, the Pacific-Southwest Trust and Savings Bank, escrow holder hereunder, shall be entitled at its option to refuse to comply with the demands of the parlies hereto or any of them so long as such disagreement shall continue, and in so refusing such escrow holder may make no delivery or other disposition of any money, papers or property involved in or affected by this escrow, and in so doing the escrow holder shall not be or become liable to the parties to this escrow or any of them for its failure and/or refusal to comply with the conflicting or adverse demands of the parties or any of them; and further, that the escrow holder shall be entitled to continue to so refrain and refuse to so act until,
“1. The rights of the parties have been duly adjudicated in a court assuming and having jurisdiction of the parties and the moneys, papers and property involved in or affected by this escrow, and/or
“2. Until the parties hereto have reached an agreement in their differences and shall have notified the escrow holder in wilting of such agreement. . . .
“It is understood that whenever the phrase, ‘close of escrow’ appears in these instructions, that the same shall mean the date upon which the papers transferring the property involved are recorded . . .
“I understand that the Pacific-Southwest Trust and Saving Bank, in the administration- of this escrow, is to be bound only and solely by the foregoing written instructions, and such further written and signed instructions as I may, under the conditions herein imposed, from time to time, deliver to said bank; and said bank shall not be responsible or liable for any promise, representation, agreement, condition or stipulation not set forth therein . . .
“I have read the foregoing instructions, consisting of four pages, and understand the contents thereof, and should I desire to make any change in said instructions, which will affect any other party hereto, I agree to secure the assent in writing of such other party before requiring the Pacific-Southwest Trust and Savings Bank to proceed with this escrow.”
S. K. Warrenburg deposited with the Pacific-Southwest Trust and Savings Bank escrow instructions which contained the following provisions:
“I will hand you deed executed by S. K. Warrenburg and A. A. Warrenburg, husband and wife, to I. S. Freeman, a widower, covering the following-described property; property situated at 936-942 Elm avenue, in the city of Long Beach . . .
“I will also hand you the sum of $4,000 ... as follows: $1,000 cash on October 14, 1924; and $3,000 on or before December 4, 1924, by a contract to S. K. Warrenburg, executed by I. S. Freeman, a widower, covering certain lands located in Woodson county . . .
“You are authorized to deliver all of the above to the order of I. S. Freeman, a widower, when you hold for S. K. Warrenburg, and A. A. Warrenburg, husband and wife, (1st) Recorded contract of the following-described property situated in the county of Woodson, Kansas. . . .”
Other than as above stated the escrow instructions deposited by S. K. Warrenburg were substantially the same as the escrow instructions deposited by I. S. Freeman.
The evidence disclosed that a difference arose between I. S. Freeman and S. K. Warrenburg concerning the land trade. Afterward, •under date of November 28, 1924, S. K. Warrenburg deposited additional escrow instruction signed by him as follows;
“The previous instructions in this escrow are hereby added to and/or amended in the following particulars only:
“You are instructed not to proceed further with the within escrow until advised by me, holding all papers deposited by me subject to my order.”
On February 19, 1925, additional escrow instructions signed by S. K. Warrenburg and I. S. Freeman were deposited with the Pacific-Southwest Trust and Saving Bank, as follows:
“The previous instructions in this escrow are hereby added to and/or amended in the following particulars only:
“You are instructed to hold for I. S. Freeman the sum of $1,500 instead of the agreement for sale as provided in original instructions, said agreement for sale being hereby canceled. Interest, insurance and rents are to .be prorated to close of escrow.
“It is understood and agreed that I. S'. Freeman is to pay the first half of taxes for 1924, on land located in Woodson county, Kansas.
“All other conditions contained in the original instructions to remain the same, and you are instructed to proceed with the closing of the escrow, it being understood that all cancellation notices filed with you are hereby rescinded, and rents deposited in escrow by the tenants to be released to S. K. Warrenburg and Effie Warrenburg, who are the record owners of the property located in Long Beach.”
On February 28, 1925, additional escrow instructions signed by I. S. Freeman were deposited with the Pacific-Southwest Trust and Savings Bank, as follows:
“The previous instructions in this escrow are hereby added to and/or amended in the following particulars only:
“You are instructed to hold for me the cash sum of $1,000 and a note for $500 dated February 28, 1925, for a term of 90 days from date, with interest at 8 per cent payable at maturity. Privilege of payment prior to maturity. Note to be executed by S. K. Warrenburg, Effie Warrenburg, and D. W. Warrenburg.
“Instructions dated February 19, 1925, requiring a cash sum of $1,500 are hereby canceled, in so far as pertaining to this payment.”
On March 23, 1925, additional escrow instructions signed by S. K. Warrenburg were deposited with the PacificrSouthwest Trust .and Savings Bank, as follows:
“The previous instructions in this escrow are hereby added to and/or amended in the following particulars only:
“You are instructed to pay immediately to the Citizens State Bank the sum of $400 from the funds in the within escrow, which is to be used for the benefit of I. S. Freeman, for the purpose of completing refinancing of certain encumbrances between I. S. Freeman and J. E. Leonard and .wife, in their •escrow No. 127.”
The escrow instructions of each party authorized the Savings Bank to carry them into effect. The evidence showed that those instructions had been carried into effect by the bank; that the deeds conveying the properties were recorded by it; that there was ample consideration for the note when it was given; that it was deposited in escrow in the Savings Bank under the instructions given to the bank; that it was delivered to the plaintiff bank April 14, 1925, before maturity, according to the escrow instructions; that there was .ample consideration given by the plaintiff for the transfer of the note to it; and that the note when it was delivered to the plaintiff had been indorsed by the payee named in it. The execution of the note was admitted. There was no evidence to show that plaintiff had any notice of any defect in the note.
The defendant S. K. Warrenburg testified in part as follows:
“From October to February Freeman had allowed interest to accumulate and taxes to accumulate on this apartment property and he agreed to pay all this interest, expenses and taxes. About February 28, 1925, I put up another $1,000 in money and told him concerning the other $500 that would be due on the deal. ‘Now, Freeman, I’ll tell you what I’ll do. I will put up a note for $500. You have agreed to pay all this interest, expenses and taxes, and I will put up a note for $500, and when those things are paid, you are to have this note, but if I have to pay them, I am to have the note back.’ ”
There was nothing in the note sued on, nor in any of the escrow instructions, concerning the matters referred to in the testimony of Warrenburg.
The judgment recites that—
“The court, after considering all of the -pleadings and after hearing all of the evidence, and being fully advised in the premises, finds that the defendants were trying to change the terms of a written contract by parol testimony without alleging or proving any fraud or mistake, and for this reason finds that the cause should not be submitted to the jury, and therefore takes the case from the jury and discharges the jury from any further consideration in the icause, and finds the issues in favor of the plaintiff and against the defendants.”
The evidence of S. K. Warrenburg to show that the note was given on certain conditions not named in the note tended to alter, vary, and contradict the terms of the note and of the written escrow instructions that had been deposited with the savings bank. The plaintiff was entitled to recover on the note. The trial court was justified in taking the cause from the jury and in rendering judgment in favor of the plaintiff. It follows that the court was right in denying to the defendants any right of recovery from the plaintiff.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The defendant, John B. Sanders, was convicted of embezzling certain assets of an estate of which he was administrator, and appeals, urging several errors, the first of which is that the evidence was not sufficient to prove the offense charged.
Briefly stated, that evidence was to this effect: For a number of years, including the time with which we are now concerned, Sanders was president of the Chase County National Bank. In April, 1921, one S. T. Slabaugh died testate, naming Sanders executor of his estate without bond. Among the assets which came into Sanders’ hands by virtue of this executorship was a note for $40,000 secured by a Wabaunsee county ranch of 1,657 acres which Slabaugh had sold to two partners, Jones and Taylor, for $75,000. One of these partners, Jones, was wealthy, and Sanders offered him a discount of $800 if he would pay the note and mortgage, which had several years to run. Jones promptly accepted and paid Sanders $39,018 in cash, and the note and mortgage were canceled. Just what Sanders did with this money is not clear. It may be inferred from the evidence that he used the money to relieve the Chase County National Bank of certain illegal or improvident loans and to ease some of his own financial embarrassments. What is clear is that Sanders did not account to the probate court for the $39,018 nor disburse it as directed by Slabaugh's will, and that for a considerable time he concealed from the heirs and beneficiaries of the estate the fact that he had cashed the $40,000 note, and pretended he had not done so; and when proceedings were begun to compel him to deliver to the administrator appointed to supersede him he turned over to his own attorney some apparently worthless papers, which were all he had to show for the money. The record reads:
“Q. Did I tell you that Mr. Sanders had started to Cottonwood Falls or Saffordville for the purpose of delivering them (notes and mortgages) to you, and that he got caught in a rainstorm at Emporia and that he left them with me and instructed me to turn them over to you?
[Peyton, administrator]: “A. I don’t remember that part of the conversation.
“Q. I did tell you I had the notes and mortgages and a check for a small balance of account in my safe, which I was ready to turn over to you in response to the demand you had made upon Mr. Sanders. A. I remember the notes; I don’t remember the check deal.
“Q. What did you say to me, and I say to you? A. You said, ‘Peyton, I have these notes here in my safe, and if you want them I’ll get them for you ; they ain’t worth a damn to me.’ I said, ‘If they ain’t worth a damn to you they ain’t worth a damn to me’; so I never saw them.”
Anent the f®oing counsel for defendant say:
“This is a most peculiar criminal action in the respect that there is practically no dispute as to the facts. . . . Defendant himself did not testify because he could not add to nor contradict in any manner of importance the evidence offered by the state. ...
“As to what the defendant did with the money which came into his hands, we have only the evidence of the state. It is uncontradicted. . . .
“Query: Do those facts prove or tend to prove an embezzlement of the estate’s funds by defendant?
“We say not. By making unauthorized loans of the estate’s money, defendant was of course civilly liable for any loss that might occur. The loans were made at his peril and he would be compelled to make restitution if his judgment was bad. But the exercise of bad judgment, not tainted with any criminal act or intent, is not yet, in this state, cause for sending a man to the penitentiary.”
Such a contention is surprising, to say the least. The idea that an executor of an estate may make ducks and drakes of its assets and incur no greater penalty than a mere civil liability therefor is something not yet set down in any law book with which this court is familiar. On the contrary, the statute declares:
“. . . Any executor or administrator of any estate . . . who shall embezzle or convert to his own use, or who shall take, . . . with intent to convert to his own use, without the assent of his employer, any money . . . belonging to any estate . . . which shall have come into his possession . . . by virtue of such trust, shall upon conviction ... be punished as for stealing , . .” (R. S. 21-545.)
Interpreting this statute, it has repeatedly been held that any use of the funds of an estate or other trust fund by the custodian thereof in willful violation of his duties pertaining thereto, which prevents the fund from being immediately forthcoming on lawful demand therefor, constitutes embezzlement on the part of such custodian, and it is immaterial whether the custodian’s relationship to the fund be that of executor, administrator, trustee, or other functionary. (State v. Pratt, 114 Kan. 660, 220 Pac. 505; State v. Robinson, 125 Kan. 365, 263 Pac. 1081; Docking v. National Surety Co., 122 Kan. 235, 237, 238, 252 Pac. 201, and citations.) Defendant violated his duty as executor when he invested the $39,018 in those other notes or whatnot which he turned over to his attorney for delivery to Peyton, administrator, and it would have been none the less a violation of that duty if the notes had been good as gold instead of being as worthless as they were characterized in the record.
The criminal wrongdoing of Sanders was not confined to his making away with the proceeds of the Jones & Taylor note, but on that particular item the facts as conceded by his counsel, and neither disputed nor disputable, constituted a felonious embezzlement as defined by the crimes act.
Defendant assigns error on a ruling of the court given to the jury in the progress of the trial to disregard any evidence touching the character of certain notes which the defendant held or pretended to hold as assets of the Slabaugh estate in lieu of the $39,018 and other assets which had come into his hands as executor. This ruling was quite correct. It was of no consequence what the nature of those notes “not worth a damn” might be; and even if such evidence were competent and material, no error could be predicated on its rejection, since it was not brought forward as prescribed by the code in support of the motion for a new trial. (State v. Ball, 110 Kan. 428, 204 Pac. 701.)
Another error is based on the rejection of evidence tending to show certain efforts on the part of defendant to “adjust the matters in controversy” growing out of his misuse of the funds of the Slabaugh estate, and of “Ms offering to be personally responsible for such notes as might not be collectible.” Such evidence would have been immaterial (State v. Chaplain, 101 Kan. 413, 417, 418, 166 Pac. 238) and in any event no error can be based thereon under the rule announced in State v. Ball, supra.
Error is also assigned on the overruling of defendant’s motion to quash the five counts of the information. These counts had obviously been drawn to meet the exigencies of what the evidence might develop, and not with a deliberate purpose on the part of the state to bring the defendant to justice for the perpetration of five separate crimes, each carrying a separate punishment of penal servitude. Nobody but the defendant himself did or could know exactly what he had done with the assets of the Slabaugh estate. The several counts of the information were sufficient to apprise the defendant of the charges he would have to meet, and were sufficiently clear so that the court could have no trouble to determine what judgment and sentence to impose upon a verdict of guilty. When an information meets that test it is good against a motion to quash. (State v. Hutzel, 108 Kan. 456, 195 Pac. 887.)
It is also contended that the second count of the information did not charge any offense, and the case of State v. Hubbard, 58 Kan. 797, 51 Pac. 290, is cited. That was a rather technical decision of a divided court rendered over thirty years ago. The legislative mandate concerning technicalities in criminal appeals (R. S. 62-1718) is accorded much greater respect nowadays. See discussions in State v. Peterson, 102 Kan. 900, 171 Pac. 1153; State v. Shoemaker, 112 Kan. 805, 808, 809, 212 Pac. 890; State v. Seidel, 113 Kan. 390, 214 Pac. 565; State v. Morris, 124 Kan. 505, 260 Pac. 629.
It is finally urged that the trial court erred in its ruling on defendant’s motion to require the state to elect upon which count it would rely for conviction. The court did rule that the state would have to elect to rely on counts one and two or on counts three, four and five. The state elected to rely on counts one and two and defendant excepted because the state was not required to elect between those two. That ruling was not erroneous. Construed strictly, counts one and two stated separate offenses and a verdict of guilty “as charged in the information” could be construed1 as a finding of guilty on both counts for which separate sentences might be imposed. (State v. Ricksecker, 73 Kan. 495, 85 Pac. 547.) However, that construction was not given to the verdict in this case. It read:
“We, the jury empaneled in the above entitled cause, do find the defendant J. B. Sanders guilty of the crime of embezzlement of the sum of $39,018°%oo all as in matter and form charged in the information.”
In accordance with this verdict a sentence for a single offense was properly imposed.
In a reply brief defendant says:
“There is no doubt but that appellant was convicted because the jury accepted as evidence that which was a matter of common knowledge to the people of Chase county when the case was tried in 1927, namely, that some of the notes were then of questionable value, and no attention whatever was paid to their value in 1924. And in fact so far as the evidence was concerned, there was nothing offered to indicate or prove their value either in 1924 or in 1927, except the evidence of appellant, and he said he considered the notes good when he took them.”
The outstanding fallacy in this argument is the defendant’s assumption that he had a right to invest the proceeds of the $40,000 note in good notes, and that the notes he did' invest in were good at the time he did invest in them. The inception of his crime was in investing them in any sort of notes, good or bad, in breach of his duty as executor — which was to pay the debts of Slabaugh, if any, and distribute the balance to the named beneficiaries, and to account to the probate court for the assets of the Slabaugh estate as received by him, and to have those assets intact, less lawful disbursements, when called on to surrender them to the administrator appointed to succeed him.
Other matters argued in connection with the foregoing assignment of errors have not been overlooked, but they present nothing approaching the gravity of reversible error and need no discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff is prosecuting this action to obtain an injunction restraining the defendant from engaging in the business of selling or delivering kerosene, gasoline, lubricants or other merchandise supplied by the plaintiff or any other person in the city of Oberlin for a period of two years from the 5th day of November, 1927. A temporary restraining order was issued, and afterward a demurrer filed by the defendant to the petition of the plaintiff was overruled. From the issuance of the temporary restraining order and from the order overruling the demurrer to the petition, the defendant appeals.
1. The defendant says that it was error to issue the temporary restraining order because the petition on which it was based and which was used as evidence to obtain the restraining order was verified in the following language:
“G. P. Nissen, of lawful age, being first duly, sworn, states that he is the vice president and acting manager of the Kent Oil Company, a corporation, and that he has read the above and foregoing petition and that each and every allegation, statement and averment therein contained is true, as he verily believes.”
The defendant argues that the verification should have been positive and not on belief. That argument is good, but immediately upon the manner of verification being called to the attention of the court, the plaintiff asked and was given leave to amend it. The amended verification stated that the “allegations, statements and averments” contained in the petition “are true.” The first verification was on December 24, 1927, and the second one on January 5, 1928.
In Powell v. Valentine, 106 Kan. 645, 189 Pac. 163, this court said:
“A temporary restraining order ought not to issue on a petition which is not positively verified; but when, later, it is properly verified and the restraining order has given place to a temporary injunction lawfully issued, no reversible error can be predicated on the improvident issue of the restraining order.” (Syl. ¶4.)
The change in the verification did not mislead the defendant. None of his rights was prejudiced thereby. The statement of facts contained in the petition was the same under both verifications. When the court permitted the restraining order to stand after the last verification, he in effect reissued the restraining order and based it on the last verification. The court could have properly reissued the restraining order, and the defendant would have had no cause for complaint. The error in issuing the restraining order without the proper verification was cured when the verification was amended.
2. The defendant contends that it was error to permit the plaintiff to amend its verification. The verification was subject to amendment. (Pierce v. Butters, 21 Kan. 124; Wells Fargo & Co. v. Danford, 28 Kan. 487; Meyer v. Lane, 40 Kan. 491, 20 Pac. 258; Bank v. Rooney, 96 Kan. 133, 150 Pac. 555.) Section 60-759 of the Revised Statutes provides that the court or judge may before or after judgment in the furtherance of justice amend any pleading by.correcting any mistake when the amendment does not change the claim or defense; and whenever a-proceeding fails to conform in any -respect to any of the provisions of the code, the court may permit the same to be made conformable thereto by amendment. The first affidavit stated that the person signing the affidavit believed the statements in the petition to be true; in the second verification, he stated that those allegations were true. There was no error in permitting that verification to be amended.
3. Defendant argues that it was error for this court to overrule his demurrer to the petition of the plaintiff. The petition alleged that the plaintiff employed the defendant at Oberlin, Kan., to conduct its business of wholesaling and retailing gas, coal oil, and other petroleum products at that place, and that the contract of employment prescribed the manner in which the .business should be done. The contract provided that-—
“The said party of the second part also agrees that he will not at any time while he is in the employ of the said party of the first part, or within two years after leaving its services, for himself or any other person, persons or company, call for, solicit orders of, sell or deliver kerosene, gasoline', lubricants or other merchandise supplied by the party of the first part, or any other person, persons or corporation whatsoever at the city of Oberlin, Kan., or in the vicinity thereof, nor will he in any way, directly or indirectly, solicit, divert or take away, or attempt to solicit, divert or take away any of the custom, business or patronage of the party of the first part at Oberlin, Kan., or in the vicinity thereof within such two years.
“That he will not at any time while he is in the employ of the said party of the first part or within two years after leaving its service, for himself or for any other person, persons or company engage in the business or calling of selling kerosene, gasoline, lubricants or other merchandise like or similar to the merchandise handled by the party of the first part in the city of Oberlin, Kan., or in the vicinity thereof.”
The petition then alleged that the contract of employment had been terminated; that the defendant had engaged “in the sale and delivery of kerosene, gasoline, lubricants and other products sold by the plaintiff herein in the city of Oberlin and vicinity; that he is in the employ of the Home Oil Company and Walter Sauvage, of said city of Oberlin, Kan., and that such employment is in violation of the terms of said contract to the great damage of the plaintiff, and has been in the employ of the above-named parties since about the time of his leaving the employ of the plaintiff herein, and that said employment is without the consent of the plaintiff, to the detriment of plaintiff, and in violation of said contract made with the plaintiff.”
In Pohlman v. Dawson, 63 Kan. 471, 65 Pac. 689, this court said:
“Defendant, who was a barber and owner of a shop, sold his furniture, tools and fixtures to the plaintiffs, and agreed that he would not engage in the barber business in any manner in the town of Russell. Held, that a decree enjoining defendant from working as an employee of the owner of another barber shop in that town will be sustained.” (Syl.)
In Mills v. Cleveland, 87 Kan. 549, 125 Pac. 58, the following language will be found:
“The contract involved in this case, limiting the right of a physician to practice a specialty and limiting his right to sell or disclose certain formulas used in such practice, is held to be valid.
“A physician who is a member of a firm practicing a specialty and making use of certain remedies and formulas in such practice, may on retiring sell his influence and good will to the firm or its successors, and having done so he and anyone in collusion with him may be enjoined from doing any act which prevents the vendees from enjoying the benefits of such influence and good will to the same extent as they were enjoyed before the sale.” (Syl. Iff 2,3.)
In Fox v. Barbee, 94 Kan. 212, 146 Pac. 364, it is declared that—
“A house mover bought out two other men in the same town engaged in the same business, one of whom agreed in writing to contract no house moving for the next ten years. Held, that such contract, fairly construed, merely bound the seller to refrain for ten years from competing with the purchaser, and is reasonable and valid, and its violation can be enjoined.” (Syl.)
The present case comes within the principle declared in the cases from which the quotations have been taken and is controlled by them.
The order granting a temporary restraining order and the order overruling the demurrer of the defendant, to the petition of the plaintiff are affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The defendant, A. F. Woodman, was convicted of feloniously wounding one Robert Reynolds by shooting him in the back as he sped away in an automobile from defendant’s filling station on the night of October 9, 1927.
The state’s theory was that the crime was wantonly perpetrated. Woodman’s defense was that he had been annoyed by prowlers; that Reynolds and two other young men and the wife of one of them came to his filling station at midnight and stole some of his property — tires, jack and water can — and were taking these articles away in their automobile; that he called on them to halt, first firing his revolving pistol in the air and then aimed at their rear tires; that his purpose in shooting was only to stop the car and cause the arrest of the persons in it; and that he had no intention to do bodily harm to either of them.
Jury trial, conviction, and double the usual sentence under authority of chapter 191 of the Laws of 1927.
Defendant appeals, first assigning prejudicial error on the familiar manner in which the county attorney addressed the prosecuting witness who had been carried into court on a stretcher, thus:
[County Attorney] : “Q. Am I talking too fast for you, Bob, old man? A. No. . . .
“Q. After you got shot, Bob, how long was it before you can remember? A. Sunday night. . . .
“Q. Have you.been in the hospital ever since, Bob? A. Yes.
“Q. What were you trying to steal out there, Bob? A. Nothing. . . .
“Q. Now, Old Man, can you give this jury and the court any reason at all, Bob, why Mr. Woodman should have shot you or at you, or any members of your party that night? . . .
[Objection sustained.] . . .
[County Attorney] : “That’s all, Bob."
Counsel for appellant also assures us that this undue familiarity of addressing the witness by the county attorney was aggravated by “certain motions and acts, such as stroking the witness Robert Reynolds upon the head, forehead and arm as he propounded the questions to the witness, and that this was all done for effect and for the purpose of appealing to the jury and prejudicing them against the appellant.”
A diligent examination of the record fails to reveal any objection made in the trial court concerning these familiarities of the county attorney. Time and again this court has declared that it is useless to assign errors on matters which were suffered to transpire without complaint in the trial court, and that a reversal of judgment will not be decreed on errors which the trial court itself was not asked to correct. (Brown v. Oil Co., 114 Kan. 482, 218 Pac. 998; State v. Bell, 121 Kan. 866, 250 Pac. 281.)
The same rule of appellate review bars consideration of the alleged motions and actions of the county attorney directed toward the prosecuting witness. The record cannot be supplemented by statements of fact volunteered by counsel for a litigant. The alleged misconduct of the county attorney should have been challenged peremptorily when it occurred, and a record should have been made of the matter then and there; and in any event the facts should have been put in record form by affidavits and urged on the trial court’s attention in support of defendant’s motion for a new trial. The want of these timely requisites prevents a review of this assignment of error.
The next error urged relates to an instruction of the trial court touching defendant’s right to recover his property and to arrest the parties in the automobile as it sped away from defendant’s filling station if the jury should find that Reynolds and his associates, or either of them, had actually stolen defendant’s property. The instruction told the jury that defendant had the lawful right to retake his property if so stolen, and to arrest Reynolds and his associates without a warrant, and—
“You are further instructed in this connection that where a felony has been recently committed by any person or persons, and a private citizen has reasonable cause to suspect that such person or persons are guilty of its commission, the law authorizes the private citizen, while acting in good faith, to arrest the person or persons who have committed the felony in order to prevent their escape; and in so doing he may use such means as appear necessary under the circumstances to effect the arrest, and in such case if the person or persons whose arrest is attempted have reasonable grounds for believing that it is the actual intention of the one attempting the arrest and knows his motive for so doing, he would not be justified under the law in resisting arrest. But in making such arrest or in attempting to do so, he must do so in a temperate and proper manner, without the use of deadly weapons in such a way as to endanger the life of or do great bodily injury to the person or persons sought to be arrested.”
Defendant criticizes the concluding sentence of this instruction, stressing his own version of the facts — that “defendant saw his property being carried away in a car,” and that in firing the revolver shots at the rear tires of the automobile he was not using more force than necessary to recapture his property and prevent the escape of the thieves. One trouble with this argument is that the jury did not believe defendant’s property had been stolen by the persons in the automobile, but apparently did believe that defendant shot in the direction of the moving automobile without excuse and in wanton disregard for the safety of its passengers. The instruction was quite favorable to defendant. In Garnier v. Squires, 62 Kan. 321, 325, 62 Pac. 1005, it was said:
“A private person arrests without a warrant at his peril and it will be a false imprisonment unless it can be shown that a felony has actually been committed. (Wakely v. Hart, 6 Binn. [Penn.] 318; Beckwith v. Philby, 6 Barn. & Cres. 635; Holley v. Mix, 3 Wend. [N. Y.] 351; Allen v. Wright, 8 Car & P. 522; Burns v. Erben, 40 N. Y. 463; Hawley v. Butler, 54 Barb. [N. Y.] 490; 12 A. & E. Encycl. of L., 2d ed., 740.)”
See, also, State v. Mowry, 37 Kan. 369, 15 Pac. 252; State v. Vandruff, 125 Kan. 496, 502, 264 Pac. 1030; Crim. Proc. T. No. 1, A. L. I. sections 19 (2) and 22, and pp. 145, 146, 155-159.
Defendant’s third assignment of error is that the verdict was contrary to the evidence. That part of the evidence which the jury chose to believe tended to show that, altogether without cause or excuse, defendant willfully placed five revolver bullets in the back of the moving automobile and that two of these penetrated the back and hip of the prosecuting witness, causing wounds and injuries from which he will never recover. A doctor called as a witness testified that the injured man would probably never walk, and probably would not live a year. Under such circumstances defendant would certainly have been guilty of manslaughter, mayhap mur der, if death had ensued (R. S. 21-435), and the error assigned on the insufficiency of the evidence cannot be sustained.
Two other errors relate to the imposition of a penitentiary sentence of double the usual length of time prescribed by law for such punishment.
After defendant’s motion for a new trial had been presented and overruled, the county attorney produced record evidence that defendant had theretofore been convicted of the felony of persistent violation of the prohibitory law. The trial court made a finding of fact to that effect, and at the allocution defendant offered no valid excuse why sentence under the act of 1927 should not be imposed.
The pertinent paragraphs of the crimes act read:
“21-107. If any person convicted of an3' offense punishable by confinement and hard labor, or of any attempt to commit an offense which if perpetrated would be punishable by confinement and hard labor, shall be discharged either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offense committed after such pardon or discharge, he shall be punished as follows:
“First. . . .
“Second. If such subsequent offense be such that upon a first conviction the offender would be punishable by imprisonment for a limited term of years, then such person shall be punished by confinement and hard labor for the longest term prescribed upon a conviction for such first offense.” (G. S. 1868, ch. 31, § 289.)
“21-435. If any person shall be maimed, wounded or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned shall, in cases not otherwise provided for, be punished by confinement and hard labor not exceeding five years, or in a county jail not less than six months.” (G. S. 1868, ch. 31, § 42.)
The indeterminate sentence act of 1903 provides:
“62-1521. Every person convicted of a felony or other crime punishable by imprisonment in the penitentiary, except murder and treason, if judgment be not suspended or a new trial granted, shall be sentenced to the penitentiary, except in the cases provided for in Laws of 1901, chapter 355, section 8; but the court imposing such sentence shall not fix the limit or duration of the sentence, but the term of imprisonment of any person so convicted shall not exceed the maximum nor be less than the minimum term provided by law for the crime for which the person was convicted and sentenced, the release of such person to be determined as hereinafter provided.”
Supplementing the foregoing is the new statute, Laws 1927, chapter 19Í, which provides:
“Sec. 1. Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction; and if convicted a third time of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.”
The latter statute was in effect when this offense was committed and was applicable thereto unless the points urged against it are valid. Noting these in order, the invalidity of the act of 1927 is first argued on the ground that it did not repeal the earlier statute, R. S. 21-107, which is part of the original crimes act of 1868. That statute has been modified quite materially, if not largely superseded, by the indeterminate sentence act of 1903 which so greatly changed the mode of sentencing felons and changed the duration of their terms of penal servitude. Any irreconcilable conflict between these statutes would have to be resolved in favor of the more recent enactment, although they were both incorporated in the general revision of 1923. (Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009; City of Wichita v. Wichita Gas Co., 126 Kan. 764, 271 Pac. 270.) By the same reasoning the act of 1927 is paramount. However desirable it may be for the legislative draughtsman to include a repealing section in any new statute he is formulating, it is not absolutely necessary to do so. If the new legislation will not accord with all the older body of statutes, so much of the old as is in conflict with the new must impliedly yield to the latter as the last expression of the legislative will. (Case v. Bartholow, 21 Kan. 300; Missouri Pac. Rld. Co. v. Red Star Milling Co., 122 Kan. 122, 126, 251 Pac. 417; 25 R. C. L. 914, 930; 36 Cyc. 1071, 1073, 1095.)
The invalidity of the statute of 1927 is also urged because it prescribes a different punishment for different persons committing the same offense. That objection is not good. Formerly the imposition of the sentence was left to the discretion of the trial judge within limitations, and it was common for old offenders and hardened criminals to receive severe sentences while first offenders convicted of the same crime were leniently dealt with. And it is a salutary provision of law that criminals whom the law’s discipline has hitherto failed to reform by prior conviction and punishment should form a class to be more severely punished than first offenders. In 16 C. J. 1339, 1340, it is said;
“Statutes which authorize a more severe penalty to be inflicted upon one convicted of a second or subsequent ofíense are constitutional, and are not objectionable upon the ground that they are ex post facto laws, that they inflict a double punishment for the same offense, that they inflict cruel or unusual punishment, that they put accused twice in jeopardy for the same offense, that they deny defendant due process of law, that they deny defendant a fair and impartial trial, or that they impose a penalty on crimes committed outside the jurisdiction. Likewise such a statute is not violative of a constitutional provision requiring that all penalties shall be proportioned to the nature of the offense; nor is it objectionable on the ground that it prescribes different punishment for different persons committing the same offense.”
See, also, State v. Shiffler, 93 Kan. 618, 144 Pac. 845; State v. Briggs, 94 Kan. 92, 145 Pac. 866; State v. Norris, 203 Ia. 327 and citations.
A final objection to the judgment is that the information on which defendant was prosecuted did not allege that defendant had formerly been convicted of a felony. There is a contrariety of judicial opinion as to the necessity for such allegation. (People v. Gowasky, 244 N. Y. 451; 31 C. J. 734-735.) Our statute of 1927 does not create a new offense. It merely prescribes a greater penalty for one who is convicted a second time of the commission of a felony and a still greater penalty for one who is convicted of a felony for the third time. To make his defense to a criminal charge all the accused needs to know is the nature of the crime charged against him and the names of the witnesses with whom he will be confronted in a prosecution therefor. In this state it is no concern of the jury what the penalty for a crime may be, and it is just as well that the jurors’ minds should not be diverted from the question of defendant’s innocence or guilt by facts concerning defendant’s prior convictions of other felonies. It is also fairer to defendant to keep such matters entirely away from the jury. After conviction, however, and before the allocution the defendant should be timely apprised that a sentence under the act of 1927 will be demanded against him, so that he may show cause, if he can, why such higher penalty should not be imposed. (16 C. J. 1294, 1350.) In People v. Gowasky, supra, the New York court of appeals said:
“The action, of the state of New York in adopting chapter 457 of the Laws of 1926, amending sections 1941, 1942 and 1943 of the penal law, commonly known as the ‘Baumes act,’ was nothing new. The practice was a century old. Either out of fairness to the prisoner or else for public safety, the method of charging a prisoner after conviction, not before, with having been previously convicted of crime, and sentencing him accordingly, was well known to the law.
“This court, in People v. Rosen (208 N. Y. 169, decided 1913) again held, following the Sickles case (supra), that in order to convict a prisoner as a second offender and give him increased punishment, it was necessary to allege his previous convictions in the indictment and to prove them on the trial. Now we have changed all this and adopted the other practice. Previous convictions need not be alleged in the indictment, nor proved upon the trial of the new charge. This to me seems eminently fair to any prisoner. When he is charged and tried for a crime, his previous record may not be used to influence the jury to convict him of that crime. The proof against him is to be the same as if he were a first offender, unless possibly he takes the stand. But when he is convicted, then comes the question of his sentence, and he is no longer to be treated as a first offender. He may then for the first time be confronted with his record, and sentenced to a severer punishment, as he 'should be, if it turns out that he has previously transgressed the law. The old practice is still permissible; the indictment, as formerly, may plead the prior convictions, and proof of them may be given at the trial under such pleading, but it is no longer necessary. The indictment may charge only the new offense for which the prisoner is to be tried; on the trial the People will not and cannot offer as part of their case previous convictions. When, however, the trial is over, and the defendant stands convicted, then the previous record must be considered in determining the sentence. Prior convictions logically and in fact have little or nothing to do with proof of the defendant’s guilt of a new crime; a man is not guilty of breaking the law merely because he has broken it before; but when the proof shows him to be guilty, then his past acts have much to do with the way he should be treated. The punishment for the second offense is increased because of his apparent persistence in the perpetration of crime and his indifference to the laws which keep society together ; he needs to be restrained by severer penalties than if it were his first offense.” (p. 459.)
Prejudicial error does not appear in this record, and the judgment is affirmed.
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The opinion of the court was delivered by
Clark, J. :
In this action, brought on a note and for the foreclosure of a mortgage securing the same, jurisdiction of the parties and- of the subject-matter was regularly obtained, judgment duly rendered November 7, 1891, an order of sale issued, and the mortgaged premises sold June 27, 1892. On motion of the defendants, filed October 19 and heard November 11, 1892, the court set the sale aside and vacated the judgment, on the ground that the petition did not state a cause of action. The plaintiff in error, who was plaintiff below, brings the case to this court, assigning for error this ruling of the court.
The defendant in error has made no appearance in this court, and we have not the benefit of any suggestions which he might make concerning the decision complained of. All the proceedings in the case, including the sale, appear to be regular. As the jurisdiction of the court over both the person and the subject-matter is not controverted, the judgment rendered was not void, even conceding that the petition was open to the objection made to it. At the most, it was only irregular and voidable, if timely attacked in a proper manner. But we know of no authority to raise such question for the first time after the term at which the judgment was rendered, by a motion to set aside a sale which has been made pursuant to the judgment. The district court has very wide discretion in opening up judgments aud correcting errors in the proceedings, if it does so at the same term at which the judgments or proceedings are had.
‘ ‘ But it is a rule equally well established, that after the term is ended all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify or correct them ; and if errors exist, they can only be corrected by such proceedings, by a writ of error, or appeal, as may be allowed in a court which by law can review the decision.” (Bronson v. Schulten, 104 U. S. 410.)
Any exceptions to this rule are made and governed by special statutory provisions. The proceeding complained of finds no support in any statute. This court had occasion, recently, to consider a somewhat similar proceeding in the case of Haseltine v. Gilliland, ante, p. 456, 48 Pac. Rep. 88, in which it was said:
“The defendants had ample opportunity to defend in the action by pleading the several matters set up in this motion; and the plaintiff had the right to have such questions determined in the regular course of legal procedure, and by a formal trial in court. The ruling of the court permitted the defendants to avoid a trial when the issue was regularly and properly presented, and to dispose of the entire question affecting the right of the plaintiff to his lien upon the summary hearing of a motion. The law certainly does not contemplate any such procedure. It does not matter that the issue was not made, nor the question raised, in the case proper. It could have been made and determined therein. The defendants were challenged to it by the petition, and their default had the same legal effect as an actual appearance and trial.”
Upon the merits of the motion, under the decision of this court in the case of Loan Co. v. Gill, ante, p. 488, 43 Pac. Rep. 991, the ruling of the court must be held to be erroneous.
With his motion to confirm the sale the plaintiff joined a motion to correct a clerical error in the entry of the judgment. The judgment actually rendered was for $1,518, but by mistake was entered for only $518. Such a clerical error in the entry of a judgment can be corrected at any time, upon motion and notice to the opposite parties. Upon the showing made in the district court, the clerk should have been directed to correct the journal entry and record of the judgment so as to make them conform with the judgment rendered. The record shows that the proceedings upon the sale were regular, and that the premises were sold for a reasonable price. At least, no objection on that ground was made by the defendants in their motion to set aside the sale. The judgment will therefore be reversed, and the case remanded with directions that the district court overrule the motion of the defendants to set aside the sale, and sustain the motions made by the plaintiff to correct the journal entry of the judgment and to confirm the sale.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
There are but two questions necessary to be decided in this case: First, That the court erred in giving certain instructions; second, that the verdict and special findings are not supported by and are contrary to the evidence. The instruction complained of is as follows :
“The verified answer of the defendant Bidwell therefore puts in issue the assignment of said note to the plaintiff, and, as to that fact, the burden of proof is upon the plaintiff, and he must establish that the notes and mortgage sued upon were assigned to him as alleged in the petition, and in good faith, for .a valuable consideration.”
In this we think- the court erred, and, under the pleadings and testimony in this case, the instruction was not applicable.
‘ ‘ Where there is no evidence as to the date of an indorsement, the presumption of law is that it was made before maturity, and that the holder is a Iona fide holder for value.” (Rahm v. Bridge Manufactory, 16 Kan. 530.) See, also, Ecton v. Harlan, 20 Kan. 452; Reynolds v. Thomas, 28 id. 810; Lyon v. Martin, 31 id. 411; Mann v. National Bank, 34 id. 746; National Bank v. Elliott, 46 id. 34.
“It is undoubtedly a general presumption of law that indorsed paper was indorsed before maturity. And a party who denies this, and alleges it was indorsed when over due, must prove it; nor without tliis proof can he avail himself of the equities of defense. . . . 'When the time of indorsement becomes material to let in the defense of payment, etc., it is incumbent upon the defendant to show it and rebut the legal presumption arising from the face of the transaction.’ •” (Rahm v. Bridge Manufactory, 16 Kan. 530.) See, also, Mann v. National Bank, 34 Kan. 746; Ecton v. Harlan, 20 id. 452.
There was no such evidence in this case ; nothing that would overturn the prima facie case made by the pleadings and evidence of the plaintiff, and certainly nothing that would shift the burden of the proof back from the defendants to the plaintiff. The execution of the note is admitted. No fraud or illegality of the transaction is alleged, or attempted to be proven. In fact, the only thing attempted to be denied is, that the indorsement on the note was not made in writing at the time stated, and never was made; yet the signature of the indorser is admitted to be genuine. There is not a scintilla of evidence contradicting the direct and positive testimony of the plaintiff that it was made on the 1st of September, 1884, and the testimony of the indorser himself that it was indorsed within a few days after it was made. In fact, this is all the testimony of any kind that refers to this date. Upon this proposition it is idle, therefore, to make further citations. The authorities are uniform. This note, then, was held by the plaintiff discharged of all equities between the.maker and the payee.
There remains, then, but a second question to be disposed of, i. e., that the verdict and special findings are not supported by, and are contrary to, the evidence. From what we have already said, we are compelled to hold that the answer to special finding or question No. 1 is without foundation upon any testimony adduced in this case. No. 2 is in the same condition. The testimony of the plaintiff is undisputed that he did, about the time or just before this note was given, deliver to Lamberson, at the request of him and Woodburn, such a note, under an arrangement that he was to receive another note in lieu thereof, and that he did receive in fulfilment of that agreement or arrangement the note sued upon in this case. The testimony of the mortgage of May 22, 1883, together with a release thereof by Lamberson a short time before this note was given, together with the fact that the land was about this time mortgaged to Gilbert & Gay, all corroborated plaintiff’s testimony. No. 3 cannot, upon any theory we have been able to devise, be sustained. It is an undisputed fact that the note was transferred and indorsed to Challiss not later than September 1, 1884. The defendant Woodburn does not claim that his note was paid until April 2, 1885, when he sold the land to Lamberson, yet the deed given at this time recites that this identical mortgage (and it is so admitted in the testimony) was at that time a valid lien upon the land. This, together with the uncontradicted testimony of the plaintiff that he knew nothing of any claim of payment, and in fact did not know of the transferring of this land until after it was so transferred, seems to us to constitute a total failure of proof upon this proposition. Even if we were to take the conversation between Lamberson and Woodburn at the time of this sale as binding upon Challiss, it is not shown that it was ever brought to the plaintiff’s knowledge. No. 4 : We have failed to find any witness that has testified to any fact that even squints toward such a condition of affairs, and, from what we have said in reference to No. 3, this finding cannot be sustained; and the answer given to No. 6 is not only inconsist ent with, this finding, but negatives the propositions therein contained. No. 7 is wholly without foundation.
“The law presumes, in the absence of evidence to the contrary, that the business transactions of every man are done in good faith and for an honest purpose, and any one who alleges that such acts are done in bad faith, or for a dishonest and fraudulent purpose, takes upon himself the business of showing the same. ’ ’
This rule is substantially laid down by the court in its fourteenth instruction, and is unquestionably the law. (Baughman v. Penn, 33 Kan. 504.) “Fraud is never presumed, but must be established by evidence, and no mere suspicion is the equivalent of proof.”
We think it is wholly unnecessary to discuss the evidence or the facts in this case further. We cannot see what good or useful pupose can result therefrom. The very utmost that can be said of the evidence in this case is, that it possibly raises a suspicion against Lamberson, but it does not go even that far as to the plaintiff, Challiss. We cannot agree with counsel for the defendants in error that there are many remarkable and suspicious facts and circumstances proven in this case. His construction placed upon the testimony is ingenious but not tenable, and we think it arises from his zeal in behalf of his clients, and the language used in his argument is much stronger than is warranted by the facts in this case.
After a careful and thorough examination of the record, we are compelled to hold that, upon all the material facts in this case necessary to sustain the special findings, general verdict of the jury, and the judgment rendered, there is a total failure of proof; and, unless an entirely different condition of affairs can be proven upon the rehearing of this case, we would suggest that the judgment herein should be in favor of the plaintiff and against the defendants George Lamberson, jr., John A. and Mary F. Wood-burn, for the amount paid by Challiss to the Bank of Wetmore, with legal interest thereon from the date of payment; that the mortgage be declared a lien upon the land, subject and inferior to a prior lien in favor of the defendant Worthy for the amount actually paid by him or used by the defendant Bidwell in the discharge of the $2,000 mortgage to Gilbert •& Gay, to whose rights under this mortgage he should be subrogated..
The judgment of the district court will therefore be reversed, and the case 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
Garver, J. :
The petition alleges that the plaintiff, having a deposit of $7.02.91 in the Bank of Dorrance on the 22d day of April, 1889, gave a check for that sum to said bank and obtained therefor a draft in like amount, drawn by L. B. Hail, as cashier of said bank, payable to B. McAllaster, or order, on a Kansas City, Mo., bank, and that the draft was not paid. The petition admits the subsequent payment to the plaintiff of the sum of $350 on account of said indebtedness, and asks judgment against A. N. McLennan and others as partners and owners of said bank. . Judgment was rendered as prayed for.
The defendants filed a verified answer denying the allegation of partnership, and alleging that the Bank of-Dorrance was a corporation,■ and that Whatever business the plaintiff transacted Avith said bank Avas with it as an incorporated bank. A verified reply ■was filed denying the allegations of the answer.-
The questions arising as to the attempted incorporation of the Bank of Dorrance, and the relations sustained by said defendants to said bank and to. one another, are substantially the same as those considered and just' decided by this-court in- the case-of McLennan v. Hopkins. For the reason stated in the opinion filed in that case, we think whatever cauise of auction existed in favor of the plaintiff ih this case was against the defendants as partners. The evidence fails to show any such condition of things afe would make" the Bank of Dorrance a do facto corporation, or estop this plaintiff from denying its existence as such.
We think, however, that the judgment rendered is without support from the evidence. Defendants’ liability rests upon the non-payment of the draft. The only evidence introduced concerning it was that given by the plaintiff himself. He testified to the buying of the draft at the bank on the 22d day of April, 1889, from one L. B. Hail, who was’acting as cashier ; that the draft was drawn by Hail, as cashier, in favor of B. McAllaster, of Omaha, Neb., on said bank’s correspondent bank at Kansas City, Mo. ; that, at plaintiff’s request, Hail put the draft in an'envelope addressed to McAllaster at Omaha, and said he would mail it. The draft was intended as a payment' due from Anspaugh to McAllaster on certain railroad-land contracts. There is no evidence tending to show Avhat became of the draft; whether it reached McAllaster, or whether it was ever presented to or paid by the bank on which it was' drawn. The only evidence having any bearing whatever'on the matter is’ the testimony of Anspaugh, giving a conversation which he had in January or February, 1890, with one E. M. Coleman, who was at that time acting as cashier of another newly incorporated “Bank of Dorrance.” He states that, at that time, Coleman spoke of the draft and said : “We will pay it, or I will pay it, as’ soon as we can collect the money in for the notes of the old bank” ; and either then, or soon after, Coleman paid him $200 that was collected from the notes of the old bank, and said as fast as they could collect the money they would pay their debts, but that they would have to collect the money that was owing to the old bank to pay their debts. This evidence was introduced over the objection of defendants. Coleman was not a party to the action, and there is no pretense of authority in him to speak for or to bind the defendants in this action. It was clearly incompetent.
Before a recovery can be had upon the allegations of the petition “that saicl draft never reached said McAllaster; was never presented to or paid by the bank on which the same was drawn ; has never been paid by the defendants, or any or either of them ; and is now lost and wholly unpaid; . . . that said Bank of Dorrance does not now have, and for a long time prior hereto has not had, any funds on deposit with the bank on which said draft was drawn, and has no means or provisions whatever with said bank at Kansas City, Mo., with which to pay said draft,” there must be at least some evidence tending to prove some of such allegations. The last known of said draft it was intrusted to Hail to be forwarded to Me Allaster. Hail was thus made Anspaugh’s agent, for there is nothing to show that it was any part of his duty as cashier to forward this draft, or to do an act which was for the mere accommodation of Anspaugh. The draft is, under the evidence, thus left in the hands of Anspaugh’s agent. The presumption, in the absence of evidence to the contrary, is that the draft was paid. (Watkins v. Parsons, 13 Kan. 436.)
The judgment will be reversed, and the case remanded for a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
The plaintiffs in error, as plaintiffs below, brought their several actions against John W. Fisher in the district court of Atchison county, and caused orders of attachment to issue to the sheriff of Graham county, who levied upon certain real estate and promissory notes as the property of the defendant. The grounds for attachment as alleged in the affidavits therefor were: That the defendant was about to remove his property, or a part thereof, out of the jurisdiction of the court with the intent to defraud his creditors; that he was about to convert his property or a part thereof into money for the purpose of placing it beyond the reach of his creditors ; that he had property and rights in action which he was concealing, and had assigned, removed, and dis posed of, and was about to dispose of, his property, or a part thereof, with the intent to defraud, hinder and delay his creditors. The defendant in due time filed his affidavit in each case, in which he made specific denial of the several grounds alleged in plaintiffs’ affidavits, and moved to dissolve the attachments and discharge the property from the liens thereof. By agreement of all parties, these motions were both heard at the same time, and upon the same evidence, and upon a hearing duly had, the court sustained defendant’s motions. The plaintiffs duly excepted to various rulings of the court on the admission of evidence and assign these rulings for error in this court.
We have carefully examined the record, and find that the cases were heard and determined solely upon the evidence of the plaintiffs, and while perhaps the court may have erred in some of its rulings, the record shows that any errors which the court may have committed in this respect were subsequently cured when the witness was permitted to testify, in response to questions which were so framed as not to be deemed objectionable, to the same matters which plaintiffs had previously sought to introduce over defendant’s objection. Other rulings, to which exceptions were saved, were in exclusion of testimony which plaintiffs sought to elicit on a very rigid examination of defendant, as their own witness, and upon matters which if admitted could not have aided the court in arriving a,t a correct determination of the question then being litigated.
We think, from the whole record, it very clearly appears that no substantial rights of the plaintiffs in error were prejudiced by the rulings of the court complained of, and the decision in such case is accordingly affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gar,ver, J. :
The mortgage in controversy in this action was executed by Frank E. Barr and wife October 5, 1885, on a tract of land in Ellsworth county, to secure the payment of the sum of $1,000. It was forthwith deposited with the register of deeds of that county for record, and recorded ; but, by the mistake of the recording officer, it was entered of record as a mortgage of $100, instead of $1,000. Subsequently Barr sold and conveyed the land to Offa Hill, the latter being at the time informed of the previous mortgage, and his deed reciting that the conveyance was made subject to a mortgage for $1,000, The deed from Barr to Hill was duly and correctly recorded. Thereafter Hill conveyed the land by a deed of general warranty to the plaintiff in error, John Zear, the deed specifically referring to the mortgage in question as a mortgage for only $100. In the suit to foreclose the mortgage, Zear claimed to be an innocent purchaser, and contended that, as against him, the mortgage could be enforced as a lien for only $100. The court rendered judgment for the .full amount of the mortgage, and this ruling is now assigned for error.
The decision of the lower court was proper, and the judgment must be affirmed. The rule is well settled that a purchaser of real estate is charged with notice of the recitals contained in the deeds which make up his chain of title. (2 Devi. Deeds, §§ 1000, et seq.) Under this rule, the deed which was the evidence of the title of Hill, the immediate grantor of the plaintiff in error, was sufficient notice to him of the fact that there was a mortgage on the land for $1,000 ; it put him on inquiry, and if followed up with reasonable diligence he would have been informed of the mistake in the record and of the actual condition of the title. Having this notice from the deed, as well as from the record of it in the office of the register of deeds, he was not an innocent purchaser, and took the land subject to the mortgage.
The authorities are in irreconcilable conflict as to the legal effect of such a mistake as was made in this case in the record of the mortgage. In some states the doctrine prevails that the grantee named in the instrument which is incorrectly recorded should be held responsible for and must suffer the consequences of the mistakes of the officer ; that a record is constructive notice only to the extent that it is a true copy. In other states the courts hold that when the grantee has deposited his deed with the recording officer he has done all that is required of him, and that constructive notice, under the recording acts, of the actual contents of the instrument filed for record is thereafter conclusively presumed, without regard to the errors of the officer whose, duty it is to make a true record. The latter view has been adopted by the supreme court of this state, and this is no longer an open question with us. (Poplin v. Mundell, 27 Kan. 138, 158; Lee v. Bermingham, 30 id. 312.) In the first of these cases, Hobton, C. J., said:
‘ ‘ It seems to us that when the party holding the title presents his deed, duly acknowledged and certified, to the register of deeds for record, and demands that it be placed upon record, and the register thereupon accepts the same, and duly indorses it filed of the date it is so presented, such party has discharged his whole duty to the public, and his muniment of title cannot be shaken by any subsequent purchaser. If any subsequent purchaser be injured by the neglect or delay of the register as to his duties in the registration of such conveyance, such injured party has his action against that officer.”
Upon the authority of these decisions, we hold that the mortgagee in this case has done all that was required of it when it had deposited its mortgage with the register of deeds for record, and that thereafter, the mortgagee not being guilty of. any laches with reference to the mistake in recording, any subsequent purchaser was bound in the same manner and to the same extent as if a correct record had been made.
The .judgment will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by '
Clark, J. :
On August 19, 1890, William Spencer brought this action in the district court of Osborne county against Ashley Gilson and Roselsa Gilson. The plaintiff was about 79 years of age and im feeble death, and the defendants were his son-in-law and daughter respectively. The petition was very inartistically drawn; in fact, it is difficult to ascertain from a critical examination of it the nature of the cause of action upon which the plaintiff based his right to recover ; and yet, when the pleadings are construed as a whole, together with the evidence that •was submitted by the parties to the action, the instructions of the court and the verdict of the jury, together -with the other proceedings had upon the trial, it is evident that the questions fairly litigated were as to whether or not the defendants had been legally released from the obligation assumed by them under a certain contract entered into on or about the 6th day of September, 1888, by the terms of which the. plaintiff agreed to convey to the defendant Ashley Gilson the homestead upon which Mr. Spencer was then residing, being a quarter-section of improved farming land in Osborne county upon which there was a mortgage of $1,000, the defendants undertaking and agreeing to supply- the plaintiff with all necessary food, clothing, shelter, and warmth, together with other necessaries for his comfort and sustenance in defendants’ family for and during the term of his natural life, the defendant Ashley Gilson assuming and agreeing to pay the mortgage for $1,000 ; and if this question should be determined adversely to the defendants, then the amount which plaintiff was entitled to recover as damages for a breach of the contract should be determined. The trial proceeded upon the theory that these were the issues joined, and therefore a similar construction of the pleadings will be adopted by this court. The jury returned a verdict in favor of the plaintiff, assessing his damages at $761, and a judgment was rendered against the defendants in accordance therewith. To reverse this judgment, the defendants have brought the case to this court. Since. the petition in error was filed the death of the plaintiff below has been suggested, and the administrator of his estate has been duly substituted as defendant in error.
There is no contention as to the terms of the contract entered into between the parties, but the plaintiffs in error pleaded in bar of plaintiff’s right to recover, that for a valuable consideration they were, on November 6, 1888, duly released from their obligation to support the plaintiff. They admit the execution and delivery of the deed in pursuance of the original contract, and that they moved into the dwelling-house on the Silencer homestead and took actual possession of the farm, under the deed, and also looked after and cared for Mr. Spencer’s personal property, which consisted of live stock, farming implements, and household furniture, which was on the place at that time. They claim that soon thereafter Mr. Spencer transferred to Ashley Gilson all of the said personal property, the same then being in the virtual possession of the plaintiffs in error, and that the sole inducement for such transfer was that, as Mr. Spencer was at that time indebted to various parties for certain farming implements, as well as for the expenses incurred incident to the recent sickness, death and burial of his wife, his creditors would be likely to take his property from him, unless he otherwise disposed of it; and that in order to avoid the payment of this indebtedness he gave this property to Mr. Gilson. This claim was, however, refuted by the plaintiff below, -who testified that after the contract had been consummated upon his part by the execution and delivery of the deed, and the defendants had gone into possession of the farm, Mr. Gilson said to him : "You might just as well let me have the rest of the property ; you are old, and it is a bother to you.” To which he replied: "After I am dead and buried, all will be yours.” He also testified that that was the substance of the conversation, and that he did not give the personal property to Mr. Gilson. Soon afterward a controversy arose between the plain tiff and Mrs. Gilson, growing out of a desire on the part of the former to transfer a bed, claimed by him, to the residence of a neighbor, with whom he was stopping temporarily. Mrs. Gilson refused to allow him to remove the bed from the premises, and the plaintiff claimed that as a result of that altercation, and -without sufficient provocation therefor, he was driven from the home of the defendants and compelled to seek refuge and support elsewhere. He also claimed that the circumstances attending the execution of the release, pleaded in bar by the defendants, were such that he was not bound thereby; that because of his infirmity both of mind and body, and his incapacity by reason thereof to manage his affairs, of which fact the defendants had full knowledge, and with the intent to wrong him and to secure a discharge from their obligation to support him, they refused him possession of certain personal property claimed by him, except upon the condition that he sign said release. This, however, is denied by the defendants, who claim to have dealt fairly and honorably with the plaintiff in the premises, and that they purchased such release upon sufficient consideration therefor. The evidence in support of the claims of the respective parties is very unsatisfactory and con flicting, save as to the terms of the original contract entered into by them, and yet we do not feel warranted in saying that the general verdict of the jury in favor of the plaintiff was not supported by the evidence, or that there is an irreconcilable conflict between the general verdict and the special findings of fact. '
As the instructions asked by the plaintiffs in error which were refused by the court were substantially covered by the general instructions, which stated the law applicable to the case, the questions of fact having been determined by the jury in favor of the plaintiff below, the verdict having been approved by the trial court, and no prejudicial error appearing in the record, •it follows that the judgment must be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Dennison, J. :
The defendant in error brought suit in justice court in Pratt county, Kansas, on a promissory note of $150, dated August 27, 1888, executed and delivered by the plaintiffs in error to him, a copy of which said note is as follows :
“$150.
Pratt, Kan., August 27, 1888.
“For value received, one year after date, we promise to pay to the order of W. P. Knote $150, at the First National Bank, in Pratt, Kan., with interest from date at the rate of 12 per cent, per annum.
E. B. Cabbell.
Z. Bright.
Thomas W. Gann a way.
G. W. Fox.
R. F. Whitman.”
Judgment was rendered for said defendant in error, and plaintiffs in error appealed to the district court. In the district court the plaintiffs in error obtained leave to answer, and filed a verified answer denying that they gave the note sued on as their joint and several promissory note. They allege that said Knote, through his agent, G: A. Sears, sold to the First African M. E. Church of Pratt, Kan., a corporation duly organized under the laws of the state of Kansas, a certain building for the sum of $200; that the said corporation paid at the time $50, and gave its note and a mortgage to secure the payment thereof for $150 ; that the said note and mortgage are each parts of one and the same contract, and that said Knote, by his said agent, Sears, accepted said note, with the distinct understanding that the same was signed by the said defendants as trustees of said corporation, and that the making, execution and delivery of said note and mortgage was the act of said corporation. The said mortgage is attached to and made a part of the answer. The mortgage states that the trustees of the First African M. E. Church of Pratt Citj^ are indebted to W. P. Knote in the sum of $150. The property described in the mortgage is as follows :
“All that tract or parcel of land situated in the county of Pratt and state of Kansas described as follows, to wit: Lot 8, in block 13, in Calhoun’s addition to the town of Pratt Centre, now Pratt City, as shown by the original plat of said addition now on file in the office of register of deeds of said county; also a building now standing on lot 3, in block 33, in the town of Saratoga, Kan., being a one-story frame building, 40 feet long and 20 feet wide. Said trustees of the first part are to move said building from off the last-described lot and place same on the lot first described in the mortgage, to wit, lot 8, in block 13, in Calhoun’s addition to Pratt Centre, Kan., and this mortgage to be the first lien on said building and lot.”
The mortgage also contains the following stipulation :
‘ ‘ This grant is intended as a mortgage to secure the payment of $150, according to terms of a certain note this day executed and delivered by the said trustees of said church to the said W. P. Knote, payable at the First National Bank of Pratt, Kan., as follows, to wit: $150 on the 27th day of August, 1889, with interest thereon at the rate of 12 per cent, per annum from date, to the said party of the second part.”
The plaintiff below filed a motion for judgment for the plaintiff on the pleadings, which motion was sustained, and judgment rendered against these plaintiffs in error for $188.40 and costs, and they bring the case here for review, alleging that the court erred in sustaining said motion for judgment, and in overruling their motion for a new trial. Our supreme court has decided causes similar to this a number of times, and they have uniformly held that the note and mortgage are parts of one transaction, constitute one contract, and must be construed together, as if they were parts of one instrument. In Chick v. Willetts, 2 Kan. 384, the court held that a mortgage made in. Kansas to secure a note made in Missouri over four months prior to the execution of the mortgage was effective to change the terms of the note and extend the time of payment. In Round v. Donnel, 5 Kan. 54, the court held that the note and mortgage and a separate agreement by the payee to extend the time of payment five years must all be construed together, and the statute of limitations would not begin to run until the expiration of five years, although the note upon its face was due one day after date. In Muzzy v. Knight, 8 Kan. 456, the court held that a note which was due in five years, with 10 per cent, interest, was modified by a mortgage which stipulated that interest was payable annually. The same doctrine was held in Meyer v. Graeber, 19 Kan. 165. In Rank v. Peck, 8 Kan. 660, the court held that when three separate notes were due in 6, 12 and 18 months, respectively, the one due in 18 months was modified by the mortgage, which stipulated that if any part of the money was not paid when due it should afl immediately become due and payable, and upon default upon the first notes the last one became due, although by its express terms it was not due until 18 months after date. The same doctrine was held in Darrow v. Scullin, 19 Kan. 57.
It is therefore clear that, in construing the pleadings in the case at bar, the note and mortgage must be construed as though they were one instrument, and parts of the same contract. The note is signed by the plaintiffs in error without any designation of the capacity in which they sign. The mortgage states that the note was executed and delivered by the “trustees of said church.” Admitting the an swer to be true, (which must be done in considering the motion,) and it clearly appears that said Knote entered into an agreement with said corporation by which he sold them a building for $50 cash and $150 due in one year, for which said corporation gave him its note, and to secure the same gave a mortgage back on said building and a certain lot, and agreed to move the building on to the said lot. The tiustees were the proper persons to do this on behalf of said corporation. Section 3 of article 12 of the constitution provides that “ the title to all property of religious corporations shall vest in trustees, . . and paragraph 1179 of the General Statutes of 1889 provides that “the secular affairs of a religious corporation shall be under the control of a board of trustees ; ” and also follows the provisions of the constitution as to title to property.
If the evidence sustains the allegations of the answer, the defendant in error is not entitled to a personal judgment against the plaintiffs in error. Therefore, the motion for judgment on the pleadings should have been overruled.
The judgment of the district court is reversed, and the cause remanded with instructions to grant a new trial, in accordance with the views expressed in this opinion.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
The record shows that the amendment to the petition was allowed ‘ ‘ in order to conform the petition to the facts proved,” but, even if the original petition had contained all of the allegations of the amended petition, the jury could not, under the evidence, have found otherwise than in favor of the defendant. How, then, can it be said that the amendment conformed the petition to the facts proved? It might with much more propriety be said that the al legations of the amended petition were clearly contro-. verted by the evidence. If the question presented by the amendment could be properly litigated in a case of this kind, the plaintiff in error ought not to complain that this amendment was allowed, as the railway company, over the objection of the defendant in error, introduced evidence tending to rebut the allegations of the amended petition. But we do not think the question presented by this amendment could be properly litigated in this action. The right of locating the railroad, the depot, the depot-grounds, the switch and passing tracks was vested by law in the railroad company in the first instance. The act of location was not void, and if it was voidable the state only could call the company to account for it* (Wood, Railway Law, § 227; Railroad Co. v. Young, 33 Pa. St. 175; Railroad Co. v. Speer, 56 id. 325; Railway Co. v. City of Joliet, 79 Ill. 25; Railroad Co. v. Dunbar, 100 id. 110; McGrath v. Railroad Co., 24 N. W. Rep. 854.)
While we think the court erred in allowing this particular amendment to the petition, and while we would not hesitate to reverse the decision of the trial court in granting a new trial, if it clearly appeared from the record that a new trial was granted solely to enable the plaintiff below to introduce evidence in support of the allegations of negligence which were not included in the original petition, still it must be remembered that the grounds set up in the motion for a new trial are that the verdict was not sustained by sufficient evidence and was contrary to law; and that errors of law occurred at the trial to which the plaintiff duly excepted; and, for aught that appears in the record, the court may have granted the new trial partly on these grounds. The defendant in error insists that the court erred both in the admission and rejection of evidence offered at the trial, and that, although it may be said the verdict as returned is sustained by the evidence, the findings were influenced by the errors of the court in the admission of evidence. We think under the circumstances of this case, the court properly ruled that it was immaterial whether the defendant did or did not sound the steam-whistle at least three times 80 rods from the crossing. There was no proof that any one was in charge of the stock, nor as to whether they were on or off the railroad-track, or on the highway, at the time the train was 80 rods from the crossing. The failure to comply with the statute would not render the company liable to the owner of the stock injured unless it was shown that the injury resulted from a failure to comply with the statute in this respect. The supreme court of Indiana, in Railway Co. v. Green, 22 N. E. Rep. 327, in construing a statute similar to our own, said:
“It is, manifestly, not the object or purpose of the statute to require this signal for the purpose of frightening animals which may chance to stray upon the crossing, as the law does not permit cattle to run at large in the highways of the state ; and the presumption is that none will be upon the highway; and if they were would no doubt be as liable to become frightened at the approaching train as by the signals required. . . .”
The court in that case says it cannot presume, or the inference cannot be drawn,
“that the cow remained on the track notwithstanding the noise of the approaching train, the ringing of the bell, and shining headlight of the engine coming at a rapid rate of speed toward her, but if the whistle had been sounded she whould have left the track and avoided instant death.”
The plaintiff having established his ownership of the stock, and the injury resulting from their contact with a passing engine on the right of way at a place other than a public highway, which the defendant had not inclosed with a good and lawful fence to prevent animals from being thereon, in order to defeat a recovery it devolved upon the railroad company to show either contributory negligence on the part of the plaintiff or that it was not required to inclose its track at the particular place where the animals entered its right of way from the highway. The jury found that the plaintiff was not guilty of negligence contributing to the injury.
The defendant propounded to several of its witnesses the following question :
"State whether or not the cattle-guard could be constructed or maintained at the point where the railroad intersects the south line of the L. T. Smith land, on the north side of the highway, without endangering the lives or limbs of railroad employees.”
The court, over the objection of the plaintiff, permitted the witnesses to answer the question, and an exception was saved to the ruling of the court. The jury were instructed that if the defendant located its depot at a suitable place, and it was necessary that it should construct its main track and passing track across the highway in order to properly manage. its business in the public interest, it would have a right to do so ; and that if a fence or cattle-guard along the margin of the highway could not be constructed without interfering with the safe management of the trains with reference to the employees of the railroad company, the law would dispense with such fence or cattle-guard at that place; and that it was for the jury to determine whether or not the passing track was properly constructed — was of proper length for the convenient operation of the railroad with reference to the public interest — and if it was, that then they should determine from the evidence whether it would have been proper for the defendant, in view of all the circumstances of the case, to have constructed a fence or cattle-guard on the north side of the highway ; and that would depend on the determination of the question as to whether a fence or cattle-guard at that place would have interfered with the safe management of the trains with reference to the employees of the railway company. It will thus be seen that, under the instructions, the main question to be decided by the jury was one upon which witnesses were allowed to express an opinion. The witnesses had not shown any peculiar qualifications to testify upon this question, except that they were railroad employees, including a civil engineer, brakemen, locomotive engineers, and a station-agent. In fact, it required no special skill or training to ascertain whether a cattle-guard at the place in question would have been dangerous to defendant's employees. It is not apparent why these -witnesses could not have testified as to •the manner of the construction of cattle-guards-, the location of the tracks, the uses made of them, and .stated any other fact which would tend to show that a cattle-guard across or under the tracks in the station grounds, or switch yards, or at the particular place in qestion, •would be dangerous to employees of the railway company, and the jury, upon such testimony, would have been able to draw reasonably correct conclusions with reference thereto without the aid of the opinions of the witnesses. “If the relation of facts and their probable results can be determined without special skill or. study, the facts themselves must be given, and the jury left to draw conclusions or inferences.” (St. L. & S. F. Rly. Co. v. Ritz, 33 Kan. 404.) In Railway Co. v. Modesitt, 24 N. E. Rep. 986, the supreme court of Indiana held that, for horses killed by getting upon the railroad-track at a crossing where no cattle-guard was maintained, the evidence of a witness that a cattle-guard could not be maintained there without injuring defendant’s employees was properly excluded, the court saying the railway company “was entitled to prove the condition of the tracks, their location, the use made of them, and like facts ; but it was not entitled to the opinion of a witness that the construction of a cattle-guard would make the use of the tracks dangerous.” In Railway Co. v. Hale, 93 Ind. 79, which was an action to recover damages for killing a horse, the evidence tended to show that the animal was killed by a freight-train on the railroad. The principal contention was whether the railroad could have properly been fenced at the place where the horse entered upon the track and was killed. The-court held that it was not competent to take the opinion of witnesses, but that the jury must be left to decide that question upon the facts proved. See, also, Bliss v. Wilbraham, 8 Allen, 564; Muldowney v. Railway Co., 36 Iowa, 462; Railroad Co. v. Zumbaugh, 39 N. E. Rep. 1058; Montgomery v. Scott, 34 Wis. 345; Stillwater v. Coover, 26 Ohio St. 520; Couch v. Railroad Co., 22 S. C. 557; Railroad Co. v. Greeley, 23 N. H. 237; City of Topeka v. Sherwood, 39 Kan. 690; City of Junction City v. Blades, 1 Kan. App. 85.
For the reasons assigned, the order allowing the amendment to the petition will be reversed, while the order granting a new trial will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
There is but one question in this case which requires our attention, the answering of which determines all other issues in the case. Did the title and ownership of the property in question pass to Renner at the time the contract was made, February 8, 1890? This we must answer in the affimative.
The rule is, in sales of personal property, that the title passes at once on the sale, if such is the intention of the parties, though the seller is afterward to make a delivery of the goods sold. This intent may be expressly declared, or it may be implied from the circumstances surrounding the making of the contract. This, we think, has always been the rule. Nothing was required at common law to give validity to the sale of personal property except the mutual consent of the parties to the contract; and as soon"as it was shown by competent evidence that it was agreed by mutual consent that the one should transfer the absolute property in the thing sold to the other for a money price, the contract was considered complete and binding on both parties. (Hatch v. Oil Co., 300 U. S. 124.) Mr. Justice Brewer, in delivering the opinion of the court in Bailey v. Long, 24 Kan. 91, says:
“ So long as T. W. B. [the vendor] had the title and the right to control the property, it might be taken for his debts, notwithstanding any agreement he might have made to sell it. It is unquestionably true that the intent of the parties controls, and if they intend a present vesting of title it did in fact pass at once to L. [the vendee], and that, though the actual delivery was to be made subsequently and under the management of the vendor.”
Benjamin on Sales, § 309, says :
“Both of these contracts [the contract of sale and the contract to sell] being equally legal and valid, it is obvious that, whenever a dispute arises as to the true character of an agreement, the question is one rather of fact than of law.”
The agreement is just what the parties intend to make it. If that intention is clearly and unequivocally manifested, caclit quiestio. This rule is again laid down in Howell v. Pugh, 27 Kan. 702. The intention of the parties, therefore, governing, and upon a dispute as to what the intention was, it being a question of fact, we merely look to the findings, which clearly show that it was the understanding and intent of the parties that the title did and should pass at once, viz., on the 8th of February, 1890. Is this finding sustained by the evidence? We think it is. Where an action has been tried by the court without the intervention of a jury, and the court makes special findings, the findings of the court are as conclusive in an appellate court as the verdict of a jury; and when each finding of fact is sustained by some evidence, this court will not order the finding set aside, or grant a new trial, although the evidence be of the most unsatisfactory character, and although thereon this court, if sitting as a nisi prius court, might reach different conclusions of fact. (Gibbs v. Gibbs, 18 Kan. 419.) This has been the rule uniformly recognized from the existence of the supreme court down to the present time. (Backus v. Clark, 1 Kan. 303.) In the first reported case of this court, (Westerman v. Evans, 1 Kan. App. 1,) the same rule was reiterated. As we have said, this finding is sustained by the evidence. In fact all the findings of the court in this action are sus tained not only by some, or even a preponderance, but by all, the testimony.
The judgment in this case will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gar ver, J. :
These two cases involve substantially the same facts, and the decision in each case turns upon the answer which shall be given to the question : Can the individual liability of a stockholder in an insolvent corporation be enforced through the summary proceeding by execution against the estate of a deceased stockholder which is ill course of settlement in the probate court? Our attention has not been called to any case in point, and we have found none, but, upon principle, we think the question must be answered in the negative. In these cases, judgments were obtained against the corporation, executions issued, and returned "No property.” Thereafter, on motion of the plaintiffs, and after due notice to the administratrix of the estate of T. M. Achenbach, deceased, who was a stockholder in the corporation at the time of his death, the court made an order awarding execution against the estate of the deceased for the collection of the judgments against the corporation. This decision is assigned as error by the administratrix.
The status of the property of a deceased person is fixed at the time of his death. When an administrator has been duly appointed and qualified, the assets of the estate pass into the custody of the law as far as is necessary for the settlement of the estate and the payment of the debts and liabilities of the deceased. Except as provided by the statute, no creditor can thereafter, through any legal remedies, secure preference in the payment of his claim. The statute fixes the classification of demands against the estate, and provides for their payment in accordance therewith. (Gen. Stat. 1889,' ¶"2864.) The preferred claims are: First, funeral expenses; second, expenses of last sickness, wages of servants, expenses of administration ; third, debts due the state ; fourth, judgments rendered against the deceased during his lifetime. After the payment of the foregoing, and not until then, can general creditors, without special liens, demand payment of their claims. A demand against an estate may be established by &' judgment of the district court. (Gen. Stat. 1889, ¶2870.) But unless it is for the enforcement of a specific lien, before the judgment creditor is entitled to payment of his judgment, it must be filed and classified in the probate court. (Gen. Stat. 1889, ¶"¶2884, 2885.) The liability of a stockholder in an insolvent corporation is of the nature of a liability on contract, and survives against the legal representatives of a deceased stockholder. (Flash v. Conn, 109 U. S. 371; Richmond v. Irons, 121 id. 27.) This liability may be determined by an ordinary action in the district court, or established by proceedings in the probate court, which has “jurisdiction to consider and determine all demands against any estate.” (Gen. Stat. 1889, ¶2871; Nolan v. Hazen, 44 Minn. 478.) The summary proceeding by execution does not result in a judgment against the estate of the deceased stockholder. It is not a determination which can be made the basis of proceedings in a court other than that in which the judgment against the corporation was rendered. (Hentig v. James, 22 Kan. 326; Howell v. Manglesdorf, 33 id. 194.) The only purpose and object of the proceeding is to authorize the issuing of an execution against property. Beyond that the finding and order of the court do not go. In principle, we see no difference between such a proceeding against the estate of a deceased stockholder and an application for an execution on an ordinary judgment against; the administrator in his official capacity. It needs no argument to show that the common remedies by execution and attachment, which are generally available to a creditor for the purpose of enforcing his judgment, cannot be used, after the death of the judgment debtor, to reach the assets of his estate. As said in Strouse v. Lawrence, 160 Pa. St. 421:
“If this can be done as to one asset of a decedent’s estate it can be done as to all, and any creditor with a claim sufficient to absorb the whole personal estate of a decedent can, by process of attachment execution on a judgment obtained after the death of the decedent, appropriate the entire estate to the payment of his debt, to the exclusion of all other creditors.”
We know of no reason why one seeking to enforce the liability of a deceased stockholder in an insolvent corporation should be put upon a more favorable footing than an ordinary judgment creditor of the deceased. The law contemplates that all general creditors having demands of the same class against the estate of a deceased person shall be upon an equality, and shall be paid pro rata out of the estate in the due course of its administration in the probate court. To permit an execution to be issued against the assets of an estate in the hands of an administrator in favor of any creditor or claimant would do violence to the whole spirit of the law concerning the settlement of the estates of deceased persons, and would result in an unwarranted interruption of any orderly administration. If it be suggested that the order of the court need not be carried out by the actual issuance and service of the execution, the query arises, For what purpose was the order made? If it is not to be enforced, why this useless expense to the estate? We are clearly of the opinion that this summary remedy is not available in such cases.
The order of the court awarding execution will be reversed and the cases remanded, with directions to overrule the motions for execution.
All the Judges concurring.
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The opinion of the court was delivered by
Fontron, J.:
The tragic events giving rise to this lawsuit took place on the evening of January 2, 1971, when the defendant, William H. Hamilton, III, and Gary Buhler, his friend and fellow insurance salesman, “went out on the town”, so to speak, in Hutchinson, Kansas. Their evening ended with an innocent third party dead, with Gary Buhler shot through the neck, and with the defendant Hamilton facing charges of first-degree murder and aggravated battery. The jury which heard the case returned a verdict of guilty of murder in the first degree and fixed the punishment at death. It also found the defendant guilty of aggravated battery. The defendant’s motion for a new trial was overruled and he was sentenced to be executed. Subsequently The trial court amended the sentence to one of imprisonment for life on the charge of first-degree murder and also imposed a sentence of from five to twenty years for aggravated battery. The defendant, to whom we shall hereafter refer either as Hamilton, or defendant, brings this appeal.
A number of eating or drinking spots appear to have been visted that fatal evening. During their rounds Hamilton and his companion each consumed a quart of wine and an undetermined number of beers. In process, the defendant, who was armed with a derringer and carried a tear-gas pen, became unruly, displaying his pistol at one of the last places visited and discharging his tear-gas pen. On being asked to leave the establishment the two men moved on to another restaurant where Hamilton again became boisterous and Gary Buhler went outside, got in Hamilton’s car, and fell asleep.
Latea-, at about 11 o’clock, Hamilton was driving his car south on Adams Street in Hutchinson, with Buhler in tow, when a car driven by Michael Dean Latimer pulled into the street ahead of him. Hamilton trailed the car for several blocks, blinking his lights and blowing his horn. When Mr. Latimer finally pulled over to the curb and stopped Hamilton stopped also. After stopping, Latimer and his fiancee, Gail Palstring, got out and walked to the rear of their car, where they met Hamilton as he walked up from his car. Hamilton ordered Miss Palstring to get back in the car, which she proceeded to do, but not before she heard Hamilton tell Mike Latimer that the police were after him, that he was drunk and he wanted to ride in the back seat of Mike’s car. Mike refused, stating that the back seat was full. After she got back in the car Gail heard a few mumbles and then a gun shot. Gail got out and found Mike lying face up, his head by the rear wheel, and with blood on his forehead. She attempted to pull him away from the wheel and then got in the car and drove back to the home of the couple they had just left. The manager of a nearby motel called police and officers soon arrived at the scene. They took Mike to the hospital where he died about 3 a. m. from a single shot in the head.
After shooting Mr. Latimer, Hamilton returned to his car and left in a hurry. Gary Ruhler, who had been awakened by the shot, remembered seeing somebody fall and seeing Hamilton running back to his car. When Gary asked what had happened, the defendant said he fired above the boy’s head to scare him, and not to worry about it. On being pressed feather for an explanation, Hamilton refused to answer and offered to take Ruhler to his car. Ruhler agreed, and as he was leaving the car he asked again for an explanation. At this point Hamilton shot him through the neck. Hamilton was arrested and taken to the police station later that night after he had rid himself of his pistol.
Against this background we turn to the points raised by Hamilton on appeal. They are two in number (1) the trial court erred in instructing the jury (instruction sixteen) as tO' the legal consequences of a verdict of not guilty by reason of insanity, the effect of such instruction being so prejudicial as to deprive him of a fair trial, and (2) the verdict is unsupported by evidence in that neither premeditation nor malice was shown. We shall consider the points in order.
In drafting instruction sixteen, advising the jury with respect to the effect of a verdict of not guilty by reason of insanity, the trial court obviously was attempting to comply with the provisions of K. S. A. 22-3428 (Weeks 1974), reading as follows:
“(1) When a person is acquitted on the ground that he was insane at the time of the commission of the alleged crime the verdict shall be ‘not guilty because of insanity,’ and the person so acquitted shall be committed to the state security hospital for safekeeping and treatment.
“(2) Whenever it appears to the chief medical officer of the state security hospital that a person committed under this section is not dangerous to other patients, he may transfer such person to any state hospital. Any person committed under this section may be granted convalescent leave or discharge as an involuntary patient after thirty days notice shall have been given to the county attorney and sheriff of the county from which such person was committed.
“(3) In any case where the defense of insanity is relied on the court shall instruct the jury on the substance of this section.” (Emphasis supplied.)
Sections (1) and (2) of this statute were enacted by the 1970 legislature as part of the recent act relating to criminal procedure. (L. 1970, ch. 129.) These two sections, for practical purposes, are substantially the same in context as a former statute, K. S. A. 62-1532. Section (3), however, added a new dimension in 1971 when it was adopted by the legislature. (L. 1971, ch. 117, § 1.) It was pursuant to the mandate of section (3) that the court instructed on the effect of a not guilty verdict because of insanity and in so doing quoted, verbatim, the language of sections (1) and (2).
While the defendant now complains that instruction sixteen was prejudicial to the extent of depriving him of a fair trial, no objection was made at the trial on that ground and the record, itself, reflects no objection of any kind being lodged against the instruction. However, the state advises in its brief that Hamilton did object to the instruction, but solely on the ground that his plea of insanity was made before the effective date of the 1971 statute. Since this particular objection was not included in the specification of errors, it is not subject to being reviewed on appeal. (See cases, 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 177.)
The only challenge now made to instruction sixteen is simply this: that it prejudiced the defendant’s constitutional right to a fair trial and denied him due process. This point was not raised at the trial and the following statutes thus become pertinent: K. S. A. 60-251 (b) and 22-3414 (3) (Weeks 1974) both provide:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects 'and the grounds of his objection unless the instruction is clearly erroneous. ...”
In the recent case of Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 522 P. 2d 401, we said in this connection:
“Under K. S. A. 60-251 {b) no party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection, unless the instruction is clearly erroneous. (Bott v. Wendler, 208 Kan. 212, 453 P. 2d 100.)” (p. 900.)
See, also, Flett Construction Co., Inc., v. Williams, 210 Kan. 28, 30, 500 P. 2d 54, wherein we said that objection to instructions not presented to the trial court will not be considered by this court for the first time.
Was instruction sixteen clearly erroneous as a matter of law? We believe it was not. This conclusion is not based solely on the mandate of our own statute, for not even a statutory pronouncement may contravene constitutional due process.
Although we have not been apprised of any state, other than Kansas, having enacted a statute requiring the court to instruct as to the effect of a verdict of not guilty by reason of insanity, the question is not entirely new or novel — a good many courts around the country have had occasion to consider the problem. A majority, it would appear, have held it prejudicial to give an instruction of that kind, although other courts have taken an opposite view. (See 11 A. L. R. 3d Anno: Criminal Case — Instructions—Insanity, p. 737, et seq.)
We have not spoken definitively on the effect of 22-3428 (3), although in State v. Blake, 209 Kan. 196, 207, 495 P. 2d 905, we said that to include the verbatim text of former K. S. A. 62-1532 in the instructions was prejudicially erroneous when combined with the trial judge’s cross-questioning of a defense witness. In the Blake opinion we carefully refrained from passing judgment on the impact of 22-3428, previously adopted but not yet in effect. We did not mean to suggest that an instruction on the substance of 22-3428, standing alone, would be clearly erroneous.
However, we did have this to say in Blake on the subject of prejudice: that an instruction on the substance of the statute could “no doubt be a two-edged sword. In some cases it may assure a reluctant jury that their acquittal of an ‘insane’ defendant will not immediately ‘put him on the bricks.’ In others it may achieve the result we perceive here, warning the jury that such a result may be achieved all too soon.”
In our opinion, the view which was expressed in Lyles v. United States, 254 F. 2d 725 (D. C.), reflects a rational view of the fitness of this instruction where sanity has been placed in issue. One of the points raised in Lyles was whether the trial court erred in giving the following instruction:
“ ‘If a defendant is found not guilty on the ground of insanity, it then becomes die duty of the Court to oommit him to St. Elizabeths Hospital, and this ’the Court would do. The defendant then would remain at St. Elizabeths Hospital until he is cured and it is deemed safe to release him; and when ■that time arrives he will be released and will suffer no further consequences from this offense.’ ” (p. 728.)
The holding of the federal court on this point was phrased in this fashion:
“This point arises under the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation. But we think that doctrine does not apply in the problem before us. Tire issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9, 1955. It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.” (p.728.)
The Supreme Court of Michigan in People v. Cole, 382 Mich. 695, 172 N. W. 2d 254, after saying it “felt” that Lyles v. United States, supra, was “the better reasoned authority” proceeded to hold that where the defense of insanity Was present the defendant, upon his own request, or upon request of the jury, was entitled to an instruction in accord with the Lyles case. The court’s opinion contains the follo wing language:
“This appeal makes it mandatory that this Court choose between: (1) the possible miscarriage of justice by imprisoning a defendant who should be hospitalized, due to refusal to so advise the jury; and (2) the possible ‘invitation to the jury’ to forget 'their oath to render a true verdict according to the evidence by advising them of the consequence of a verdict of not guilty by reason of insanity.
“We conclude that the reasons given in support of the first proposition far outweigh the fear of juiy integrity expressed in the second proposition.” (p. 720.)
In State v. Shoffner, 31 Wis. 2d 412, 143 N. W. 2d 458, the trial court refused to instruct the jury as to what the effect would be should it find the defendant not guilty by reason of insanity. As to this issue the Wisconsin court observed it would have preferred the instruction be given although it did not consider its refusal to have been prejudicial error.
Kuk v. State, 80 Nev. 291, 392 P. 2d 630, is quite to the point. In that case, the trial court instructed the jury that if defendant was found not guilty by reason of insanity, the finding would have the same effect as if he were regularly adjudged insane and he would be ordered confined to the Nevada State Hospital until regularly discharged according to law; and that if confined in the state hospital, the defendant might be discharged if, in the opinion of the hospital superintendent, he had recovered from his mental illness. On appeal, the Nevada Supreme Court held it was not reversible error “to instruct the jury about the consequences of a verdict of not guilty by reason of insanity.”
In State v. Wade, 96 Conn. 238, 113 A. 458, the appellate court said it was within the discretion of the trial court to instruct with regard to the effect of acquittal on the ground of insanity but the court’s refusal to give such a charge upon request could not be assigned as error, since the judgment to be entered on the verdict was for the court.
While we cannot say instruction sixteen was clearly erroneous as a matter of law, we believe it went further than the legislature had intended. K. S. A. 22-3428 ( 3) (Weeks 1974) does not require that the statute be quoted verbatim, only that the jury be instructed as to its substance. The statute provides, in part, that a person committed thereunder may be granted convalescent leave or discharge as an “involuntary patient” after thirty days notice to the county attorney and sheriff. The conditions under which an “involuntary patient” may be discharged or given convalescent leave and the procedures therefor are not set out in 22-3428; resort must be had to other statutes. (K. S. A. 1974 Supp. 59-2924.) We cannot presume a legislative intent that all the statutory details be incorporated in an instruction to the jury. In the Lyles case the court commented that “a recitation of the statutory procedure in great detail, such as reading the entire section of the statute” might tend to be confusing. It is our opinion the legislature intended only that the jury be apprised that the defendant, if found not guilty because of insanity, would be committed to the state security hospital for safekeeping and treatment until granted discharge or convalescent leave as provided by law. This seems to us to be the substance of the statute and we believe an instruction to such effect will fulfill the spirit of the law.
At oral argument, Hamilton’s counsel advanced the contention, as we understood him, that instruction sixteen was unfair because qualified medical testimony as to the defendant’s sanity was lacking. We cannot agree with this assessment of the evidence. Two experienced members of the Lamed State Hospital staff, both medical doctors with special training in psychiatry or neurology, testified on behalf of the state on the issue of sanity, while two specialists connected with Menninger Foundation, one a board certified psychiatrist, the other a clinical psychologist, were witnesses for the defendant. Each of the four doctors had examined Mr. Hamilton personally and each was familiar with his past unorthodox history. While there were some differences in the background, experience and training of the doctors, and while the doctors for the state reached different conclusions than did those for the defendant, we cannot say the court erred in permitting all of them to testify as experts and to express their opinions in such capacity. As we see it, there was an abundance of testimony from competent witnesses to permit the jury to infer that Mr. Hamilton was sane at the time of the homicide.
The defendant’s final point goes to the sufficiency of the evidence to establish the elements of malice and premeditation, both essential components of first-degree murder as defined in K. S. A. 21-3401. (Weeks 1974) It is argued on behalf of defendant that he and the deceased were complete strangers, rebutting any inference of malice or premeditation.
This court has long held to the rule that malice in law may be inferred from the fact that a deadly weapon was used in a homicide. (State v. Earnest, 56 Kan. 31, 38, 42 Pac. 359; State v. Dull, 67 Kan. 793, 799, 74 Pac. 235; State v. Smith, 78 Kan. 179, 183, 96 Pac. 39; State v. Donahue, 197 Kan. 317, 319, 416 P. 2d 287; State v. Blake, supra, 202.) These cases accord with the view generally accepted in this countiy. (40 C. J. S., Homicide, § 78, p. 942.)
Whether premeditation may also be inferred from use of a deadly weapon is not so clear. As a general principle it would seem that use of a deadly weapon, standing alone, is not sufficient to establish premeditation. (1 Wharton’s Criminal Evidence, 13th Edition, § 135.) In an annotation contained in 98 A. L. R. 2d, Homicide— Premeditation, § 3, p. 1439, we find this statement of the rule:
“It appears to be generally agreed that the fact that the killing was effected by the use of a deadly weapon is not, of itself, a sufficient basis for a legal presumption that it was deliberate or premeditated. . . .”
While use of a deadly weapon is not alone sufficient to infer premeditation it is one of the circumstances which may be considered in determining whether a homicide was committed with deliberation. We find this discussion set out in 1 Wharton’s Criminal Evidence, supra, pp. 226, 227:
“According to some courts, if, in addition to the use of a deadly weapon, another circumstance is shown, such as the lack of provocation, the evidence may be of such probative force as to give rise to a presumption, as opposed to a mere inference that the homicide was premeditated and deliberate, thereby casting upon the defendant the burden of going forward with appropriate evidence to explain away such presumption. According to other courts, the existence of premeditation and deliberation which will raise the homicide to murder in the first degree may not be the subject of a legal presumption, but is a matter of inference which the trier of fact may or may not see fit to draw.
“Premeditation and deliberation can be found from various circumstances, such as the nature of the weapon used, the lack of provocation, the defendant’s conduct before and after the killing, . . .”
We believe the circumstances surrounding the homicide in this case, which included the use of a deadly weapon, were sufficient for the jury to infer premeditation as well as malice. The victim was unarmed and the attack upon him was unprovoked. After the shooting Mr. Hamilton disposed of his gun. From defendant’s actions in following the victim’s car, honking his horn and blinking his lights, it is not too much to assume he was angry and intended to pick a quarrel, by telling a cock and bull story and demanding to ride in the victim’s ear. In a very early case, State v. Kearley, 26 Kan. 77, we said:
“. . . If one party seeks an interview with another, arming himself for the encounter, intending deliberately that such other shall do some certain thing, or failing to do that, that he will kill him, such conditional intent is sufficient, if carried into effect by the homicide of the latter, to make murder in the first degree.” (p. 85)
In State v. Greenwood, 197 Kan. 676, 421 P. 2d 24, where the defendant shot his girl friend with whom he had quarreled, we said that “the record discloses an abundance of evidence for the jury to draw an inference of premeditation and malice aforethought, as well as an intent to kill the deceased.” (p. 686.) The same may be said in the instant case in view of all the circumstances.
The judgment of the court below is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from an order of the trial court granting summary judgment in favor of the appellees, Charles and Virginia Fancher, and against the appellant, Marysville Mutual Insurance Company (Marysville), for fire damage to insured premises. The premises were insured by Marysville and were the subject of a conditional sales contract in which the Fanchers were sellers, and Okla and Virginia Watts were purchasers. We are concerned with the right of the Fanchers to recover under a standard or union mortgage clause included in a policy of insurance which did not name them as the insured, but did name an escrow agent, Farmers and Merchants State Bank, of Derby, Kansas, as the “mortgagee [or trustee].”
On June 23, 1972, the Fanchers entered into an escrow contract with the Watts to convey to them a certain duplex located in the city of Wichita, Kansas, for the principal sum of $4,500. By the terms of the contract, $4,300 of the purchase price was to be paid by the Watts in equal monthly installments over a period of seven years, with interest on the unpaid balance at seven percent per annum. In addition, the Watts agreed to keep the premises insured at all times against loss by fire and other hazards for at least the unpaid balance of the purchase price. The insurance was to be written in a company acceptable to the appellees, with a purchaser-under-contract clause to the Watts, the proceeds to be payable to the parties as their interest may appear. A provision was included in the purchase contract requiring the sellers to execute a general warranty deed and place it in escrow with the Farmers and Merchants State Bank (Bank), which was to act as escrow agent for the parties.
On October 16, 1972, Okla Watts obtained a policy of fire insurance from Marysville covering the conveyed premises. The amount of coverage was $10,000 and the policy contained a standard mortgage clause naming the Bank as the “mortgagee [or trustee].”
On October 28, 1972, the property in question was completely destroyed by fire, and Okla Watts filed a claim seeking the proceeds of insurance under the policy. Marysville denied the claim of Watts. Subsequently, the Bank, on behalf of the Fanchers, made demand for the principal amount plus interest under the provisions of the standard mortgage clause contained in the policy. Marys ville likewise denied any obligation to make payments to the Fanchers, claiming the Bank was the mortgage interest holder under the terms of the policy and that the insurance company had no knowledge of the Fanchers or of the existence of their interest. Marysville refused to pay the fire loss, either to the Bank or to the Fanchers.
Consequently, the Fanchers brought an action in the district court against Marysville, its agent Carson-Campbell, Inc., and the Bank, claiming the Fanchers were third party beneficiaries under the insurance policy’s standard mortgage clause, and as such were entitled to the balance due on the escrow contract.
In its answer Marysville denied that the Fanchers had any rights under the provisions of the standard mortgage clause and, as an affirmative defense, alleged the contract of insurance had been rescinded and the premium returned to Okla Watts on the basis of the applicant’s misrepresentation of material facts contained in the application for insurance.
After the parties filed interrogatories and requests for admissions, the Fanchers moved for summary judgment on the ground the insurance policy contained a standard mortgage clause in favor of the Bank, under which they were entitled to judgment as a matter of law. After hearing argument on the matter, the court granted the motion for summary judgment and awarded the Fanchers $4,446.27, plus attorney fees.
On appeal, Marysville contends the Fanchers were conditional vendors and not mortgagees, and as such they had no right to the proceeds of insurance payable under the standard mortgage clause. In support of this view Marysville reasons that under the express terms of the standard mortgage clause the insurance company is contracting to insure the interest of a mortgagee and not the divergent interest of a conditional vendor. Marysville also contends that if the Fanchers were permitted to recover the company would be required to assume a risk which it has never had an opportunity to investigate, which it has never had a chance to evaluate, and which it has never had the option of accepting or rejecting.
Marysville further argues the Fanchers have no right to the proceeds from the insurance policy in question in that the policy expressly provides under the standard mortgage clause that the entire clause is void unless the name of the mortgagee or trustee is inserted on the first page of the policy. As the Fanchers were nowhere named in the policy it is Marysville’s contention that they are not entitled to the benefits and protection accorded by the standard mortgage clause.
The thrust of the Fanchers’ argument on the motion for summary judgment, as well as on appeal, was that the Bank was a “trustee” of the Fanchers, both in the escrow transaction and in the collection of the insurance proceeds. The Fanchers contend that as third party beneficiaries of the Bank’s trust position, they were entitled to bring an action on the independent contract of insurance created by the standard mortgage clause.
The standard mortgage clause contained in the insurance policy issued by Marysville to Okla Watts provided in part as follows:
“Loss or damage, if any, under this policy, shall be payable to Farmers and Merchants State Bank
609 North Derby
Derby, Kansas 67037
mortgagee [or trustee] as interest may appear, and this insurance, as to the interest of the mortgagee [or trustee] only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee [or trustee] shall, on demand, pay the same.”
In addition, the policy included a provision voiding the entire standard mortgage clause unless the name of the mortgagee or trustee was inserted on the front page of the policy in the space provided therefor.
The standard or union mortgage clause has been analyzed by this court on several occasions. We have been consistent in holding that such a clause creates a new and independent contract which entitles the mortgagee to recover under the policy of insurance, notwithstanding the effect of any act or neglect on the part of the owner or mortgagor of the property. (Insurance Co. v. Coverdale, 48 Kan. 446, 29 Pac. 682; Stamey v. Assurance Co., 93 Kan. 707, 150 Pac. 227.)
It should be noted that although the Fanchers were not named in the standard mortgage clause it was their interest for whioh protection was sought. While it is trae, technically speaking, the Fanchers held no mortgage on the insured property, there can be no doubt that as conditional vendors they had an insurable interest in the property sufficient to support a contract of insurance.
The original conveyance of the property from the Fanchers to the Watts was in the form of a conditional sale. Under 'the terms of the escrow contract a general warranty deed was to be deposited with the escrow agent, but not delivered to 'the buyers until full payment was made under the provisions of the purchase contract. Such a method of selling real estate has been a common practice in this state for many years and has been recognized by this court on numerous occasions. (Yost v. Guinn, 106 Kan. 465, 188 Pac. 427; Stevens v. McDowell, 151 Kan. 316, 98 P. 2d 410.)
When this court has considered the effect of selling land by a conditional sales contract, we have likened the transaction to that of a mortgage. In Yost v. Guinn, supra, we stated the general rule to be that where land is sold in part upon credit, under a contract that the deed is to be made upon completion of payment of the agreed price at a fixed time, the relationship of the parties is substantially that of mortgagor and mortgagee.
.Support for this view can be found in 5 Williston on Contracts, § 792, [3d Ed. 1961], wherein the author states:
“Where as generally happens the buyer is given possession of the land the case might well be, and, indeed, should be, distinguished from an ordinary executory contract to buy and sell. Even in the case of personal property where there is no right to specific performance, much authority recognizes that the buyer in possession under a conditional sale is the beneficial owner, and the seller in substance a mortgagee. If this is true of personal property, it is still more clearly true of real property.
“The relation of a vendor and purchaser of realty even under a wholly executory contract has been likened to the relation of mortgagor and mortgagee. This seems inaccurate, but where the purchaser is given immediate possession and beneficial enjoyment of the land, the analogy seems a sound one. If so, the situation should be dealt with in the same way as a mortgage situation is dealt with. . . .” (pp. 773, 774.)
Even if the Fanchers are aocorded the status of mortgagees, Marysville -contends -they could -not recover in this action unless they were named in the policy. The Fanchers argue that the Rank was a trustee; that they were beneficiaries of the trust; and that since the -trustee was named in the policy i't was not necessary to name the beneficiary. If the policy can be -so construed the Fanchers should recover. The test to be applied in determining the intention of the parties to an insurance policy is not what the insurer intended the policy to mean, but what a reasonable person in the position of the insured would understand it to mean. Since an insurer prepares its own contracts, it has a duty to make the meaning clear, and if it fails to do so, 'the insurer and not the insured must suffer. Thus, if 'the terms of an insurance policy are ambiguous or susceptible of more than one meaning, the meaning most favorable to ’the insured must prevail. (Lavin v. State Farm Mutual Automobile Ins. Co., 193 Kan. 22, 391 P. 2d 992; Fowler v. United Equitable Ins. Co., 200 Kan. 632, 438 P. 2d 46; Blue v. Aetna Life Ins. Co., 208 Kan. 937, 494 P. 2d 1145.)
Marysville argues that the meaning of the term “trustee” as used in the standard mortgage clause was intended to be the equivalent of “mortgagee.” In support of the position that the terms mortgagee and trustee are equivalent, Marysville cites two Pennsylvania cases which state the word “trustee,” when used in a standard mortgage clause, refers to the trustee under a deed of trust similar to and of the nature of a mortgage. (Clarke & Cohen, Appels., v. Real To Use, 105 Pa. Super. 102, 159 A. 454; Gen. Elec. Cr. C. v. Aetna Cas. & Surety Co., 437 Pa. 463, 263 A. 2d 448.)
We can readily see that in states such as Pennsylvania where trust deeds are authorized, such a construction of the standard mortgage clause is justified. In Kansas, however, where trust deeds are not recognized, we cannot say such a clause has the same meaning as it has in Pennsylvania, nor can we say the use of the word “trustee” has no significance.
We conclude the application of the words “mortgagee [or trustee]” to the interest held by the seller in the subject matter of a conditional sales contract creates an ambiguity. In these circumstances the meaning most favorable to the insured must prevail. The duties and functions of the Bank are sufficiently similar to that of a trustee that a person in the position of the seller could reasonably understand the policy to mean the Bank was acting 'as a trustee. It was stated in Nickell v. Reser, 143 Kan. 831, 57 P. 2d 101, that an escrow agent is not an agent at all but is sometimes referred to as the trustee of an express trust. We 'further conclude the Farmers and Merchants State Bank was designated in this policy as trustee for the Fanchers and they are entitled to recover the stipulated escrow balance as beneficiaries of the trust.
The judgment is affirmed, including the allowance for attorney fees made by the trial court. Application has been made for attorney fees for legal services in this appeal and by separate order the application has been allowed.
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The opinion of the court was delivered by
Prager, J.:
This is a controversy between a building contractor and an insurance company. The issue presented is whether under the undisputed evidence the building contractor was responsible for extensive damage to a residence resulting from the freezing and bursting of water pipes. The appellant-defendant is the Bremen Farmers’ Mutual Insurance Company which carried a homeowner’s casualty policy on the building. We will refer to it in this opinion as the insurance company. The appellee-plaintiff — cross-appellant is Leroy Black Lumber Company, Inc. We will refer to it as Black or the lumber company. With the exception of the issue of damages the evidence in the case is undisputed and is essentially as follows; During the year 1971 Leroy Black Lumber Co., Inc., built a house in Kiowa, Kansas, for Mr. and Mrs. Bernard Posch. The house was one-story, with three bedrooms, and built on a concrete slab with no basement. The house had an attic which was not finished for living quarters. During the summer of 1971 the Posches had trouble with the air conditioning. Black replaced a compressor in the unit but it still did not work properly. It would run continuously and yet not cool the house. When the weather turned cold in late 1971 and early 1972 the Posches began to experience difficulty with the furnace. They were unable to keep the house warm even though the furnace ran continuously. Mr. Posch was advised by one of the persons who worked on the house during its construction that he should look in the attic to see whether the insulation had been installed. He found that the insulation was still rolled up and placed in a corner of the attic. The attic was entirely uninsulated. Obviously Black had failed to complete its work of insulating the attic.
Posch immediately complained to Black. Black sent its employees to complete the insulation in January 1972. Black’s employees left the job on February 2, 1972. On the next day, February 3, the Posches discovered that they had no water. They immediately called Black who advised them that the pipes had probably frozen and that they should thaw out by evening. Mr. and Mrs. Posch left for work at 8 o’clock in the morning and returned late that afternoon to find their home flooded by water coming through the ceiling. Mr. Posch testified that as he entered the front door it was like walking into a shower. He immediately turned off the water. On the following morning he went to the attic where he discovered that the water pipes were broken. The water had definitely come from the broken water pipes. Mr. Posch also discovered that the water pipes were still uninsulated. They were lying on the ceiling joists on top of insulation which had been laid by Black’s- employees under the water pipes. The water pipes themselves were not covered with insulation and were wholly unprotected from the freezing temperatures to be expected in the attic in winter months.
The morning after the damage occurred Mr. Posch met at his home with representatives of Black Lumber Company and with Dwayne Brownlee, the defendant’s insurance adjuster. They inspected the house to determine the extent of the water damage. Following their inspection the insurance adjuster turned to Leroy Black, president of the lumber company, and asked him if he would take care of it. Mr. Black told him- he would. Instructions were then given by Black to start repair on the house and in due course the repairs were completed. Upon completion of the work Black presented the insurance company a bill for repairs in the amount of $7,220.78. This the insurance company refused to pay.
Because of the extensive water damage the Posches could not occupy their home during the period it was being repaired. The family stayed at Mr. Posch’s employer’s house for about two weeks, then moved into a hotel and later rented a house in Kiowa until the repairs were completed. The Posches moved back into their home in April of 1972. While the house was being repaired the insurance company settled the loss with the Posches and obtained from them a release and subrogation receipt by which the Posches assigned to the insurance company whatever claims they had against anyone for water damage to the house and its furnishings. As consideration for the settlement the insurance paid to Mr. and Mrs. Posch sums in the total amount of $3,888.15 for damage to personal property and for additional living expenses which the Posches incurred because they had to move out of their house while it was being repaired. It is clear that the insurance company further agreed to assume any costs of repairing the Posch home.
At this point a controversy arose between Black and the insurance company as to Black’s liability for the water damage to the Posch house. The insurance company refused to pay Black’s bill for repairs amounting to $7,220.78. The insurance company demanded from Black the sum of $11,091.92 less a credit in the amount of Black’s claim which the insurance company contended it was entitled to under their subrogation receipt from the Posches. The parties were at loggerheads and this litigation followed. Throughout the litigation Black’s position has been that it repaired the house at the request of the insurance adjuster and therefore it is entitled to be paid for the value of its services in the amount of $7,220.78. The insurance company stipulated that this amount was a reasonable charge for the repair work completed by Black. The defendant insurance company has consistently maintained that Black breached its warranty under its construction contract by failing to perform its work in a good workmanlike manner. The insurance company contended in its counterclaim that the failure to insulate properly the water pipes in Posch’s attic caused the pipes to freeze and burst resulting in the water damage to the house and furnishings. Black filed a reply to the counterclaim in which it denied any responsibility for the water loss and in addition pled an affirmative defense of estoppel. Black’s theory of estoppel in substance is that since the insurance adjuster requested Black to repair the house without advising Black that payment for the repair's would not be made when completed, the insurance company is estopped from asserting that Black is responsible for any breach of warranty.
With the issues thus determined at the pretrial conference, the case proceeded to trial before a jury. The insurance company admitted that if its cross-claim was denied, then it was hable to Black for the amount claimed for repairs, $7,220.78. At the trial the undisputed facts as set forth above were established by Leroy Black, by Dwayne Brownlee, the insurance adjuster, and by the insured Bernard W. Posch. In addition the insurance company called ns its expert witness William T. Slease, a general contractor and home builder from Wichita. Having heard the testimony of Black and Posch, Mr. Slease concluded that “terrible mistakes” were made in the construction of the house. Since the water pipes were in the unheated attic, in his judgment they should have been properly insulated from the extreme cold. It was a mistake to place the insulation under the pipes, because that prevented the heat from the house to come up through the sheetrock in the ceiling and warm the pipes. It was his opinion that if water pipes in the attic are left totally uninsulated, he would expect to- have exactly the problem that they had in the Posch house. He stated in substance that when Black laid the insulation under the water pipes in January and February of 1972, the original fault in failing to install the insulation at all was actually compounded. What happened was that the “repair” and the placing of the insulation under the pipes by Black’s employees totally cut off all heat from the pipes. He was firm in his opinion that the construction of the Posch house by Black did not meet the ordinary standards of good workmanship since the water pipes had not properly been insulated and protected from the cold. This testimony was absolutely undisputed. We fail to see why the issue of Black’s liability was even submitted to the jury by the trial court. The undisputed testimony was that Black, the contractor, had not properly insulated the water pipes in the attic, the water pipes froze, then burst, and the escaping water damaged the Posch’s home and its contents.
When the trial court submitted the question of Black’s liability to the jury, it refused to instruct on Black’s affirmative defense of estoppel. After deliberation the jury returned its verdict in favor of the lumber company in the full amount of its claim, $7,220.78 plus interest, and denied the counterclaim of the insurance company. The defendant insurance company then filed a motion for a new trial and for judgment on its counterclaim. These postjudgment motions were denied by the district court. The insurance company has appealed to this court contending in substance that the jury verdict was contrary to the uncontroverted and undisputed evidence and that the insurance company was entitled to judgment as a matter of law on its counterclaim. Leroy Black Lumber Company, Inc. has filed a cross-appeal contending that the trial court erred in refusing to give an instruction on its affirmative defense of estoppel.
We will first consider the appeal of Bremen Farmers’ Mutual Insurance Company. We have concluded that this case should be reversed and remanded to the district court with directions to retry the case on the sole issue of the damages which the insurance company is entitled to recover under its counterclaim. We are, of course, reluctant to set aside the verdict of a jury. We do not know how the jury in this case could have arrived at its verdict in view of the undisputed and uncontroverted evidence presented at the trial. We are convinced on the record before us that this case presents a proper one for the application of the rule that a jury is not authorized arbitrarily or from partiality or caprice to disregard uncontradicted and unimpeached testimony, nor to disregard the only evidence upon a material question in controversy and return a verdict in direct opposition thereto. (Lorbeer v. Weatherby, 190 Kan. 576, 376 P. 2d 926.) We recognize that while it is not the province of this court to weigh the evidence, it may determine that there is or is not sufficient evidence to support the verdict. (Collins v. Morris, 97 Kan. 264, 155 Pac. 51.) Here it is agreed that Black constructed the house and installed the insulation. There is no evidence to contradict the fact that the insulation was installed in an unworkmanlike manner and that this caused the water pipes to freeze and burst causing the damage to the Posch home. We cannot find any evidence in the record to justify the contention of appellee Black that the insurance company failed to prove that the lumber company’s acts caused the broken pipes or that the pipes were frozen or that freezing caused the pipes to break causing the water to escape. All of these matters were clearly established by the testimony of Leroy Black himself and by the undisputed testimony of William T. Slease, the building inspector from Wichita.
We have concluded that the trial court erred in refusing to enter judgment on the issue of Black’s liability for the water damage to the Posch house. The case should have been submitted to the jury solely on the issue of the damages which the insurance company was entitled to recover under its counterclaim. The amount of damages is clearly in dispute. The insurance company stands in the shoes of its insured, Mr. and Mrs. Posch, and therefore may recover whatever damages the Posches could have recovered from Leroy Black Lumber Company, Inc. had the Posches brought the action. The measure of damages to be applied in this case has not been made an issue on the appeal and has not been briefed by counsel. If there is a dispute as to the measure of damages we will leave that question for the trial court to determine after the parties have presented their evidence at a new trial on that issue.
We now turn to the cross-appeal of Leroy Black Lumber Company, Inc. It is based on the single point that the trial court erred in refusing to submit to the jury estoppel as an affirmative defense to the counterclaim of the insurance company. We have concluded that the trial court was entirely correct in this regard and that this is not a case where a defense of estoppel could be maintained. Ordinarily a party is not estopped by an act which does not mislead his adversary so as to cause him to act to his prejudice or disadvantage. (Tri-State Hotel Co., Inc. v. Sphinx Investment Co., Inc., 212 Kan. 234, 510 P. 2d 1223.) Under the undisputed evidence here the Black Lumber Company was at fault in causing the water damage to the Posch home. We cannot see how Black changed its position in relying on any statements made by the insurance adjuster. The insurance adjuster requested Black to repair the premises on the day immediately following the loss. We can reasonably assume that Black made a profit on its contract to repair the Posch house and that it was to its benefit to make the repairs itself rather than to pay for repairs made by another contractor. We believe that it would work an injustice in this case to apply the doctrine of estoppel since the Black Lumber Company was clearly at fault and should not escape the consequences of its own wrongful act. We hold that the trial court ruled correctly in refusing to submit the issue of estoppel to the jury.
For tihe reasons set forth above the judgment of the trial court is reversed on the appeal and the case is remanded with directions to the trial court to retry the case on the issue of damages to be recovered on the appellant’s counterclaim. We find the cross-appeal without merit and it is denied.
Schroedeb, J., not participating.
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Per Curiam:
This is an appeal from a denial of a motion for release from custody pursuant to K. S. A. 60-1507.
Appellant stands convicted of assault with felonious intent and murder in the second degree. His first trial was for murder in the first degree and assault with felonious intent. The verdict was guilty on both counts. Upon appeal the assault conviction was affirmed, but a new trial was ordered on the murder charge. (State v. Bloomer, 192 Kan. 581, 390 P. 2d 29.) In the second trial the verdict was murder in the second degree. Upon appeal this conviction was affirmed. (State v. Bloomer, 197 Kan. 668, 421 P. 2d 58.)
Appellant then first sought relief under K. S. A. 60-1507, alleging he was denied counsel of his own choice from arrest to arraignment; that he was interrogated in the absence of counsel and the state manufactured a confession during the interrogation which was used against him in the trial. The trial court denied this motion stating that all the grounds alleged had been raised in his second direct appeal. Appellant did not appeal.
Later the present motion was filed, claiming error in the admission of evidence of a prior conviction during the second trial. The evidence was inadmissible, he says, because he did not have counsel at the time of the prior conviction, and because he had not put his character in issue.’ In denying the motion the trial court calls attention to the fact that the only evidence of the prior conviction was given by appellant’s own testimony on direct examination, and by his mother testifying on his behalf. Appellant cannot predicate error on actions taken by him in his own defense. (State v. Grider, 206 Kan. 537, 479 P. 2d 818; State v. Phippen, 208 Kan. 962, 494 P. 2d 1137.)
The remaining issue raised by appellant goes to the lack of counsel at his preliminary hearing. This issue was fully considered by this court in the second direct appeal.
The judgment is affirmed.
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The opinion of the court was delivered by
Foth, C.:
This is an action to enjoin the construction of an automobile sales and services facility in a zoned residential area on the outskirts of Parsons, brought by seventeen neighboring homeowners. The trial court held that a “variance” under which the defendant, Gribben-Allen Motors, Inc., secured a building permit and justified its proposed construction, had been validly granted by the Labette county board of zoning appeals and denied the injunction. Plaintiffs have appealed.
The primary issues on appeal are whether there was evidence to support a finding that enforcement of the zoning order would cause defendant “unnecessary hardship,” and whether the variance was consistent with the “general spirit and intent” of the zoning order — both conditions precedent to the granting of a variance under K. S. A. 19-2934a.
The origins of this controversy go back to early 1970, when the city of Parsons made overtures toward zoning the area outside the city but within three miles of the city limits. After considerable public debate, in mid-March, pursuant to K. S. A. 1969 Supp. 12-715b, the city formally notified the county of its intent to act if the county didn’t. The city’s publicly announced concern was over the “orderly development of highway approaches” to Parsons.
Faced with a petition by around 600 rural residents urging them to do so, the county commissioners on April 16 announced their decision to zone the three-mile perimeter themselves, rather than let the city do it. A resolution establishing the county planning commission and setting the zoning wheels in motion became effective on May 20, 1970.
On November 12, 1970, the zoning plan and regulations adopted by the county commissioners went into effect. Included in the plan was a residential area extending about nine-tenths of a mile to the west of the Parsons city limits on either side of West Main Street, which is also U. S. highway 160. Of this particular strip the development plan map notes, “Policy: Discourage Strip Commercial Development Contiguous to U. S. 160.”
In the meantime defendant’s corporate predecessor took an option on and purchased a ten acre tract with a 380 foot frontage on U. S. 160, in about the middle of the .9 mile residential area. The purchase was consummated in June, 1970, after the county had formally determined to zone the area but before the effective date of the zoning. The purchase price was $12,000. The announced reason for the purchase was the establishment there of the car dealership at some indefinite time in the future. At the time the existing site of the business was being condemned by the Parsons urban renewal agency.
Some three years later defendant first sought authority to place its business on the tract in question. The defendant’s president, Larry Allen, approached the Labette county planning commission on May 10, 1973, and was told to present a petition for rezoning. This he did, and on June 1, 1973, his petition was considered by the planning commission at a special hearing held for that purpose. Allen gave as his reason for wanting the rezoning that the urban renewal agency had just raised its price for commercial property in downtown Parsons from 270 per square foot to 500 per square foot.
The planning commission voted to deny the request, 4 to 3. The denial meant that under K. S. A. 19-2932 the county commissioners could not rezone the tract except by unanimous vote. It appears that two of the county commissioners looked on the change with favor and one did not.
In any event, sometime during the next month the county commissioners purported to appoint two additional members to the county planning board, which would have brought its membership to nine. When that body met again on July 12, 1973, Allen was back with a new rezoning petition, and two new members sought to sit with the commission. The chairman announced that on the advice of the county attorney the two additional members would not be permitted to participate. (K. S. A. 19-2933 states that the zoning commission “shall consist of seven (7) members.”) Allen at that point asked that consideration of his petition be put off for yet another month.
At the next meeting, August 8, 1973, the zoning commission again voted to disapprove the rezoning. Defendant filed a “notice of appeal” to the county commissioners, but with the outcome of their action already ascertained through an informal head count defendant took no steps to secure any decision from that body.
Instead, it pursued what it perceived as an alternate route to the same destination through securing a “variance” from the county board of zoning appeals. First, noting an apparent omission in the original resolution establishing the board of zoning appeals, its counsel presented to the county commissioners a proposed resolution conferring on the appeals board “all the powers provided for by Statute as set forth in Chapter 239, Laws of Kansas, 1951, as amended.” (That act is the county zoning act under which all proceedings were had, and now appears as K. S. A. 19-2927 et seq.) The proffered resolution was signed by two of the county commissioners on August 22, 1973.
The next step was an application for a variance to the five man board of zoning appeals. The application was heard on October 11, 1973. The minutes of that meeting reflect none of the evidence presented except as to who spoke, and none of the findings made except those relating to the size and cost of the lot and when it was purchased. After a closed discussion by the board the members voted in open meeting, 3 to 2, to grant the variance. A building permit was issued the next day.
After the October 11 meeting opponents of the project regrouped. They discovered a potential challenge to the eligibility of one of the members of the board of zoning appeals who had voted in favor of the variance. Accordingly, the chairman (an opponent and one of the plaintiffs) called a special meeting the next week at which the challenged member was excluded and one member was absent. The board voted 2 to 1 to rescind its prior action. Although a great deal of space in the briefs is devoted to the qualifications of the challenged member and the validity of the rescission order, in the view we take of the case we need not decide those issues.
Defendant, ignoring the order rescinding its variance, went ahead with its construction plans. On February 19, 1974, the first bulldozers appeared on the tract; the same day this suit was filed, alleging among other things that the board of zoning appeals exceeded its authority in granting the variance. A temporary restraining order was issued, but after a hearing the court refused to issue a temporary injunction. A stay was issued pending this appeal.
Subsection (b) of K. S. A. 19-2934a gives to a county board of zoning appeals the authority to authorize a variance in specific cases where “owing to special conditions, a literal enforcement of provisions of the order will, in an individual case, result in unnecessary hardship, provided that the spirit of the ordinance or resolution shall be observed, public safety and welfare secured, and substantial justice done.” The statute goes on to say:
“. . . A request for a variance may be granted in such individual case, upon a finding by the board that all of the following conditions have been met: (1) That the variance requested arises from such conditions which is unique and which is not ordinarily found in the same zoning district; and is created by the zoning order and not by an action or actions of the property owner or the applicant; (2) that the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or resident; (3) that the strict application of the provisions of the zoning order of which variance is requested will constitute unnecessary hardship upon the property owner represented in the application; (4) that the variance desired will not adversely affect tire public health, safety, morals, order, convenience, prosperity, or general welfare; and (5) that granting the variance desired will not be opposed to the general spirit and intent of the zoning order.”
The October 11 order of the board of zoning appeals had been prepared by counsel for the defendant. It was presented to and signed by the three members who favored the variance. The order recited a finding “that applicant purchased the real estate described in its request for a variance, for use as an automobile sales and service business prior to said real estate being zoned which restricted such use. That to prevent such use of said property by applicant will result in an injustice and hardship to applicant.” In addition it recited five findings which followed almost verbatim the five requirements enumerated in K. S. A. 19-2934a» quoted above. The extent to which the statute was paraphrased is negligible.
The trial court’s finding, insofar as the validity of that order is concerned, was that “The allowance by the Board of Zoning Appeals of the variance from the Zoning Regulations to defendant herein for the location of its automobile sales and service business was lawful and reasonable and the Board of Zoning Appeals did not act fraudulently, arbitrarily and carpriciously in granting the variance to defendant and its order granting said variance is supported by the evidence.”
It went on to say, “The court further specifically finds under the evidence and the law that the court cannot substitute its judgment for that of the Board of Zoning Appeals at its October 11, 1973, meeting.”
As an abstract statement of law there can little quarrel with this latter conclusion of the trial court. It is a general principle of judicial review of administrative decisions that a court will not substitute its judgment for that of an administrative body in matters of discretion. This does not mean, however, that there is no room for the customary judicial review. A common statement of the scope of that review is that a court “is restricted to considering whether, as a matter of law: (a) the tribunal acted fraudulently, arbitrarily or capriciously; (b) the administrative order is substantially supported by evidence; and (c) the tribunal’s action was within the scope of its authority.” (Neeley v. Board of Trustees, Policemen’s & Firemen’s Retirement System, 212 Kan. 137, 510 P. 2d 160, Syl. ¶ 2, following Lauber v. Firemen’s Relief Association, 202 Kan. 564, 451 P. 2d 488.) The same standard is enunciated in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P. 2d 828, Syl. ¶ 1, followed by a description of our function on appellate review:
“In reviewing a district court’s judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.” (Id., Syl. ¶2.)
The task of this court, then, is to take the same look at the administrative action — i. c., the granting of the variance — as did the trial court. We are looking to see whether the order was “substantially supported by evidence” and whether the action of the board of zoning appeals “was within the scope of its authority.”
Those two issues are, in this case, interdependent. On the one hand, in determining whether the order was within the board’s authority, we must determine whether there was substantial evidence to support each of the five findings required by K. S. A. 19-2934a (b). On the other hand, to determine whether the evidence was sufficient, we must determine what those statutory requirements mean.
We look first to the statutory requirement (No. 3) that strict application of the zoning order will cause “unnecessary hardship” on the property owner. The board’s finding that it would, insofar as the record reveals, was based on two factors. The first was that the company bought the land before the zoning went into effect with the intention of moving its business there. The second was that to establish its new location at some other site which was suitably zoned would be more expensive. (Urban renewal prices had gone from 27 ‡ to 50<f per square foot for commercial property.) Counsel for the company suggests no other basis for the finding, and we can discern none.
The question then is: assuming those factors are established, do they demonstrate that the company will suffer the kind of “unnecessary hardship” contemplated by the statute if it is not permitted to put the land to its intended use? We think not.
Although we have not had prior occasion to construe our variance statute, it is of a variety commonly found in other states. A finding of “unnecessary hardship” or the equivalent is universally required, and the universal rule is that “the financial loss or the potential of financial advantage to the applicant is not the proper basis for a variance.” (Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A. 2d 743.)
In Garibaldi the applicants’ liquor store had been condemned for a new highway and they were forced to find a new location. In the area zoned for liquor stores no location was available that was not within a proscribed 1000 feet of an existing store. They bought a building anyway, and sought a variance. The board of zoning appeals granted one, finding “hardship” because of the condemnation and the unavailability of other property. An appeal by a competing liquor store owner was dismissed at the trial court level, but on appeal the Connecticut supreme court reversed. The basis for the rule quoted above — which, it was noted, is “well established” — was said to be that a variance pertains to the property, not to the owner. If the property is susceptible of productive use, the desires of a particular owner cannot be considered, for:
“. . . Hardships in such instances as these do not arise from the application of zoning regulations, per se, but from zoning requirements coupled with an individual’s personal needs, preferences and circumstances. Personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance.” (Id., 163 Conn, at 239-40.)
Similar statements, rejecting mere financial hardship to the particular landowner as a basis for a variance, may be found in the following cases, among others: Y. W. H. Assn. v. Bd. of Standards & Appeals, 266 N. Y. 270, 194 N. E. 751; Anderson v. Board of App., Town of Chesapeake Beach, 22 Md. App. 28, 322 A. 2d 220; Homan v. Lynch, et al., 51 Del. 433, 147 A. 2d 650; Bilotta v. Haverford Twp. Zon. Bd. of Adj., 440 Pa. 105, 270 A. 2d 619; Real Properties, Inc. v. Board Appeal, 319 Mass. 180, 65 N. E. 2d 199. See also, 8 McQuillin, Municipal Corporations, § 25.168; 2 Yokley, Zoning Law and Practice, § 15-12.
As to what does constitute such a hardship as to justify a variance, the cases say:
“The criterion of unnecessary hardship is that the use restriction, viewing the property in the setting of its environment, is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property; or that there is convincing proof that it is impossible to use the property for a conforming purpose; or that there are factors sufficient to constitute such a hardship that would in effect deprive the owner of his property without compensation. An unnecessary hardship exists when all the relevant factors taken together convince that the plight of the location concerned is unique in that it cannot be put to a conforming use because of the limitations imposed upon the property by reason of its classification in a specific zone.” (Peterson v. Vasak, 162 Neb. 498, 508, 76 N. W. 2d 420.)
Among other cases employing similar criteria are: Goodman v. Zoning Bd. of Cranston, 105 R. I. 680, 254 A. 2d 743; Patalano v. Zoning Bd. of Ea. Prov., 112 R. I. 533, 312 A. 2d 580; R-N-R Associates v. Zoning Bd. of Prov., 100 R. I. 7, 210 A. 2d 653; Beerman v. Kettering, 14 Ohio Misc. 149, 237 N. E. 2d 644; Matter of Calcagno v. Town Board of Webster, 265 App. Div 687, 41 N. Y. S. 2d 140; Frank v. Russell, 160 Neb. 354, 70 N. W. 2d 306; Puritan-Greenfield Assn. v. Leo, 7 Mich. App. 659, 153 N. W. 2d 162; Deardorf v. Board of Adjustment Etc., 254 Iowa 380, 118 N. W. 2d 78. See also, Anno., 168 A. L. R. 13; 2 Rafhkopf, The Law of Zoning and Planning, § 45-13.
In Peterson v. Vasak, supra, the land in question was an irregularly shaped triangular tract containing 13,619 square feet in a residential zone. The ordinance required 20,000 square feet for a single family dwelling and contained setback and side yard requirements which would be impossible to meet. The court observed that if the ordinance were literally applied, “the land is rendered by the ordinance unusable, is deprived of any practical economic use, and has no value.” (Id., 162 Neb. at 507.) It was just that sort of situation, the court said, that the variance procedure was designed to alleviate. The cases cited above, and many more, are in general accord. We find none to the contrary.
In the case at bar there was no evidence of any hardship of this kind if the ten acres were to be devoted to residential purposes. There was no claim that such use could not be profitably made of the land. Further, there was not even a claim that defendant could not locate its business elsewhere. The only “hardship” claimed was that another location would be more expensive. As we have seen, such a claim falls far short of being the type of hardship contemplated by the statute.
Defendant places much emphasis on 'the fact that its predecessor purchased the tract for business purposes before the zoning regulations became effective. We think this factor is largely irrelevant to the hardship issue. In the first place, zoning was in the wind when the option was taken, an(l was a future certainty when the option was exercised. When the zones were being established there was ample opportunity to ask for commercial zoning in the first instanoe. And, had the land been put to prompt use, under the zoning order defendant had a year from November 20, 1970, in which to apply for a nonconforming use permit.
Rut more fundamentally, the company’s intention when it bought the land simply does not form a basis for .a finding of “unnecessary hardship.” The zoning order creates no hardship for this landowner any different from that imposed on others who, before the zoning, might have conceived the idea of converting their land to a commercial use at some time in the future. If this factor were determinative, every farmer who ever eyed the comer of his land on the highway as a potential gasoline station could claim that zoning would cause him “unnecessary hardship.” As pointed out above, the desires of the landowner for pecuniary advantage come into play only when the regulation deprives him of any economically feasible use of his property. As we said in a slightly different context:
“Even if it were to be conceded that the highest and best use of this property is for an office building, the fact remains that if zoning determinations were to depend on this factor alone, the very purpose of zoning would be nullified and spot zoning would be the order of the day.” (Thurman v. City of Mission, 214 Kan. 454, 455, 520 P. 2d 1277.)
It must be borne in mind that we are dealing here with an administrative determination to grant a variance, and not a legislative determination to grant a rezoning. The distinction is recognized by our statute by the limitation imposed upon the board of zoning appeals that it must find “that granting the varianoe desired will not be opposed to the general spirit and intent of the zoning order.” (K. S. A. 19-2934a [b] [5].) Despite defendant’s contention that rezoning and a variance are merely alternative sources of relief, there is a substantial difference. “It is fundamental in construing the powers and duties of a board of appeals that it is limited by its properly delegated powers and that it cannot exercise legislative functions so as by the guise of a variance to actually change the law regulating the character and use of property in specified zones. No proposition of zoning law has been better settled by the courts.” (2 Yokley, Zoning Law and Practice, § 15-13, p. 187.)
Illustrative of the difference is Van Deusen v. Jackson, 35 A. D. 2d 58, 312 N. Y. S. 2d 853. There a developer had filed his subdivision plat in 1962, when the area was zoned Residence C. His thirteen lots each contained 20,000 square feet; C classification fixed the minimum at 15,000. In 1966 the town board, the legislative body, rezoned the area to Residence A, requiring a 40,000 square foot minimum. The developer redrew his map to cut the number of lots to nine, each with 25,000 square feet, and sought a variance. The board of zoning appeals granted it, and the trial court approved it as reasonable. The appellate division, however, reversed, noting:
“A zoning board of appeals cannot under the semblance of a variance exercise legislative powers [citations omitted]. The legislative body forms zoning policy in the shape of a comprehensive plan after ‘reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses’ [citation omitted]. The comprehensive plan, essentially general in scope, may cause disportionate injury to a property owner and, for the purpose of easing that injury, the board of appeals hears and determines individual applications for relief ‘in harmony with . . . [the] general purpose and intent’ of the ordinance [citation omitted]; and its determination to grant a variance must rest on ‘practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinances’ [citation omitted]. Thus, the statute makes plain that both the general purpose and intent of the ordinance, reflecting the policy of the legislative body, and the special case of the individual property owner, reflecting a practical difficulty or unnecessary hardship, must be considered by the board of appeals in varying the application of the ordinance.
“When the variance violates the general purpose of the ordinance, the board of appeals invades the province of the legislative body, and the grant is invalid for want of authority [citations omitted]. More precisely, the board of appeals must make certain that the effect of a variance would not introduce such an incongruity into the ordinance that the zoning pattern would be seriously disarranged. The size of' the parcel to be benefited by the variance thus becomes a significant factor.” (Id., 35 A. D. 2d at 60-61. The tract there in question was 7.365 acres, compared to the 10 acres here.)
The same distinction between the administrative and legislative functions in zoning matters is recognized in, among other cases: Josephson v. Autrey, 96 So. 2d 784 (Fla. 1957); Brown v. Beuc, 384 S. W. 2d 845 (Mo. App. 1964); State v. Kinealy, 402 S. W. 2d 1 (Mo. App. 1966); Farah v. Sachs, 10 Mich. App. 198, 157 N. W. 2d 9; In re Appeal Clements, 2 Ohio App. 2d 201, 207 N. E. 2d 573; State, ex rel. Humble Oil & Refining Co., v. City of Marion, 4 Ohio App. 2d 178, 211 N. E. 2d 667.
In Van Deusen v. Jackson, supra, the developer also made much the same hardship claim as defendant makes here, i. e., that he had made his plans and filed his plat before the more restrictive zoning went into effect. However, he failed in his proof of “hardship” in the same way defendant did here. The com! disposed of his argument in this way:
“. . . As was noted above, the power of a zoning board of appeals to vary the ordinance may be exerted only where the applicant demonstrates that the ordinance has created practical difficulties or unnecessary hardships. All that [the land owner] proved before the [board of zoning appeals] was that he had failed to develop his property before the time that the ordinance was amended to place it in a more highly restricted district. To put it bluntly, convenience rather than hardship to the developer was the evidence before the respondents; and that ground cannot serve as a foundation for the variance [citations omitted]. No proof was offered of economic loss growing out of a showing that reasonable return could not be expected from the property as zoned under the ordinance [citations omitted].” (P. 62.)
Defendants rely on Koch v. Board of County Commissioners, 185 Kan. 259, 342 P. 2d 163, in which this court upheld the granting of a variance to the Rell telephone company which permitted it to construct a garage for its service trucks in an area near Wichita zoned “surburban residential.” The county zoning statute then in effect (G. S. 1957 Supp. 19-2934) provided that the county commissioners could authorize the board of zoning appeals “to permit exceptions to, or variations from, the zoning regulations in the classes of cases or situations and in accordance with the purposes, standards, conditions and procedure specified by the county commissioners.” The Sedgwick county commissioners had granted such authority by a resolution requiring three findings to justify a variance:
“‘a) The exception or variance desired arises from a condition not ordinarily found in the same zoning district;
“‘b) The granting of the exception or variance will not unduly and adversely affect the rights of adjacent property owners;
“ ‘c) The exception or variance desired is not against the public interest.’ ” (P. 265.)
While this court did give weight to the fact that Bell had purchased the land before it was zoned, that was not the controlling factor. Of equal importance, there were commercial usages in areas immediately adjacent to Bell’s tract, it would be set back and suitably screened, and especially, there was a “public interest” in adequate telephone service.
On die last factor, the zoning order itself contained a specific provision (section 11F) authorizing special permits for buildings owned by public agencies or a public utility. Of this section the court said, “It must be apparent that section 11F is to be construed as a variance in the general zoning regulations for a public building or a building owned by a public utility. The zoning resolution would seem to recognize that because of the public interest in such buildings the general zoning regulations as to districts should not apply to such buildings in all force and rigor.” (Id., pp. 266-67.)
In Koch it was urged upon this court that a variance granted must be “limited by the spirit, intent, and purpose of the zoning resolution.” (Id., p. 267.) Insofar as this principle might lead to the conclusion that no nonconforming use could be permitted, this court rejected the argument. The zoning resolution granted variance authority to the board conditioned only on its making the three specified findings.
Koch was decided in July, 1959. At its next regular session the legislature enacted Laws 1961, Chapter 156, containing just two substantive sections. Section 1 of that act amended what is now K. S. A. 19-2934, dealing with the composition of the county board of zoning appeals. All references to the board’s powers were deleted, and instead were incorporated in section 2, which is now K. S. A. 19-2934a. As to' variances, the new statute incorporates the first two requirements of the resolution considered in Koch, i. e., the unique situation of the applicant’s land and the lack of adverse effect on adjacent landowners. However, in place of the third, rather general requirement of “public interest” relied on in Koch, the new statute requires three specific findings: unnecessary hardship, no adverse effect on the public welfare, and consistency with “the general spirit and intent of the zoning order.” Thus the power of such a board was severely curtailed by the legislature, and a view of the boards power which had been partially rejected by this court was positively enacted into law.
Whether this enactment was a direct legislative response to Koch we cannot tell, but the import of the chosen language is clear: the board of zoning appeals, in administratively granting a variance, cannot intrude upon the legislative authority of the board of county commissioners to the extent that the variance would amount to a substantial departure from the established zoning. The variance must comport with the general spirit and intent of the zoning order.
In the case at bar the effect of the variance is simply to rezone as commercial a ten acre tract in the middle of a residential district. The decision to do that, under the statute, is entrusted to the county commissioners and not to the board of zoning appeals.
We therefore hold that the granting of the variance was beyond the legal authority of the board of zoning appeals for two reasons: first, there was no evidence of “unnecessary hardship” as that term is used in the statute; and second, the board could not reasonably conclude that the variance was consistent with the general spirit and intent of an order zoning it as residential. It follows that the trial court erred in recognizing the validity of the variance and the building permit issued thereunder, and in refusing to issue the injunction prayed for.
The judgment is reversed and the case is remanded with directions to enjoin the construction of the proposed facility so long as it is justified under the present variance and building permit.
APPROVED BY THE COURT.
Fromme, J., not participating.
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The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal from defendant Freddie Laughlin’s conviction in the trial court of the charge of aggravated robbery, as that offense is defined by K. S. A. 1973 Supp. 21-3427. Defendant’s motion for a new trial was denied, sentence was imposed, and a timely notice of appeal to this court was filed.
Since the statement of points raised on appeal concerns alleged trial errors and not the sufficiency of the evidence, the facts leading up to defendant’s arrest need not be stated in detail. Suffice it to say that the state offered sufficient evidence at trial to show beyond a reasonable doubt that defendant and his accomplice robbed a liquor store at gunpoint of approximately sixty-three dollars on September 8, 1972. Although defendant was tried alone, his accomplice, Mack Ivory, had previously pleaded nolo contendere to a charge arising out of the same incident and was serving his sentence at the time of defendant’s trial.
During the trial of defendant, Ivory was called as a witness by the defense. His testimony on direct examination was to the effect that neither he nor defendant had anything to do with the robbery of the liquor store. On cross-examination of Ivory by the state, the court permitted the prosecuting attorney, over the objections of defendant’s counsel, to inquire into his plea of nolo contendere and robbery conviction.
Defendant argues as his first point on appeal that the trial court erred in allowing the state to cross-examine one of defendant’s witnesses as to a prior conviction for the purpose of impairing his credibility. An examination of the record shows the state questioned Ivory as to his present residence, which was the Kansas Reception and Diagnostic Center, and the fact that he was convicted of robbery from charges arising out of the same incident with which defendant was charged.
The question of the admissibility of evidence of the prior conviction of a witness to impair his credibility is governed by K. S. A. 60-421, which reads in part:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. . . (Emphasis added.)
Under this section no witness on cross-examination may be impeached concerning former convictions unless they involved crimes of “dishonesty or false statement.” Accordingly, the question to be determined in the instant case is whether a conviction for robbery constitutes a crime of dishonesty within the meaning of 60-421.
Crimes which are impulsive or which are committed in the heat of passion, or crimes which are founded on negligence, or crimes which in no way reflect a dishonest nature, would not normally reflect on the credibility of the witness and should not be admissible.
On the other hand, there are crimes which are inherently dishonest, whether because of their willful character, disregard for decency, or general lack of fairness. In State v. Price, 215 Kan. 718, 529 P. 2d 85, we concluded that the crime of robbery fell within this category.
Defendant’s additional claim of error raises the question of whether the impeachment of a witness on cross-examination by inquiring as to prior convictions of the witness is subject to' exclusion as being beyond the scope of direct examination. In the instant case the scope of the direct examination of Ivory was expressly limited to matters relating to his arrest on the night of the crime. It has already been pointed out, however, that on cross-examination the state questioned Ivory concerning his prior robbery conviction. Defendant contends the trial court abused its discretion by allowing the state to attack Ivory’s credibility when that issue was not raised on direct examination.
Both parties concede the general rule to be that the cross-examination of a witness must be limited to the testimony of matters raised on direct examination, or matters relevant thereto. While this court has traditionally followed this rule, we have noted, that exceptions thereto are a matter of discretion with the trial court. (State v. Guffey, 205 Kan. 9, 468 P. 2d 254.)
There is some authority for the proposition that the rule limiting cross-examination to the scope of direct examination does not apply when the cross-examination is used to test the credibility of the witness. (98 C. J. S., Witnesses, § 484, p. 372.) While this court apparently has never stated that view, we have consistently held that the proper scope of cross-examination is within the sound discretion of the trial court. (State v. Ralls, 213 Kan. 249, 515 P. 2d 1205; State v. Nirschl, 208 Kan. 111, 490 P. 2d 917.) Moreover, the propriety of allowing the state to go beyond the scope of direct examination to impair the credibility of a witness is supported by K. S. A. 60-420, which permits any party to examine a witness as to any conduct or matter relevant upon the issue of credibility. Although that provision is subject to the limitations of 60-421 and 60-422, the only restriction to matters raised on direct examination applies when the witness is the accused in a criminal proceeding. No similar limitation is placed on the cross-examination of a witness other than the accused, as to evidence of a conviction as affecting his credibility.
In view of the foregoing, we conclude that impeachment of witness Ivory on cross-examination by inquiring as to a prior robbery conviction of the witness was proper and the trial court did not abuse its discretion in permitting the inquiry.
The judgment of the trial court is affirmed.
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Per Curiam:
The plaintiff, Barbara Green, brings this action against the City of Garden City, Kansas, for injuries allegedly received when she tripped and fell over a protrusion in a public sidewalk. Summary judgment was entered in favor of the city and plaintiff has appealed.
The incident occurred as plaintiff was walking in front of the premises at 414 North Main Street. It was stipulated that the protrusion was “a comer of a concrete slab in the sidewalk which is one-quarter (M") inch higher than the rest of the sidewalk.” In response to written interrogatories plaintiff stated: “I did not see the protrusion at the time I was walking as the protrusion is so slight and subtle that to the average person exercising reasonable care walking down the sidewalk, the same is not visible.”
Defendant’s motion for summary judgment was sustained on the ground that “the defect about which plaintiff complains does not constitute a sufficient hazard to establish liability for negligence in this case.” On appeal the plaintiff contends the question of whether the rise in the sidewalk constituted a defect was a factual question which should have been submitted to a jury.
In our opinion the facts of this case bring it within the rule relating to municipal liability for damages resulting from sidewalk defects as the same are set forth in Roach v. Henry C. Beck Co., 201 Kan. 558, 442 P. 2d 21. In that case we upheld the trial court in sustaining a motion for summary judgment filed by the city of Wichita on the premise that a slight and inconsiderable defect in a city sidewalk provides no basis for actionable negligence, even though a pedestrian may trip and injure herself by reason thereof. The court went on to say:
“. . . It is well settled in this state that a city is not required to maintain perfect sidewalks. A city is not an insurer of the safety of pedestrians. Its duty is to maintain them in a reasonably safe condition for public use. . . .” (p. 560.)
The defect involved in the foregoing case consisted of a square wooden cover, three-fourths of an inch thick, which had been placed over a hole in the sidewalk.
In Roach, this court cited numerous authorities which support the rule of nonliability for inappreciable or minimal variances in the surface level of a public sidewalk. (See, e. g., Biby v. City of Wichita, 151 Kan. 981, 101 P. 2d 919; Blankenship v. Kansas City, 156 Kan. 607, 135 P. 2d 538.)
We find no error in the ruling of the court below and its judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Foth, C.:
In this case a father s right to custody of his three small children is contested by a couple to whom he entrusted them in a time of need. On appeal from the juvenile court, the district court awarded custody to the father, Richard H. Eden. The couple who had temporary custody, Donald and Mabel Pluger, have appealed.
In March of 1971 the forty-three year old Eden found himself in Kansas City and out of work. From his divorce he had custody of three-year-old twin girls and a sixteen-month-old boy. He was unable to care for them adequately and their condition was deteriorating. At that time he sought help through the church he had attended, and after some discussion ended up placing the children with the Plugers. In July he went to seek work in Phoenix, Arizona, where he had previously lived and where he had a brother.
On August 19, 1971, this proceeding was instituted by Donald Pluger by the filing of three petitions in the juvenile court alleging that each child was dependent and neglected. The purpose was to give legal sanction to the Plugers’ custody so they could consent to medical treatment. An ex parte order granting them temporary custody was entered the same day.
No further action was taken in the dependency and neglect proceedings until February 4, 1972, when Eden filed a motion to have custody returned to him. He had found employment in Arizona, remarried, and established a new home. The Plugers, nevertheless, had refused to return his children and had confronted him with their temporary custody order.
The juvenile court held no hearing, either on the original petitions or on Eden’s motion, until November, 1972. In the meantime a “home study” was requested of the social welfare department in Phoenix to look into Eden’s present home situation. That department reported, “We feel Mr. and Mrs. Eden can take good care of Mr. Eden’s children.”
On November 27, 1972, the juvenile court found the children dependent and neglected, and that they had been so continuously since March, 1971; it left their custody with the Plugers. Eden appealed to the district court three days later.
That court: held no hearing until January 3, 1974, at which time it entered the order from which the Plugers now appeal. They secured a stay pending the appeal and still have custody of the children.
After the required trial de novo the trial judge concluded that, although the Plugers would be able to provide the children a more “stable” home, it had no choice but to award custody to their natural father in the absence of a showing that he had willfully neglected them. He found no willful neglect on Eden’s part, and that at the time of trial they were not dependent and neglected on account of any willful act on his part. In addition, he made the following finding:
“The court further finds that Richard H. Eden, the father of the minor children, has remarried, has been working regularly, has established a home and is now able and is desirous and willing to have the care, custody and control of the children, and is willing and able to assume that responsibility.”
In our view this finding is controlling. While the appellants point to a number of alleged deficiencies in Eden’s character and conduct, their contention on appeal is that the judgment was “contrary” to the evidence. They make no contention that this or any other finding is not supported by substantial competent evidence. Neither they nor anyone else has ever formally alleged that Eden was an “unfit” person to have custody of his children. Certainly he has never been so declared judicially, and the evidence adduced here would not have compelled such a finding if the question had been an issue. No attempt has been made at any time to sever his parental rights. Under these circumstances our law is clear:
“A parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to custody as against grandparents or others who have no permanent or legal right to custody.”
“The general rule that a change of circumstances must be shown to obtain modification of a child custody order does not apply where there has been no adjudication of unfitness of the only parent seeking custody.” (Irwin v. Irwin, 211 Kan. 1, 505 P. 2d 634, Syl. ¶¶ 4, 5.)
To the same effect, see e. g., Hamm v. Hamm, 207 Kan. 431, 485 P. 2d 221; Gardner v. Gardner, 192 Kan. 529, 389 P. 2d 746; In re Vallimont, 182 Kan. 334, 321 P. 2d 190; Christlieb v. Christlieb, 179 Kan. 408, 295 P. 2d 658; Stout v. Stout, 166 Kan. 459, 201 P. 2d 637; Jones v. Jones, 155 Kan. 213, 124 P. 2d 457.
In addition to their “contrary to the evidence” argument, appellants say the trial court should not have considered the fact that Eden s “neglect” of his children was not willful but was the result of his being unemployed and on welfare. Assuming his “fitness” had been an issue, we think his motives and the circumstances surrounding his original surrender of the children would be highly relevant to that issue. Cf., In re Vallimont, supra.
Finally, in two of their points they say the court erred in finding it had no discretion to award them the children, and should have done so by determining what was in the “best interests” of the children. They note the trial court’s apparent reluctance to remove the children from their home where they seem to be flourishing.
The authorities cited above refute these contentions. The cases where we have held the “best interests” test applicable were all cases where the dispute was between parents. See, e. g., Patton v. Patton, 215 Kan. 377, 524 P. 2d 709; Dalton v. Dalton, 214 Kan. 805, 522 P. 2d 378; St. Clair v. St. Clair, 211 Kan. 468, 507 P. 2d 206. Where, as here, the dispute is between strangers and a natural parent who is not unfit and who is able and willing to care for the children, the parent’s right must prevail. This is so even though the trial court might feel that it would decide otherwise if free to oonsider only the “best interests” of the children, apart from the benefits to be derived from the love and care of the natural parent. In re Vallimont, supra, and the authorities cited therein.
The judgment is affirmed.
approved by the court.
Fromme, J., not participating.
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Per Curiam:
This is a disciplinary proceeding against Ronald W. Mayes, a member of the bar of this court. The board of law examiners has recommended that the respondent be disbarred. We concur in that recommendation.
The respondent was admitted to practice law in this state in 1965 under our reciprocity rule. He had previously been admitted in the District of Columbia. He established an office in Wichita, where his practice was confined almost exclusively to patent law and related matters. In the spring of 1972 two separate complaints were lodged against him which form the basis of this proceeding. One was by George M. Boyd, the other by. Larry Honn. Both are inventors who had employed respondent to file patent applications. While unrelated factually, each complaint generally charged respondent with overzealousness in the pursuit of his fees, neglect of the legal matters entrusted to him, failure to carry out his contract of employment, refusal to consult with his client, and prevarication in such communications as he had.
Respondent filed no written answer to either complaint, but did appear personally before the hearing panel and participated in two days of hearings on May 8 and 9, 1973. The panel submitted its report to the board of law examiners, which amended it and filed it with this court, as amended, on February 20,1974. Those portions of the amended report containing the board’s findings of fact and conclusions of law as to the two complaints are annexed to this opinion as an appendix and incorporated herein by reference.
On March 25, 1974, respondent filed a “Statement of Exceptions” to the board’s report, in which he took “general exception” to the report. The record was served upon him on April 9, 1974, making his brief due on May 9, 1974 under Rule No. 208 (e) (2). On respondent’s successive applications he was granted four separate extensions of time to file his brief until, respectively, June 8, 1974, July 8, 1974, August 15, 1974, and September 15, 1974. Further requests were denied, and respondent filed no brief to support his “exceptions.”
In the meantime respondent filed, at various times from June 19, 1974, through October 22, 1974, thirteen separate “motions to dismiss,” aimed at various specific conclusions of the board as to the Disciplinary Rules that had been violated. These were each overruled, some with leave to renew at the hearing on the merits.
Although by failing to file a brief respondent waived argument on the board’s findings of fact (Rule No. 208 [e] [4]), he nevertheless appeared personally before this court and made a full argument on his own behalf. That argument was addressed largely to factual matters, and he was permitted to exceed the time for argument normally allotted. The court had an opportunity to observe his attitude and demeanor. Before this court respondent was truculent, evasive, unresponsive to the court’s questions, and generally lacking in candor.
There is no need for the court to recount in detail respondent’s dealings with the two complainants; they are contained in the appended report of the board. We have independently examined the 472 page transcript of the hearing and the numerous and voluminous exhibits offered by respondent, and we have re-examined respondent’s various motions to dismiss. We find ample support for tihe board’s findings and conclusions.
The most serious aspect of the Boyd complaint is that after Boyd’s patent application was filed respondent refused to prepare a response to the patent offices “action letter” until he was paid fees claimed in the amount of $616.74 — even though failure to file the response in just over thirty days would result in an abandonment of the patent application and a complete loss of the idea Boyd had developed over a period of several years. Boyd and his associates had already paid respondent $2185.00 in fees and expenses; when asked to account for this sum, respondent refused to do so unless paid an additional fee for preparing an itemized statement. Respondent failed to keep an appointment with Boyd to discuss the matter, and indicated he no longer wished to talk to Boyd. To salvage the work already done Boyd was required to hire other counsel to meet the patent office’s requirements.
Respondent’s attitude toward his professional responsibility is reflected in the following exchange when he was a witness before the board:
"Q. Well, did you not feel some obligation after undertaking this work to secure the patent?
"A. No My — I’m a contract worker. They pay me to do something, I do it, and that’s it.
“Q. They had already paid you or you had been paid $2,185 from these people?
“A. It has been accounted for. It is contract work. I was paid in advance in those cases for the work I did. For the work I did, I got paid in advance. I got paid my fee for preparing and filing the patent application, and that was it. I have no obligation to them other than what I contracted to do. That is the way the patent business is run, and she’s a toughy.”
We agree with the board’s conclusions that by this conduct respondent neglected the legal matters entrusted to him (DR 6-101 A [3]) and placed his client’s rights in jeopardy (DR 7-101 A [3]). Such conduct was also prejudicial to the administration of justice (DR 1-102 A [5]) and reflected adversely on his fitness to practice law (DR 1-102 A [6]).
By way of defense to this charge respondent asserted, before the board, in his exceptions, and before this court in oral argument, simply that Boyd was not a “client” to whom he owed any duty. The real “client,” he asserted, was the group consisting of Boyd and his two associates, forming some sort of legal entity (which he does not name) distinct from the individuals who comprised it. Hence, he says, he was not required to conduct himself like a lawyer in his dealings with Boyd. We regard the assertion as disingenuous. Boyd was the inventor in whose sole name the patent application was filed, and Boyd individually was the sole addressee and recipient of respondent’s final bill for services. These facts, by themselves, are sufficient to make Boyd a client to whom respondent owed a lawyer’s duty of fidelity and loyalty.
In his dealings with Honn respondent asserted once again his inflexible rule that he did no work until paid in advance. Honn paid him $100 on August 31, 1970, and $900 more on December 15, 1970. The first $400 of this $1,000 was for patentability searches which were in fact performed. Whether the $600 balance was for one patent application, as Honn claimed, or a down payment on a $2,400 fee for four applications, as respondent claimed, is immaterial. The fact remains, and respondent admits, that no applica Rons were prepared unRl more Rian a year later, in early 1972. In the meanRme, in early 1971, Honn’s repeated requests to see respondent’s rough drafts were met by repeated evasions. Respondent assured Honn that the work was progressing, but repeatedly failed to keep appointments with his client. When they did meet, respondent said the files were at home.
Honn despaired of any results, and from March, 1971, until January, 1972, there was no contact at all between respondent and Honn. Then, on January 20, 1972, respondent renewed his contact with Honn. He demanded $1,700 in fees claimed to be due, with interest at 12% per annum from November 23, 1970. Honn’s renewed efforts to see any sign of respondent’s work product met the same fate as those of the previous year. Although respondent concedes the applicaRons were not in existence, he told Honn they were “at home.”
Honn once again gave up, and failed to keep his next appointment with respondent. Respondent, however, and in spite of his rule of “no pay — no work,” proceeded to prepare four patent applications and then sued Honn for $1,700 in fees. In magistrate court the judgment was in favor of Honn. An appeal to distnct court had been tried and was pending at the time of the hearing before the panel in this proceeding. Since that time judgment was rendered in favor of respondent for the fees claimed. Among respondent’s moRons was one to make the journal entry of that judgment a part of the record in this proceeding. Although the moRon was overruled at the Rme it was filed, the journal entry is of record in this proceeding and has been considered by the court in reaching its conclusion herein.
It appears that the judgment in respondent’s favor is based on a lack of evidence in that action (a) that Honn ever formally discharged respondent and (b) that respondent’s services were not reasonably worth $2,700. It amounts to a finding that, based on the law of contracts and the rules of the market place, Honn owes respondent his fees. It does not excuse the year’s delay in attending to the matters entrusted to him (DR 6-101 A [3]) or the failure to carry out his contract of employment within a reasonable Rme (DR 7-101 A [2]). Neither does it excuse the repeated failure to keep appointments with his client, his failure to communicate with his client for nine months, or his admitted lies as to the progress of his work and its whereabouts. Respondent’s pattern of conduct toward his client was unworthy of a member of the bar of this court (DR 1-102 A [6]).
Respondent’s defense to the Honn complaint, as set out in his statement of exceptions, was as follows:
“For emphasis, all matters transacted with Honn was on contract dealing with a patentability search of an invention disclosure and the preparation of four patent applications if sufficient patentable subject matter could be found in the invention disclosure. All of this was strictly within the province of the Patent Office. A registered patent agent could have handled it.”
This is a recurrent theme of respondent’s, running through all of his testimony, motions and argument. He takes the position that as a patent attorney he is bound by different standards of conduct than an ordinary lawyer, and that only patent attorneys are competent to judge him. We reject that contention. As a member of the bar of this court he is bound to observe the Code of Professional Responsibility adopted by this court as Rule No. 501 (214 Kan. Ixxv). The canons and rules “voice general standards of behavior required of members of the legal profession and define a level of conduct below which no attorney may fall without making himself liable to disciplinary action.” (Ibid.) See State v. Alvey, 215 Kan. 460, 463-4, 524 P. 2d 747. Respondent cannot evade his responsibility to this court, to the bar and to the public, by asserting that he was performing services which could lawfully be performed by a non-lawyer. See State v. Schumacher, 214 Kan. 1, 10-11, 14-17, 519 P. 2d 1116.
Finally, the board found that respondent’s conduct at the hearing before its panel violated numerous Disciplinary Rules, listed in its summary. While the board’s discussion of these infractions is omitted from the appendix, our examination of the record reveals that the board’s findings are fully justified. Respondent’s attitude toward these proceedings is reflected in the following excerpt from his exceptions:
“Respondent also herewith elects to put in issue and does put in issue the qualifications and ethics as attorneys and where applicable the judicial code of ethics of the judiciary of all members of the Kansas Bar and especially the prosecuting attorney for the State of Kansas in this case, the three Law Examiners in this case and the members sitting on the Kansas Supreme Court, in the matters of the report and the complaints, and the related activities of parties preliminary thereto.”
Similar unwarranted aspersions on the integrity of the attorney general and his assistants, the board of law examiners, and the bench and bar abound in the record. Without regard to whether this conduct would be grounds for discipline standing alone, we have considered it as relevant to the disposition of the violations charged and proven under the two complaints.
We agree with the board that respondent “is guilty of disregarding the duties of honesty, fidelity, candor and fairness he owes to his clients, the complainants herein, and that he is an unsafe person to manage the legal affairs of others.”
The respondent is disbarred.
APPENDIX
REPORT, FINDINGS AND RECOMMENDATIONS OF HEARING PANEL
The Complaint of Larry Honn
Larry Honn, hereinafter referred to as Honn, complains generally that he hired respondent, RONALD W. MAYES, hereinafter called Mayes to cause a patent search to be conducted on four ideas or inventions, and, later, to prepare a patent application on the most promising one of the ideas; that although he paid a total of $1,000.00 (representing $400.00 for the patent searches and the $600.00 fee for one (1) patent application) he was not shown the application until sued by Mayes about a year and one-half later in the Court of Common Pleas of Sedgwick County for an additional fee; that while he made several trips to Mayes’ office to see the application, when he arrived it was always at Mayes’ home or Mayes did not keep the appointments, all as set out in his complaint, a copy of which is attached hereto marked “Complainant’s Exhibit 1” and made a part hereof.
Mr. Mayes did not file a written answer to the complaint, but, as gleaned from his testimony, he claims that there was initially an oral agreement between he and Honn to conduct a patent search on Hoim’s ideas and that Honn would be charged $100.00 for each search made by the professional searcher in Washington, D. C.; that only three (3) such searches were made; that when the search report was received and the matter discussed with Honn an agreement was made wherein Honn agreed to pay $2400.00 for four (4) patent applications; that Honn paid $100.00 at the initial office conference on August 31, 1970, and $900.00 on December 15, 1970; that the total payment represented payment of $300.00 on the searches and $700.00 to apply on his fee of $2400.00; that Honn promised to pay the balance of $1700.00 owing to him but never did; that Honn had been told that his total fee was due in advance.
After hearing all evidence and taking the matter under advisement the Panel finds as follows:
That on August 31, 1970, Mayes and Honn had their initial conference in Mayes’ office and discussed Honn’s ideas or inventions; that Honn had three (3) ideas he presented to Mayes and as a result of their conversations a fourth idea developed; that Honn authorized Mayes to conduct a patent search of the information disclosed in the four (4) ideas; that Honn paid $100.00 to Mayes at the initial conference and agreed to pay $100.00 for each search made by the professional searcher in Washington, D. C. (hereinafter called Halpert); that Mayes told Honn that four (4) searches would be run. During this conference Mayes told Honn that in preparing a patent application he would prepare a rough draft and then he and Honn would go over it, correct it, and keep making rough drafts until they got it right; that several telephone and office conferences were had between Mayes and Honn during the time the searches were being made, both to discuss the progress of the searches and to discuss details of the ideas.
That on October 23, 1970, an office conference was had between Mayes and Honn during which they discussed the results of the patent search; that Halpert had conducted the patent search in Washington, D. C. in the Patent Office, and had made his report by letter to Mayes, enclosing copies of several patents touching on or relating to Honn’s ideas; that the letter report of Halpert was not shown to Honn but the enclosed patents were reviewed by Honn and copies of some of them made in Mayes’ office and given to Honn during the conference.
That during the October 23, 1970 conference Mayes told Honn that all four ideas were patentable in his opinion; that at this and subsequent conferences Mayes told Honn that it would be easier to prepare all four applications at the same time; that an attorney’s fee of $600.00 per patent application was quoted to Honn; that a copy of a statement from Mayes to Honn dated October 20, 1972, indicating that charge is attached hereto marked “Respondent’s Exhibit A” and made a part hereof; that Honn told Mayes that he did not have the money for all four applications and he wanted to work with Mayes on a cash basis only; Honn authorized and agreed to pay for preparation of one (1) patent application and promised to pay the $600.00 attorney’s fee and the balance of the search fee at a later date.
On December 15, 1970, Honn paid $900.00 to Mayes; that it was represented to Honn, and he understood, that this amount represented a $300.00 balance on patent searches of four ideas and the agreed fee of $600.00 for preparation of one patent application; that thereafter several office and telephonic conferences were had between Honn and Mayes during January, February and March of 1971 concerning technical details of the application and inquiries concerning the status of the preparation of the application; that Mayes told Honn the matter was coming along; that dining the months of January, February and March of 1971, Mayes told Honn that the application was prepared and made appointments to see Honn in his office; that when Honn came to the office, Mayes would either (1) not keep the appointment (be out of the office); or (2) state that the applications were left at home; that this happened about six or eight times altogether; that each time Honn would travel from his home in Great Bend (and later, Sedgwick) to Wichita.
That some time during the period of January, February and March of 1971 Mayes sent Honn a letter demanding payment of $1700.00 and enclosed a promissory note for that amount; that the note called for interest at 1% per month on the unpaid balance until paid; that Honn threw the note and letter in the waste basket; that Honn determined that since he had received nothing for his money and was not able to see the rough draft of the application that he was wasting his time and determined to drop the entire matter; that he did not communicate that decision to Mayes.
In the ensuing months of the year 1971 there was no contact between Mayes and Honn; that in January of 1972 Mayes attempted to and did regain contact with Honn, discovering that Honn had, during the interim, moved to the City of Sedgwick, Kansas; that Mayes made demand for the attorney’s fees of $1700.00 plus interest at 1% per month from November 23, 1970; that a copy of his letter to Honn, dated January 20, 1972, is attached hereto marked “Respondent Exhibit D” and made a part hereof; that Honn again attempted to see the patent applications which Mayes stated were prepared and went to Mayes’ office; that Mayes again stated the application was at home; that another office appointment was made to go over the applications which Honn did not keep.
That in a subsequent conversation on the telephone Honn finally told Mayes he considered he was wasting his time and told Mayes not to do anything further on the matter; that he hadn’t received anything for his money and was not going to pay any more money.
The panel further finds that Mayes finally prepared four (4) documents, which he stated were the technical parts of the four (4) applications; that these were not prepared until after Honn told Mayes he would not pay any more money and not to do any more work on the matter; that they were prepared sometime between January 20, 1972 and March 9, 1972; that they were prepared incident to a lawsuit against Honn for the recovery of the fees Mayes claimed Honn owed him; that these applications were not shown to Honn until the trial in the Court of Common Pleas.
That in April of 1972 Mayes sued Honn in the Court of Common Pleas for the recovery of the fees and interest at the rate of 12% per annum; that a copy of the Rill of Particulars is attached hereto marked “Complainant’s Exhibit 2” and made a part hereof; and, upon trial of the matter, the Judge of the Court of Common Pleas found against Mayes; that the matter was appealed by Mayes to the District Court of Sedgwick County; that at the time of the hearing before this panel the matter had been tried in the District Court and was under advisement.
That Honn made demand for tire return of his papers and the application which Mayes had indicated was prepared but that Mayes refused to turn the documents over to Honn.
Discussion
It should be clear at the outset that the panel’s findings, discussions and conclusions in this matter relate only to Mr. Mayes’ conduct as an attorney and not as a patent attorney. Mr. Mayes correctly points out that none of the panel members are patent attorneys and while evidence was received (including expert testimony) relating to patent procedures, patent terminology, interpretations of the four patent applications prepared by Mayes and whether or not they were or were not in fact Honn’s ideas and related matters, the panel makes no findings on these matters and does not draw any conclusions therefrom.
The record is abundantly clear that Mayes had agreed to prepare one application for a fee of $600.00, but he refused to do so until he received additional monies which Honn had not agreed to pay.
Little weight can be given to Mr. Mayes’ testimony because of the inconsistency of his statements — Mr. Mayes himself stated a fee of $600.00 per application was quoted but insists this was on the basis of preparing four applications. The $600.00 per application fee with no reference to the number of applications is stated in Respondent’s own exhibits (Respondent’s Exhibit A). While Mayes on the one hand maintains there was an agreement in October and November of 1970 for a total fee of $2400.00 for four (4) applications, he later contradicts himself stating that until he had thoroughly gone over the search material from Hulpert and information received from Honn he did not know how many applications he would have had patentable subject matter for; that he did not know until January or February of 1971 whether he had sufficient information for four applications and that it would have been impossible for him to have entered into an agreement in October of 1970 that four (4) applications would be filed. He was therefore unable to determine in October or November of 1970 what the precise fee would be.
It is likewise difficult for the panel to accept Mr. Mayes’ testimony concerning the preparation of the applications. He maintains on the one hand that he does not do work until he is paid, but that notwithstanding this practice he does ultimately prepare the four applications nearly 'fifteen months after he last received money from Honn and even though he was not paid for all four. Mr. Mayes states:
“When you make a deal with a man, you’ve got to carry your end of the bargain, but if you know you’re not going to get paid, what are you supposed to do? Well, I didn’t know I wasn’t going to get paid. Well, I was supposed to mitigate damages in this case. If he would have been honest with me in 1971 he might have gotten off with the thousand dollars, but he strung me, he really strung me. Now I know the law and I know all the options on this thing. But I have the problem with other clients, when we have a problem, what do I do? Do I go ahead and work my head off and put in hundreds of hours and hope to come up with what he agreed to pay me? Or do I throw the whole thing in the wastepaper basket and forget the whole thing?” (T-343).
Mayes answers his own question in other parts of the 'transcript and among others, at T-332
“. . . he (sic Honn) said ‘How is the work coming along?’ I said, ‘You get the work when I get paid.’ It was like it was agreed. He said, ‘Well, I’m in your office now. Let’s see what you’ve done.’ He was a very aggressive individual and I said ‘It’s at home’.”
Notwithstanding his practice of not doing the work until he’s paid, it was Mayes who renewed contact with Honn in 1972; it was Mayes who prepared 'applications long after there was ample indication he would get no more money until Honn had seen the first application in rough 'draft form.
The conclusion is inescapable that the 'applications were not prepared incident to his employment by Honn, but were prepared to support his lawsuit.
Mr. Mayes’ position is made further unclear by his statement:
“You see, and once I’ve taken a deposit, I’m obligated to carry it through and that is my conclusion in this case.” (T-343)
The panel agrees with Mr. Mayes’ conclusion. He was obligated to carry through — but he didn’t. It is clear that in this respect Mr. Mayes violated DR 6-101 A (3) in that he neglected a matter entrusted to him; and DR 7-101 A (2) in that he failed to carry out a contract of employment entered into with a client for professional services.
When Mayes told Honn the applications were prepared, and, at other times, were at home, Mayes violated DR 7-102 A (5) in that he knowingly made a false statement of fact since at the time such statements were made the applications had not been prepared.
The panel further finds that Mayes refused to deliver the applications and papers of the client although the client requested them, all in violation of DR 9-102 B (4).
When he charged interest at the rate of 1% per month on alleged unpaid balance of his fee Mr. Mayes violated the provisions of K. S. A. Supp. 16-508 and DR 2-106 A in that he charged an illegal rate of interest on his fee.
Complaint of George M. Boyd
George M. Boyd, hereinafter called “Boyd”, complains generally that respondent procrastinated in handling his patent matters, refused to continue processing his patent application, jeopardized his patent rights, refused to provide an accounting for the charges respondent made, and refused to meet with him and discuss the billing. Mr. Boyd additionally complains of the manner in which a corporation set up by Mayes for Boyd and others was not a sound business and proper safeguards were not included, all as set out in his complaint, a copy of which is attached hereto marked “Boyd Compl. Exh. 1” and made a part hereof.
Mayes did not file an answer to the complaint with the Board. Mayes’ position, as gleaned from his testimony, generally was that he was hired by the corporation, paid by the corporation and dealt with Mr. Simpson. That he was a contract worker who didn’t work until he was paid and that he was not paid the final bills; that he was holding Boyd’s papers on the second patent application until he was paid and refused to perform any more work until he was paid.
After hearing all the evidence, and taking the matter under advisement, the panel finds as follows:
That there is insufficient evidence upon which to sustain a complaint of misconduct on Mayes’ part in connection with the forming or operation of the Corporation.
Boyd, a retired Major in the U. S. Air Force, developed an idea called “Dial-A-Base” while in the Air Force as a radar officer, which device or idea was a navigational aid for use by pilots and navigators. Boyd had been a Radar Officer in the Air Force and was knowledgeable in navigation. He had offered the idea to the Air Force and they had told him to patent it himself.
The idea was a device that portrays the academic information in the cockpit in a precise way, shows the distance and heading from one position to another, pre-plotted in circular chart form, and contains other precise aviation information related to the same area. It is a map and a new map concept.
That Boyd discussed the idea with Lee DeMoss and Wayne Simpson, advertising men, who suggested forming a corporation to exploit the commercial potential of the idea.
That the three men contacted Mayes in the early part of 1970 to form a corporation and get the idea patented. That Articles of Incorporation for Boyd-Simpson-DeMoss, Inc. were prepared and filed with the Secretary of State on April 17, 1970. That on March 23, 1970, Mayes was paid $400.00 for his work in incorporating Boyd-Simpson-DeMoss, Inc.
That on February 6, 1970, DeMoss and Associates paid $100.00 to Mayes to cause a search to be conducted in the U. S. Patent Office relating to the idea. The patent was to become a part of the corporate assets.
That Boyd discussed the results of the search with Mayes and Mayes was authorized to prepare a patent application on the navigational aid. That Mayes was paid $600.00 on March 19, 1970, for preparation of a patent application. That subsequently Mayes and Boyd conferred and ultimately went over a rough draft of the application. That on July 30, 1970, the final patent application was prepared and sent to the Patent Office for filing. That a check in the amount of $275.00 dated July 29, 1970, drawn on the Boyd-Simpson-DeMoss corporate account, was issued to Mayes for the patent application filing fee. That on July 29, 1970, Mayes was paid an additional $800.00 drawn on the account of DeMoss Associates for legal fees but Boyd did not know what work these fees represented.
That part of the fees paid Mayes were paid by DeMoss Associates, a business entity with which Boyd was not connected. That while Boyd was on active duty with the Air Force, Simpson was the chief executive officer for Boyd-Simpson-DeMoss, Inc., and conducted many of the affairs with Mayes. Simpson was also connected with DeMoss Associates. While Mr. Simpson did not testify, it was agreed that Mayes might secure an affidavit from Simpson and submit it as a part of the record (and if the Attorney General so desired, Simpson s deposition would be taken to afford the Attorney General an opportunity to cross-examine). No such affidavit has been filed by Mayes and he is presumed to have waived this privilege.
On November 5, 1971, Boyd, as president of Boyd-Simpson-DeMoss, Inc., wrote Mayes a letter, the original of which is attached hereto marked Exhibit “3” and made a part hereof, terminating Mayes’ services as the full-time coiporate attorney of Boyd-SimpsonDeMoss, Inc. and requested Mayes to forward all papers belonging to the corporation to the corporate address, 1009 East Second Street, Wichita, Kansas.
Mayes and Boyd had several conferences by phone and in the office during November and December of 1971 and January of 1972.
On November 30, 1971, Mayes claims he sent a letter to Boyd at the above corporate address enclosing the original corporate papers and claims that attached to that letter was a detailed statement of Mayes’ fees and expenses for his services. A copy of this letter and statement is attached to this report marked “Boyd Respondent Exh. B 5-9-73” and made a part hereof. This statement shows a balance due Mayes of $594.24. Boyd claims he received no such statement.
Boyd did receive Mayes’ letter of January 18, 1972, which is attached hereto marked “Boyd. Comp. Exh. No. 2,5-9-73” and made a part hereof. This letter notified Boyd:
“Enclosed is my statement in the amount of $616.74. Your pending United States patent application SN 59,634 entitled “Navigation Aid” will be held abandoned unless a complete response is filed in the U. S. Patent Office on or before February 22, 1972, to the Office Action dated November 22, 1971. My fees are payable in advance and the enclosed statement must be paid up to date in time to permit me to prepare the proper response to the U. S. Patent Office.”
In December of 1970 and January and February of 1971 Boyd contacted Mayes saying he never received any statements of accounting of Mayes’ fees and expenses and tried to get Mayes to give him an accounting. An appointment was made for Boyd to meet with Mayes to discuss the matter but Mayes didn’t keep the appointment. Boyd waited for over an hour for Mayes to show up. Boyd testified that later he called Mayes and Mayes told him
“. . . I remember specifically he had been out shopping and he said ‘Well, I don’t want to talk about that anymore, and I don’t want to see you any more’ and that was the end of it.”
That on February 2, 1972, Boyd wrote Mayes a letter, the original of which is attached hereto marked “Boyd Compl. Exhibit ‡£4, 5-9-73” and made a part hereof, in which Boyd stated:
“. . . We have asked for a complete accounting of your services and you have determined that this is an additional cost to us. Apparently you believe that you have sent an itemized billing to us. Our records do not indicate your billing. Another point which might have contributed to our misunderstanding is that work accomplished by your firm for BSDI is work accomplished for George M. Boyd. BSDI and George M. Boyd are one and the same in this matter.
In view of the above, we no longer need your services as either our corporate attorney or our patent attorney. Sufficient money has already been paid to you for the patent protection required. Please forward all records and patent applications with the appropriate Patent Office correspondence to me regardless of their state of completion without further delay. Not later than 3 February, 1972.”
Mayes did not return those requested documents.
In the several times that Boyd talked to Mayes concerning an accounting, Mayes agreed to provide an accounting but stated he would have to go back through his records and would have to charge Boyd for the work.
Mayes testified that the $600.00 received by him on March 19, 1970, was a deposit to apply on the cost of the first patent application but that this was later switched to a deposit to apply on preparation of a second patent application; that the cost of the first application was $1,085.00 including the filing fee. This was paid by the two checks dated July 29, 1970; that the $616.74 additional fee owed to him included a $200.00 charge to prepare the response to the patent office Action Letter and other expenses in connection with the corporation and other matters as related in his letter of November 30, 1971, to Boyd (Respondent’s Exhibit “B”).
That Mayes told Boyd he was prepared to provide him with a final draft of the second patent application when he was guaranteed by someone that he would be paid.
That notwithstanding the February 22, 1972, deadline by which a response to the Patent Office Action Letter must be filed or the application would be considered abandoned, Mayes testified:
“Q: Now, you were here when Mr. Ryan was testifying as to what was necessary to complete the application or complete the work to secure the patent on this invention of Mr. Boyd’s. Now, is his testimony correct that if something was not done on or about February 22 there was a very real possibility that the patent would be abandoned? He would never be able to patent this invention?
A: It is not a possibility. It is a fact. It would be held abandoned unless a complete response was filed by the declared deadline unless, of course, you asked and got an extension.
Q: Well, did you not feel some obligation after undertaking this work to secure the patent?
A: No. My — I’m a contract worker. They pay me to do something, I do it, and that’s it.
Q: They had already paid you or you had been paid $2,185.00 from these people?
A: It has been accounted for. It is contract work. I was paid in advance in those cases for the work I did. For the work I did, I got paid in advance. I got paid my fee for preparing and filing the patent application, and that was it. I have no obligation to them other then what I contracted to do. That is the way the patent business is run, and she’s a toughy.”
(T-429, 430)
Discussion
Mr. Mayes’ conduct as illustrated by the record exhibits an appalling lack of communication with his client, Boyd, and his client, Honn, and an absolute refusal to talk to Boyd after the February, 1972, telephone call. Mayes did not keep the last appointment with Boyd but did not cancel the appointment either leaving Boyd waiting for an hour. Mayes refused to give an accounting of his fees and expenses although by his own testimony he would only have had to copy Respondent’s Exhibit “B” and mail it to Boyd. He accuses his clients of being tricky, lying and of not paying him for his work.
While Mayes on the one hand recognizes that once he’s taken a deposit he has an obligation to his client to carry the matter through; he then feels no obligation to protect his client, Boyd’s valuable property, and prevent its being held abandoned by failure to file a response to the Patent Office Action Letter (until he is paid $200.00 in advance).
Conclusion
The panel concludes that Mr. Mayes has violated the following disciplinary rules with respect to the Royd complaint:
DR 1-102 A (5) in that he engaged in conduct that was prejudicial to the administration of justice;
DR 1-102 A (6) in that he engaged in conduct that adversely reflects on his fitness to practice law;
DR 6-101 (A) (3) in that he neglected legal matters entrusted to him;
DR 7-101 A (3) in that he placed his client’s property rights in jeopardy during the course of his representation of the client.
Summary
It is therefore the conclusion of the Panel that Mr. Mayes has violated the following rules of Professional Responsibility:
DR 6-101 A (3); DR 7-101 A (2); DR 7-102 A (5);
DR 9-102 B (4) and DR 2-106 A in respect to the HONN COMPLAINT;
DR 1-102 A (5); DR 1-102 A (6); DR 6-101 A (3) DR 7-101 A (3) with respect to the BOYD COMPLAINT.
It is further the conclusion of the Panel that in his conduct at the time of the hearing and his testimony therein, Mr. Mayes has violated:
DR 6-101 A (2); DR 7-106 C (1); DR 7-106 C (2);
DR7-106 C (3); DR 7-106 C (4); DR7-106 C (6);
DR 7-106 C (7); DR 1-102 A (5); DR 1-102 A (6) and DR 9-102 A (2);
and the Panel specifically finds that the respondent, Ronald Wayne Mayes, is guilty of disregarding the duties of honesty, fidelity, candor and fairness he owes to his clients, the complainants herein, and that he is an unsafe person to manage the legal affairs of others.
The panel, therefore, recommends that Ronald Wayne Mayes be disciplined by Disbarment.
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The opinion of the court was delivered by
Dawison, J.:
This appeal challenges the validity of certain ancillary orders issued in a divorce case.
The controlling facts, as gleaned from the pleadings, the evidence, and the statements of court and counsel, are as follows:
Plaintiff and defendant were married on May 1, 1934. It was plaintiff’s third marital adventure. They took up their abode in Wichita. For various reasons plaintiff transferred the title to all his considerable property, real and personal, to defendant. On January 5, 1936, defendant ordered plaintiff out of their Wichita home, bought him railway and Pullman tickets to New York, gave him $25 in cash, and warned him that if he did not go to New York and stay out of Kansas for a year she would have him arrested and jailed for some delinquency, of which the record gives no hint.
Plaintiff went as far as Kansas City, Mo., at which point he broke his journey and took a room at the Hotel Kansas Citian in Kansas City, Mo., and entered his address on the hotel register as 401 N. Belmont, Wichita, Kan. On the following night, January 6, about 10 o’clock, he went to the Grund hotel in Kansas City, Kan., engaged a room and gave his address at 401 N. Belmont, Wichita, Kan. Next morning, January 7, he left the Grund hotel and returned to the Missouri hotel, again giving that hostelry his Wichita address. At his request the Missouri hotel sent an order to the Grund hotel for his baggage. Later on the same day, plaintiff reappeared at the Grund hotel and asked for a room. This-was denied him. He applied to another hotel for lodgings, but was refused. He then returned to the Missouri hotel and stayed there that night. During the time plaintiff was oscillating between the two cities he had been drinking a good deal, as his liquor bills at the Hotel Kansas Citian revealed and as he himself admitted, and he was considerably under the influence of intoxicants most of the time.
On January 8 this action was filed in the district court of Wyandotte county, Kansas, on plaintiff’s behalf, against defendant, for a divorce. The grounds of the action are not of present concern, but in his petition he alleged—
“Plaintiff now is and has been for more than one year next preceding the filing of this action an actual, bona fide resident of the state of Kansas and now is an actual resident of Wyandotte county, Kansas.”
In his petition he listed a considerable amount of described properties, which he valued at $35,000, all of which he alleged were his; but that they all stood in the name of defendant; and that defendant threatened to and would dispose of such property as her own unless prevented from so doing by appropriate orders of court. He prayed that defendant be enjoined from disposing of any of the described properties and that a receiver be appointed to take charge of them under direction of the court.
On the same day, January 8, on a summary and ex parte hearing, the trial court issued a restraining order to defendant enjoining her from disposing of any property whatsoever.
On the same day, January 8, the trial court appointed a receiver-—
“Of all and singular the property of Frank E. Harwi and Jessie B. Harwi of every description,-kind and nature and of all moneys, claims in action, credits, real estate, sale contracts, real property and all other assets and property, be they real, personal or mixed, wheresoever situate, possessed by the parties or standing in the names of either or both of them to have and hold the same as an officer and under the order and directions of this court.
“Said receiver is hereby authorized and directed to take immediate possession of all and singular the property above described and to faithfully and fully administer it.
“Each of the parties hereto is hereby required and commanded forthwith upon demand of said receiver to turn over and deliver to said receiver the books, papers, accounts, moneys, deeds, property or vouchers for the property under their control and each of said parties is required to immediately execute and deliver to said receiver deeds for all real estate now owned or possessed by them and transfer and assign all of said properties to said receiver.
“The parties hereto and all persons in control of any of said property by, through or under them, are hereby enjoined and restrained from interfering with or disposing of any property of the parties hereto in any way except to transfer, convey and turn over the same to said receiver.”
Three days later, January 11, defendant by special appearance filed a motion to quash the service of summons on the ground that the action was improperly brought for the reason that plaintiff was not a good-faith resident of Wyandotte county.
On January 18, defendant by special appearance filed a motion to dissolve the restraining order which interfered with her possession and control of her property and to dissolve the order appointing a receiver. The grounds of this motion were the court’s want of jurisdiction because plaintiff was not a resident of Wyandotte county, and because of the court’s want of authority to place defendant’s property in the hands-of a receiver.
The propriety of the court’s ruling on the motion’to quash the service of summons cannot be reviewed at this time. That question must await the final judgment in the action. (Oil Co. v. Beutner, 101 Kan. 505, syl. ¶ 2, 167 Pac. 1061; McCandliss Con struction Co. v. Neosho County Comm’rs, 132 Kan. 651, 652, 296 Pac. 720.)
There is a suggestion in the plaintiff’s brief that defendant entered a general appearance in the divorce action in this wise: A Wichita attorney, Robert Foulston, as a friend of defendant, mayhap as a friend of the court also, called the presiding judge by long-distance telephone and informally suggested an interpretative construction of the trial court’s restraining order which would let defendant use some of her own money for necessities. The record reads:
“The Court: Well, let me say something about Mr. Foulston. Mr. Foulston called me over the telephone and said this woman had everything tied up. She didn’t even have means to get something to eat. He suggested that she be permitted to withhold from the — to withhold two hundred dollars, at least, to take care of the situation. I consented over the ’pbone that she should do that. But he said he didn’t expect to represent her.
[Counsel for Defendant] : “That is all right. And he is not representing her.
“The Court: He was just saying that to help her out at that time.
[Counsel for Intervenors] : “No question about that.
“The Court: I suppose that was complied with, wasn’t it, Mr. Ditzen?
“Mr. Ditzen [Receiver]: I don’t know what was done. I told Mr. Foulston it was agreeable to me.
“The Court : Well, if she needs any more money, of course we will provide for that.”
This incident is not fairly susceptible of a construction that a general appearance was entered in her behalf by an attorney authorized to represent her. (Brinkman v. Shaffer, Adm’r, 23 Kan. 528; 4 C. J. 1317, 1318.) Indeed, the record makes it clear that the trial court itself did not regard this incident as an entry of appearance, either general or special, on defendant’s behalf.
Coming now to the errors based on the issuance of the restraining order and the order appointing a receiver, and the trial court’s refusal to set those orders aside, these are, of course, appealable orders. A restraining order which has the effect of a temporary injunction is appealable. (R. S. 60-3302; Laswell v. Seaton, 107 Kan. 439, 441, 442, 191 Pac. 266.) So, too, the order appointing a receiver, or a refusal to change such an order, is also a proper basis' for an intermediate appeal although the party aggrieved thereby loses no right by waiting until the final judgment in the main case comes before the appellate court for review. Since the revision of the civil code (Laws 1909, ch. 182, as amended by Laws 1915, ch. 187; R. S. 60-3302) our early cases, like K. R. M. Co. v. A. T. & S. F. Rld. Co., 31 Kan. 90, 1 Pac. 274, no longer state our procedural law on this subject.
Did the district court of Wyandotte county have jurisdiction to issue the restraining order and the order appointing a receiver? The answer to these questions chiefly depends on the question whether plaintiff was a bona fide resident of Wyandotte county at the time the action for a divorce was begun. And although this court is precluded at this time from considering the question of plaintiff’s claim of residence in Wyandotte county insofar as it bears on the validity of the service of summons, we are compelled to go into that identical question in order to perform our judicial duty in respect to the questions properly requiring our decision.
What is the factual basis for plaintiff’s claim to have been a bona fide resident of Wyandotte county on January 8, 1936, when these ancillary orders of which defendant complains were issued? If the fact of plaintiff’s residence turned upon disputed oral testimony this court would cheerfully follow the usual practice — accepting as true the trial court’s findings on the controverted point. But here there is no controverted testimony. The controlling facts are not in dispute. Plaintiff was a resident of Wichita in Sedgwick county until the morning of January 5, 1936, when his wife turned him out of doors under threat of arrest and imprisonment. She provided him with railway and Pullman transportation and cash to go to New York, with an admonition to stay there, or at least to stay out of Kansas for a year. He conformed to that -admonition until he reached Kansas City, Mo. Thére he broke his journey, lodged in a Missouri hotel, and for the next day or two traveled aimlessly back and forth across the Missouri-Kansas state line, with no apparent definite purpose other than to indulge in intoxicating liquors. Certainly his staying overnight on January 6 at the Grund hotel in Wyandotte county, Kansas, did not establish a domicile in that county. Neither did his futile attempt to secure lodging at that hotel the next night nor at another family hotel in Kansas City, Kan., which declined to receive him at a late hour that night, have the effect of initiating a genuine, bona fide residence in Wyandotte county. He passed the night of January 7 in the Missouri hotel. In the Missouri hotel on the dates of January 5 and 7, and in the Kansas hotel on January 6, he gave his residential address as 401 N. Belmont, Wichita. Later he stated that this was a mere inadvertence arising from habit, but that transparent bit of self- serving testimony was entitled to no particular credence. Moreover, his manifest forgetfulness that Wichita was no longer his place of residence, if such was the fact, had the probative force of some affirmative evidence that he had not at the time consciously and intentionally adopted another location as a place of residence.
It is elementary law that to establish a residence two essentials are necessary — a deliberate intention to do so, and the carrying of that intention into effect by some appropriate and operative action. An intention alone to establish a residence is insufficient. Operative action without intention is likewise insufficient. All this has been expounded in the law books many times. (Ingraham v. McGraw, 3 Kan. 521; Hart v. Horn, 4 Kan. 232; Adams v. Evans, 19 Kan. 174; Ford Adm’x v. Peck, 116 Kan. 74, 225 Pac. 1054; Roberts v. Robertson, 123 Kan. 222, 254 Pac. 1026.)
Following the filing of this action plaintiff returned to the Missouri hotel for a day or two. His attorneys did make some arrangement with a woman who kept roomers in Kansas City, Kan., whereby it was agreed that he could have lodgings in her home; but when this record was made he had not yet taken up his abode thereat.
On such a record, can it be said that he was an actual bona fide resident of Wyandotte county at the time this action was begun, and when the ancillary orders were issued restraining the defendant from disposing of her property or any property standing in her name and appointing a receiver for such purpose? This court holds not. The requisite basis for the institution of the action — actual bona fide residence of the plantiff in Wyandotte county — did not exist. (R. S. 1933 Supp., 60-1502; Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122; Strackeljohn v. Campbell, 136 Kan. 145, 12 P. 2d 829; 19 C. J. 423 et seq.) Consequently the action was not maintainable, and the ancillary orders complained of were issued without jurisdiction. It follows that the judgment of the district court must be reversed and the cause remanded with instructions to dissolve the restraining order which purports to interfere with defendant’s disposition of her property or any property standing in her name or described in plaintiff’s petition, and to set aside the order appointing a receiver to take charge of such property or any part thereof. It is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
Six mortgage-foreclosure cases, all of which were commenced by the same plaintiff, have been consolidated on appeal, and the appeal in each of them has been taken by the plaintiff from the ruling of the trial court granting an extension of the eighteen-month period of redemption under the provisions of chapter 226 of the Laws of 1935, generally known as the second moratorium act of 1935.
These cases are all more recent than the case of the Kansas City Life Ins. Co. v. Anthony, 142 Kan. 670, 52 P. 2d 1208, and contain fewer references to the force and effect of the earlier moratorium acts and the rulings of the trial court thereon. The only substantial difference between the facts involved in these cases and those in the Anthony case is that the redemption period was granted in connection with the order confirming the sheriff’s sale instead of being a part of the foreclosure judgment as in the Anthony case, although the journal entry of judgment in all these cases did contain a statement that the defendant was entitled to such "equity of redemption as set by this court and provided by law.” The eighteen-month period of redemption was definitely and specifically granted in connection with the confirmation of sheriff’s sale, and no good reason has been suggested why such ruling was not as effective under the circumstances. The decree of confirmation was a judgment of a competent court and became res judicata just the same as one fixing the amount of the indebtedness and rendering judgment against the defendant therefor.
There being no new or different matter raised in these cases from those already decided, the judgments are reversed.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Wedell, J.:
This was a habeas corpus proceeding in which the district court ordered the discharge of two women whose paroles had been revoked by the police judge of the city of Wichita. From the order discharging the prisoners respondents have appealed.
Respondents are the chief of police and the police judge of the city of Wichita. Petitioners were on the 6th day of May, 1935, arrested by a police'officer in the city of Wichita, on the grounds of having narcotics in their possession, for vagrancy and as dope fiends. They pleaded guilty to the charge of vagrancy and were sentenced to one year in the city jail. On the 29th day of July, 1935, petitioners were paroled by the police judge. The police records did not disclose the conditions imposed by the paroles. In the habeas corpus proceedings there was conflict of evidence with regard to the conditions imposed. On behalf of petitioners there was evidence they were paroled on the condition they leave the city of Wichita, and remain away for a period of one year. One of them also testified that she spoke to the police judge and inquired whether she could return to the city of Wichita for the purpose of procuring a divorce, and that she was told she could return at any time. The verified return of the writ signed by the police judge specifies the conditions of the paroles as follows: “On condition that they leave the city of Wichita and remain outside of said city until one year after May 6, 1935, and that they violate no law of the state of Kansas or ordinance of the city of Wichita.” As to leaving the city of Wichita the evidence of respondents was that petitioners desired to leave the city of Wichita and return to Oklahoma City, where they had relatives. In other words, that petitioners suggested that condition themselves. Respondents did not rely upon the condition of petitioners leaving the city of Wichita as a valid condition of parole, but contended that since petitioners sought a parole on the ground they leave the city of Wichita, they should not be permitted to violate their own promise in that regard and thus avoid serving the remainder of their sentence. Respondents contended the other conditions of the paroles were also violated.
When petitioners were originally apprehended one of them had morphine in her possession which she had obtained at a drugstore under a prescription from a doctor. She stated to the officer she was going to use the morphine by reason of a head injury. On that occasion the officers found cooking outfits and eight needles, together with a spoon and a tobacco can lid used for dope in petitioners’ rooms. Petitioners returned to Wichita on about the 12th day of August, 1935, and were again apprehended by the police, and the paroles were revoked. There is a conflict of evidence as to whether there was a hearing at the time the paroles were revoked. In the habeas corpus proceeding the arresting officer testified he arrested petitioners in an alley about ten o’clock at night on August 12 while they were talking to a man back of a lunch room. He stated:
“They were doped up and they talked rather incoherently. He couldn’t understand all that they were saying. They had trouble in maintaining a perfect equilibrium. They had a hazy look in their eyes, and to his knowledge were under the influence of dope. There was no smell of liquor upon them. The women were not searched at the time, but certain dope equipment was taken off of them by t-he matron. . . . When petitioners first noticed him while in the alley they started to run. ... He picked the petitioners up because of the condition they were in. . . . That the buildings were not flush with the alley; that some of them were set back a short distance resulting in dark recesses. It was back in one of these recesses that he saw the petitioners.”
In the course of the examination of the police judge he testified:
“There is no such charge as use of narcotics or being a narcotic addict, except that when it is used the user becomes drugged or intoxicated and they violate the ordinance against drunkenness. At the time they were first arrested they were charged with ‘narcotics in possession; vagrancy and dope addict,’ as shown by the record. They were sentenced only on the charge of vagrancy. Vagrancy includes prostitution. It is a violation of the ordinance to have possession of narcotic needles or equipment.”
During the trial in the district court Ruth Hannum, one of the petitioners, testified concerning the occasion of August 12, when they were picked up in the alley, as follows:
“She had not been using dope and never used it. Her sister, the other petitioner, had the dope equipment, consisting of a needle, little cooking utensil and the syringe, in her purse. She and her sister had been together at all times since leaving the city. Her sister was not on dope. She suffered from her head and had taken a little at times. She had been injured when a child. At the time she was arrested in May she was not working. She was living at S05 N. St. Francis avenue by herself. Her sister lived at the same place and was just keeping house. Her husband, who was separated from her, came to see her once in a while. He was paying her room rent and their people were helping to support them.”
The captain of the police department and head of the vice squad, testified concerning the occasion on August 12 and 13, as follows:
“He saw them at the time they were first brought into the station. At that time, from his observation, they needed a shot of morphine. He saw them the next morning after they were picked up on August 12. They looked at that time as if they had been drunk.
“He knew their general reputation over on Elm street and Maple, that they were hustling girls. At the time they were paroled they were paroled on the condition that they would not violate any of the state laws or the city ordinances. ...
“That at the time they were paroled they said they wanted to go to Oklahoma. They were then paroled for a year from the date of the first sentence. . . .
“According to the records-they had been convicted of narcotics in possession in Oklahoma. He had seen the conviction records, being the D. J. record from Washington. Witness had known them seven or eight months at the time he first investigated them before their first arrest. He had complaints from neighbors that they were hustling.- He saw them sitting in the window-on several occasions when the window would be open.”
During a recess period of the hearing in the district court, one of the petitioners was married to a party who was interested in obtaining a parole for petitioners. After this incident the court continued the hearing until a later hour in the day and directed respondents to investigate the record of the man to whom that petitioner had been married. When court resumed this party testified as follows:
“That he was engaged in the contracting business for himself. He was willing to have the sister of his bride come and live with him.”
The party was a painter by trade. The police records disclosed nothing against him. The trial court discharged the petitioners.
There was evidence petitioners were residents of the city of Wichita, and the trial court so found. There is much other evidence, but it is not deemed germane to the real issues here involved. The trial court also found there could not be a revocation of the paroles because there had not originally been a legal conviction or a legal parole. We need not discuss the legality of the conviction nor the legality of the length of sentence under the ordinance. Petitioners now admit the vagrancy ordinance of the city of Wichita is valid, so far as the length of punishment it authorizes is concerned. They also admit the validity of the original conviction is not in issue. The trial court, after hearing the conflicting evidence, found no offense was shown upon which a revocation of the paroles might be ordered.
This brings us squarely to the main issue in the case. This proceeding arose as a result of the termination of the paroles. Has the. district court authority to review the action of the police judge relative to his revocation of a parole?
This case was not taken to the district court by appeal from the order revoking the paroles. Petitioners contend the district court has general supervisory power over inferior courts in addition to its appellate jurisdiction. We are also reminded that in the city of Wichita, the police judge is an appointee of the district judges. (R. S. 1933 Supp., 13-628a, 13-628b). District judges are not district courts. The police judge is not an appointee of the district court. Furthermore, the power to appoint does not in itself include supervisory power over an appointee. Petitioners, however, insist R. S. 20-301 specifically provides such general supervisory power. It reads:
“There shall be in each comity organized for judicial purposes a district court, which shall be a court of record, and shall have general original jurisdiction of all matters, both civil and criminal (not otherwise provided by law), and jurisdiction in cases of appeal and error from all inferior courts and tribunals, and shall have a general supervision and control of all such inferior courts and tribunals, to prevent and correct errors and abuses.”
This proceeding in habeas corpus was conducted on the theory the district court was vested with general supervision and control over the police court. It seems it was the belief of petitioners and the trial court that the district court had full authority to consider the term of the sentence, the conditions upon which the paroles were granted, and that it possessed the authority to weigh the evidence on which the paroles were revoked, and had the right to finally determine whether the judgment of the police judge was properly exercised in revoking the paroles. In other words, it was apparently the position of the petitioners and the trial court that the district court was authorized in proceedings in habeas corpus to review the entire record and correct errors of judgment and abuse of discretion.
R. S. 12-1103 reads:
“The judge of the police court in cities of the first and second class shall have power, as hereinafter provided, to parole persons convicted of a violation of the ordinances of said city.”
The pertinent portion of R. S. 12-1104 reads:
“The judge of the court named in section 1 of this act, subject to the restrictions hereinafter provided, may, in his discretion, when satisfied that any person against whom a fine had been assessed or a jail sentence imposed by the court, or any person actually confined in the city jail under the judgment of said court, will, if permitted to go at large, not again violate the law or ordinance, parole such person and permit him to go at large, upon such conditions and under such restrictions as the judge granting the. parole shall see fit to impose.” (Italics inserted.)
Relative to conditions which may be imposed upon the granting of a parole by the district court, R. S. 62-2202 is the same as R. S. 12-1104. In commenting upon the provisions of R. S. 62-2202, this court in the case of State v. Harris, 116 Kan. 387, 226 Pac. 715, said:
“This furnishes sufficient authority for the court to require a bond or fix any other condition which is not immoral, illegal, or impossible of performance. In a similar case it was said:
“ 'The statute expressly provides that the court may grant the parole on such conditions and under such restrictions as it may see fit to impose. In its discretion it may attach any conditions to the parole that are not immoral, illegal or impossible of performance. . . . The petitioner was at liberty to accept the parole with the conditions attached or to decline it and serve out the sentence imposed, but when he accepted it he in effect agreed to all the conditions of the parole,’ etc. (In re Patterson, 94 Kan. 439, 442, 443, 146 Pac. 1009.)” (p. 389.)
In the case of Gray v. Graham, 128 Kan. 434, 278 Pac. 14, it was held:
“Ordinarily when one accepts the terms of a parole he is deemed to have agreed to the conditions named therein.” (Syl. ¶ 2.)
In that case it was contended the words “go at large” meant without constraint or confinement, but this court said:
“But as used in the statute, the words indicate the maximum liberty of movement which may be granted. This broad meaning is restricted by what follows: ‘to go at large, upon such conditions and under such restrictions as the court . . . shall see fit to impose.’ This seems to give the court almost unlimited authority to impose conditions and restrictions on the permission of one paroled to go at large.” (p. 436.)
In the same case it was further said:
“He was at liberty to accept or reject the conditions. (In re Patterson, 94 Kan. 439, 146 Pac. 1009.) He did accept them, and is not in good position now to complain of them.” (p. 436.)
In In re McClane, 129 Kan. 739, 284 Pac. 365, it was held:
“Where a defendant requests a parole after sentence and accepts the conditions thereof imposed by the trial court he cannot, after violation thereof, be heard to complain of its conditions or have the time counted on that of the original sentence.” (Syl. ¶ 3.)
The above statutes and decisions clearly indicate the power of the paroling authorities. The conditions attached to the parole, however, are not the controlling factor in this case, as will directly appear.
Complaint is also made in the instant case on the ground the police judge abused his discretion in not granting the prisoners a hearing before revoking the paroles. The contention, if it was reviewable, is without merit. R. S. 12-1104 specifically provides:
“Such judge may at any time, without notice to such person, terminate such parole by simply directing execution to issue on the judgment; or, in case the person shall have been actually confined in jail, the parole may be terminated by directing the chief or captain of police or any police officer to retake such person under the commitment already in his hands.”
In In re McClane, supra, this court held:
“When the conditions or restrictions of a parole, granted by the district court, have been violated and the court revokes the parole, the temporary suspension of the original sentence is ended and it immediately becomes effective and in operation, without any other action than the order of revocation.” (Syl. ¶ 4.)
In the case of In re Patterson, 94 Kan. 439, 146 Pac. 1009, this court said:
“The legislature might have required that notice be given to him and others, and also that there be a hearing as to the violation of the conditions of the parole before revoking it and remanding him to prison, but instead of that the legislature expressly provided that there might be a revocation without notice to him.” (p. 443.)
In the light of the foregoing decision's it follows there was nothing to review on the subject of notice or hearing relative to terminating the paroles. Furthermore, our legislature, wisely or unwisely, has seen fit to deny the right to review the action of a police judge with regard to refusing, granting or terminating paroles.. (R. S. 12-1107.) The same is true as to action of district courts or judges pertaining to paroles. (R. S. 62-2214.) The statute here involved, R. S. 12-1107, reads:
“The action of the judge in refusing, granting or terminating a parole shall not be subject to review by an appellate court.”
Petitioners counter with the contention this proceeding was not before the district court as an appellate court. They contend the district court, by virtue of R. S. 20-301, has general supervisory power over inferior courts in addition to its appellate jurisdiction. That statute was passed in 1868 and is general in -its nature. R. S. 12-1107, subsequently passed in 1909, is specific legislation and expressly denies the right of an appellate court to review the action of the police judge- in terminating paroles. In our view of the statute the term “appellate court” was not intended to be employed in a restricted sense as referring only to a court to which an appeal had actually been taken, but instead the term was employed as referring to courts generally which do have appellate jurisdiction. If the district court has power under the provisions of R. S. 20-301 to supervise the action of the police judge with regard to paroles, it follows that court must review the evidence. It must review the discretion exercised by the police judge in granting or refusing a parole. It must review the evidence and discretion of the police judge in revoking paroles. This review is specifically forbidden by an express statute. We are therefore obliged to hold the legislature intended to limit courts in their supervisory and appellate power in this regard. To hold otherwise renders the provisions of R. S. 12-1107 inoperative and meaningless.
Petitioners finally insist this court cannot, on appeal, review the action of the district court relative to granting or terminating paroles. (R. S. 62-2214.) The district court did not grant or terminate a parole. It discharged the prisoners. From that order respondents appealed. We are determining the question of the authority of the district court to review the action of the police judge relative to terminating paroles. We hold the district court did not have such -authority. In arriving at this result we have carefully examined decisions cited by petitioners. They are not contrary to, nor out of harmony with, the conclusion reached when considered in connection with the provisions of R. S. 12-1107 and the necessary construction placed thereon.
The order of the district court discharging the prisoners is a final order and as such is, of course, appealable. (R. S. 60-3302.) This court has appellate as well as original jurisdiction in habeas corpus proceedings. From what has been stated it follows the judgment of the district court must be reversed and petitioners returned to the custody of respondents. The time during which petitioners have been at liberty on parole is not to be credited on their sentence. (R. S. 12-1104.) It is so ordered.
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The opinion of the court was delivered by
Marshall, J.:
Thé action is one on account to recover a balance •of $764.60 claimed to be owing by the defendant to the plaintiffs for .automobile tires, sold by the plaintiffs to the defendant. The defendant set up a counterclaim to recover a balance of $646.35 •claimed to be due from the plaintiffs to the defendant as a rebate to be deducted from the purchase price of the tires sold by the plaintiffs to the defendant. The counterclaim of the defendant was allowed by the jury, and the verdict was returned in favor of the plaintiffs for the difference between the counterclaim and the amount claimed by the plaintiffs, $118.25. Judgment was rendered on the verdict, and the plaintiffs appeal.
1. The principal question argued by the plaintiffs concerns the sufficiency of the evidence to sustain the verdict of the jury allowing to the defendant his counterclaim. This question was presented to the trial court by a demurrer to the evidence of the defendant, by a request for an instruction directing the jury to return a verdict in favor of the plaintiffs for the amount sued for by them, and in the motion for a new trial by alleging that the verdict was contrary to the evidence. This necessitates a summarizing of the evidence as disclosed by the abstract.
There was evidence which tended to prove that F. J. Swartz and M. A.'Swartz, his wife, were partners as Swartz Lumber and.Sales Company, engaged in the wholesale business of selling Firestone automobile tires in the city of Wichita; that the defendant was engaged in the retail business of selling automobile tires in that city; that W. J. Weigle was the head salesman in the tire business of the company, working under Howard Swartz, son of F. J. Swartz; that Weigle, with W. C. Shanks, city salesman of the Firestone Tire and Rubber Company, went to the defendant at his place of business; that there W. J. Weigle entered into a contract with the defendant by which the latter was to sell Firestone tires and purchase them from the Swartz Lumber and Sales Company and if within a period of six months the defendant sold $10,000 worth of such tires he should have a rebate of six per cent on their purchase price; that the contract was not in writing; that the tires were delivered to the defendant; that the defendant made payments thereon; that more than. $10,000 worth of tires were sold during the six months; that Howard Swartz then went to the defendant and asked payment of the balance which was claimed to be due for the tires sold; that the defendant refused to pay, claiming the amount of rebate; and that this suit immediately followed. There was evidence which tended to prove that Weigle was directed by Howard Swartz not to sell tires to anyone until he had named the price to be paid therefor; and that Howard Swartz objected to selling tires to the defendant, but that F. J. Swartz had told Weigle to go to the defendant and see what could be done, and directed Weigle’-not to give the defendant any special prices or discounts.
The plaintiffs contend that Weigle was the special agent of the company with restricted authority, and that the defendant was bound to ascertain the extent of that authority. In response to that contention the defendant argues that Weigle was a salesman of the company and sold tires as such; that as such salesman he was clothed with apparent authority to name the price and terms of the sale; and that the company was bound by the terms named by .the salesman.' The goods were delivered under the contract made by Weigle with the defendant. The plaintiffs are seeking to recover the purchase price of the tires under the contract made by Weigle with the defendant as the plaintiffs claim that contract was made.. The evidence was conflicting concerning the terms of that contract.The plaintiffs claimed that there was no provision made for any rebate; the defendant claimed there was. The jury found in favor of the defendant. That settled the question of the terms of the contract.
“A principal is bound by the contracts of his agent made within the apparent scope of his authority notwithstanding limitations of the agent’s power, if the party dealing with the agent be ignorant of such limitations.” (Aultman v. Knoll, 71 Kan. 109, syl. ¶ 3, 79 Pac. 1074.)
(See, also, Babcock v. Deford, 14 Kan. 408; Banks Bros. v. Everest & Waggener, 35 Kan. 687, 12 Pac. 141; Ludlow v. Fribley, 67 Kan. 710, 74 Pac. 237; Townsend v. Railway Co., 88 Kan. 260, 263, 128 Pac. 389; 2 C. J. 597; and 1 Mechem on Agency, 2d ed., § 854.)
2. The court, in the instructions to the jury, submitted the question of ratification of a contract by the company. The plaintiffs claim there was no issue or evidence to justify the giving of such instructions. Ratification was not made an issue by the pleadings. The evidence only incidentally touched the question of ratification. There was no direct evidence on that question. The circumstances surrounding the transaction from beginning to end was the only evidence from which a ratification may have been inferred. The court is unable to perceive wherein the instructions concerning ratification were prejudicial to the plaintiffs, because the goods were sold under specified terms and were delivered under those terms. The plaintiffs are seeking to recover on what they claim were the terms of the contract. The defendant is seeking to recover on his understanding of the contract. The plaintiffs cannot recover except on the terms of the contract made with the agent by the defendant. To permit the plaintiffs to recover would be to allow the agent to practice a fraud on the defendant in making the contract for the sale of the tires and then permit the plaintiff to repudiate the fraud and recover notwithstanding that fraud.
In Advertising Co. v. Smalley, 101 Kan. 645, 649, 168 Pac. 677, this court said:
“The plaintiff cannot avoid the fraud of its agent, and enforce the contract. In other words, after a contract has been procured by the fraud of an agent, the principal cannot disregard the fraud, and enforce the contract. (Victor Sewing Machine Co. v. Rheinschild, 25 Kan. 534; Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637; Bank of Lakin v. National Bank, 57 Kan. 183, 45 Pac. 587; Aultman v. Knoll, 71 Kan. 109, 115, 79 Pac. 1074.)
“The principal is bound by the fraud of his agent, while acting within the scope of his employment, although the principal did not authorize nor know of his agent’s fraud. (2 C.J. 849; 31 Cyc. 1583; Note, 1 L. R.A. 144, 145.)” (See, also, Petroleum Co. v. Gas & Fuel Co., 112 Kan. 73, 209 Pac. 826; McCord-Brady Co. v. Hagen, 124 Kan. 319, 259 Pac. 785.)
If the agent violated his instructions in making the contract with the defendant, the company by delivering the tires under that contract and the plaintiffs by seeking to recover thereon have ratified and adopted it to such an extent that it cannot now be repudiated. The contract as made must be ratified and adopted, or repudiated. Both cannot be done. There was no prejudicial error in giving the instruction concerning ratification.
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was a habeas corpus action brought by George W. Roll against Anna B. Roll to obtain the custody of their minor child, John J. Roll. Judgment was for respondent. Petitioner appeals.
The facts are simple. George W. and Anna B. Roll formerly were man and wife and lived in the state of Washington. They were the parents of five children. On February 27, 1929, in a divorce action in Washington, brought by Anna, she was granted a divorce and alimony and the custody of the five minor children. John J. Roll, the child for possession of whom this case was brought, was one of these. At that time he was five years old.
A few months after the divorce was granted respondent moved to Morris county, Kansas, with all the children, and has lived there ever since.
On December 22, 1932, a hearing was had before the court that had granted the decree, on a motion to modify that decree. Respondent appeared at that hearing by her attorney. At that hearing the Washington court found that John J. Roll was suffering from asthma, and that it was necessary in order that his health might be improved that he have a change of climate. The order further modified the divorce decree by awarding the custody of John J. Roll to his father. Mrs. Roll refused to comply with this order.
On January 29, 1934, a hearing was had in the Washington court on a motion filed by Mrs. Roll wherein she sought to have the decree of the court last referred to modified so as to give her the custody of John. At that hearing the Washington court adhered to the order giving custody of John to his father. The court made an order stating it to be the opinion of the court that irrespective of whether or not the health of John demanded it, the custody of John should be transferred from the mother in Kansas to the father in Washington. Mrs. Roll refused to obey this order.
On July 25, 1934, this action was commenced in Morris county, Kansas, by the father against the mother to obtain custody of John under the decree of the Washington court of January 29, 1934.
On May 8, 1935, the case came on for hearing. The trial court found for the mother, the respondent, and refused the writ. This appeal followed.
The petition for the writ set up the facts about as they have been stated here. The petition alleged that the restraint of John J. Roll was illegal because the court in Washington had awarded his custody to the father, the petitioner here. The position of respondent in the trial court was that the court of Washington had no jurisdiction over the custody of John'J. Roll after he had left the state and that even though that court did have jurisdiction the circumstances of all parties had changed in the time that had elapsed between the making of the order of January 29,1934, when the last order awarding the custody of John to his father, was made, and May 28, 1935, when the order denying the writ was made by the trial court in this action. The case was tided in the court below on this theory. The court admitted all evidence offered that tended to bear on this subject.
The first argument of petitioner in this court is that the court in Washington had jurisdiction to modify the divorce decree as to the custody of the minor child even though the child lived in Kansas when this order was made. On account of the view we have taken of this case as to its final determination it will not be necessary for us to decide that question. The next question urged is that the decree of the Washington court is res judicata of all the questions in this case.
The controlling question in a case that concerns the custody of a child is the present welfare of the child. That can never be decided on the basis of what the circumstances and surroundings of the child were at some time in the past. The controlling question is, What is the situation at the present time? Laying aside for a moment the fact that the order of January 29, 1934, was made by a court of another state, suppose it had been made by a court in this state and no appeal taken. Under such circumstances an interested party could go into court and show that the situation of the parties had changed so that the welfare of the child demanded that its custody be changed. The parents are not the only parties interested when a home is broken up and the question of the custody of the children is involved. The state is always at hand to see that the welfare of the child is safeguarded. That question must always be examined from the standpoint of the present, not some former time. (See Wear v. Wear, 130 Kan. 205, 285 Pac. 606, and cases cited.)
The petitioner next argues that the court could only consider evidence as to the change in the condition and circumstances of the parties subsequent to the decree of the Washington court on January 29, 1934. The record discloses that this was all the court did consider on the question of whether the custody should be changed. It is true, however, that in order for the court to pass on the matter in an intelligent manner it should have the entire picture before it. In order to bring this about evidence of conditions and surrounding circumstances of the parties from the beginning had to be introduced. The court stated that the evidence of what happened prior to the order of January, 1934, would be disregarded.
Petitioner next argues that the evidence failed to show any change in the circumstances of the parties such as to warrant the court in denying the writ. The question of which one of two estranged parents should be awarded the custody of a child is one of the most perplexing with which courts have to deal. But little would be added to this opinion by setting out the evidence that was introduced at the trial. The court made findings of fact and conclusions of law in which all the issues of fact in the case were fully covered. In addition to this, the court made a statement as to the case. In this statement the court said: “I think there is some.evidence that the boy’s physical condition has changed since January of 1934, and there is very substantial evidence that his mother’s financial condition has changed, and her ability to care for him.”
Petitioner argues the case here as though the only question of fact to be considered by the trial court in this case is whether there had been any change in the boy’s health since the hearing before the Washington court. This position of petitioner is based on the fact that at the first hearing before the Washington court the original decree was modified because the court found that the health of the child made a change of climate necessary. The second order was not made entirely for that reason, however. At the hearing before the trial court in this case much evidence was introduced bearing on this point. It would have been error to have confined the inquiry to such narrow limits, however. There are so many factors that bear on the question of suitability of a parent for the custody of a child that the field of exploration is well-nigh limitless. There can be no question but that the financial condition of the mother is an important matter to be considered when weighing the question of whether a minor child should be continued in her custody. In this case there was substantial evidence that this had improved since the former hearing. On the question of the health of the child, it appears that at one time he suffered from asthma. There was ample evidence that he no longer suffered from that trouble. In fact, the evidence was overwhelming that at the time of the hearing in this case he was an ordinary, normal, healthy boy. We cannot agree with the contention of petitioner that there was no evidence of a change in the condition and circumstances of the parties subsequent to the hearing before the Washington court in January, 1934.
Petitioner next points out the finding of the court as follows: “The welfare and health of John J. Roll are best served by his remaining in the state of Kansas and in the custody of his mother.” The argument is that there was no evidence to support such a finding. What has already been said in this opinion disposes of that argument.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Burch, C. J.:
The action was one by Henry L. Doherty against the Kansas City Star Company and its manager, Roy A. Roberts, for damages for libel. Demurrers were sustained to certain causes of action contained in the petition, demurrers to other causes of action were overruled, and all parties appeal.
Plaintiff is president and chief managing officer of Cities Service Company, a corporation, whose principal office is at No. 60 Wall street, New York City. He is also a utility operator and engineer, and under the name Henry L. Doherty & Co. maintains a staff for the rendition of managerial, engineering, financial and other services to public utilities, including the Kansas City Gas Co., of Kansas City, Mo., the Wyandotte County Gas Co., of Kansas City, Kan., the Capital Gas & Electric Co., of Topeka, Kan., and other corporations supplying natural gas to cities and their inhabitants.
The Kansas. City Star Company is a corporation of the state of Missouri, engaged in the business of publishing two newspapers, the Kansas City Times, a morning paper, and the Kansas City Star, an evening paper, each having wide circulation in the states of Missouri, Kansas, and elsewhere. The papers are published at the principal office and place of business of the company in Kansas City, Mo. In conduct of its business, the company maintains offices, and employs agents and servants in the state of Kansas. Being engaged in interstate commerce, the company has neither applied for nor' received a grant of authority from the charter board of the state of Kansas to do business in this state.
The defendant, Roy A. Roberts, a resident of 'Kansas, is one of the chief managing officers of the Kansas City Star Company.
The Kansas City Star Company was served by delivery of sum, mons to a news correspondent in the city of Topeka, Kan.
The petition contained six causes of action which, for brevity, will be referred to as counts. The Star company demurred to counts 1, 2, 3 and 4. The demurrer to count 1 was based on the statute of limitations and other grounds. The demurrer to count 2 was based on the statute of limitations alone. The demurrer to count 3 was based on the statute of limitations and other grounds. The demurrer to count 4 was based on grounds other than the statute of limitations.
Roberts demurred to counts 1, 3 and 4, on the ground those counts did not state facts sufficient to constitute causes of action. Because of absence from the state, he was not in position to urge the statute of limitations. The court sustained the demurrers to counts 1 and 3, and overruled the demurrer to count 4.
As indicated, the Star company demurred to counts 1, 2 and 3, on the ground action was barred by the statute of limitations. Action was barred by the statute of limitations if the Star company, a foreign corporation engaged in interstate commerce, doing business in this state and subject to service of process here, was privileged to plead the statute.
Previous to 1905 the statute read as follows:-
“If when a cause of action accrues against a person he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall- not begin to run until he comes into the state, or while he is so absconded or concealed; and if after the cause of action accrues he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.”
In December, 1903, this court rendered its decision in the case of Williams v. Railway Co., 68 Kan. 17, 74 Pac. 600, the syllabus of which reads:
“A foreign corporation is ‘out of the state,’ within the meaning of section 21 of the code (Gen. Stat. 1901, § 4449), and for that reason cannot avail itself of the statute of limitations of this state.”
The decision was based solely on implications from the metaphysical conception of a corporation, which were pressed so far they were incongruous with the realities of this world of practical affairs. The result was, that at the next ensuing session of the legislature, which assembled in 1905, the statute was amended by the addition of a proviso which reads:
“Provided, This act shall not apply to any foreign corporation authorized to do business in the state upon which service of process can be had within the state.”
The original statute plus the amendment appears as R. S. 60-309.
A person has a physical existence and may go from place to place to accomplish his purposes and satisfy his desires. When the statute came into existence in covered-wagon days, it was conceived the running of the statute ought to be suspended while one against whom a cause of action arose or existed was out of the state, and although the statute was one of repose, it was so framed that it applied even although a form of personal service, by leaving copy of summons at usual place of residence, might be made.
A corporation was merely a mental concept. Because, however, a corporation could do most of the things a person could do, it was necessary to attribute to a corporation the fact of existence. Having existence, a place in space in which to exist was logically necessary. Therefore, the abstraction was assigned a hypothetical domicile. That was as far as reasoning of the type employed could go toward the 'concrete, and capacity of a corporation to be anywhere except in the state of domicile was denied.
The railway company involved in the Williams case was a Missouri corporation. It built a line of street railway from Missouri into Kansas, and proceeded to engage in the carriage of passengers in interstate commerce. The railway was a unit. Operation of the railway in Missouri and in Kansas was unitary, but there were offices, agents, and carbarns in Kansas. The corporation could operate streetcars .here, could be guilty of negligence in operation of its cars here, could cause injury to a passenger here, and could be sued for damages here whenever an injured person chose to do so. The corporation, however, could not cross the mathematical line between Kansas and Missouri, and be in Kansas. Therefore, so far as the statute of limitations was concerned, the corporation was out of the state of Kansas for seven years after an accident to a passenger occurred in Kansas, and before action for damages was commenced. That was plainly too theoretical, and the legislature undertook to rationalize the statute of limitations as applicable to actions against foreign corporations doing business here.
There were corporations .and corporations which existed by virtue of the laws of other states. Some of them could not do business here at all and would be subject to immediate ouster if they attempted to do so. Some of them could obtain permission to do business here. Some of them could do business here without any permission and without liability to ouster. The effect of the statute was, that any corporation authorized to do business here, and upon which process could be served here, could plead the statute of limitations, despite the fiction of being out of the state.
The specific words of the statute were, “authorized to do business” here.
“To authorize,” in the active sense, is to clothe with authority, and in this sense implies a,n affirmative grant of power. The person so clothed is authorized. The word “authorized,” however, need not have any implication of a grantor and a grantee of power. The word also indicates merely possessed of authority; that is, possessed of legal or rightful power, the synonym of which is “competency.” The court is authorized to say this on the authority of Webster’s New International Dictionary, second edition.
The legislature of 1905 was perfectly familiar with use of the word “authorized” in the sense just indicated. In another amendment of the code of civil procedure, taking effect at the same time as the amendment relating to the statute of limitations, the legislature so used the word:
“Whenever a cause of action has accrued under or by virtue of the laws of any other state or territory, such cause of action may be sued upon in any of the courts of this state, by the person or persons who are authorized to bring and maintain an action thereon in the state or territory where the same arose, provided one or more of the parties entitled to the proceeds of said action are at the time of beginning said action residents of the state of Kansas.” (Laws 1905, ch. 325, § 1.)
It would be idle to contend the legislature here meant a person who had been duly commissioned to sue. The statute meant simply that a person who could sue in his own state can sue here.
The statute was remedial, and is to be liberally construed. There is no indication the legislature intended to classify corporations, equal in right to do business in this state, and to deny to some of them a privilege extended to others. If that were the meaning, the statute failed of its purpose to correct the undesirable result of the decision in the Williams case, which occasioned enactment of the statute. In the Williams case, the facts were found with painstaking completeness. The only authority granted to the railway company in the state of Kansas was municipal authority to lay tracks in the streets of Kansas City, Argentine and Rosedale. If a narrow view of the statute were to prevail, the railway company would still be prohibited from pleading the statute of limitations against actions on seven- and ten-year-old damage claims, because of the same old chimera, it was out of the state.
The Star company needed no grant of authority from the charter board to come into this state and prosecute the various activities which comprised and were incidental to its interstate commerce business. It is rightfully conducting its business here and so is authorized, in the sense of the statute, to -do business here.
The result of the foregoing is, the Star company’s demurrers to counts 1 and 3 were properly sustained, and the demurrer to count 2 should have been sustained.
Count 4 was based on a cartoon, published in one of the Star company’s newspapers. The ground of the Star company’s demurrer to that count was, that the cartoon was not libelous. It is not necessary to perpetuate the cartoon in the Kansas reports. The court regards the picture as designed to bring Doherty into public hatred, contempt and ridicule, and the Star company’s demurrer to the fourth count of the petition was properly overruled.
It follows from what has just been said that Roberts’ demurrer to the fourth count of the petition was properly overruled.
The third count of the petition was also based on a cartoon which was clearly libelous, and Roberts’ demurrer to that count should have been overruled.
The court has carefully considered the article, published in the Kansas City Star, forming the basis of the first count of the petition. ’ The first paragraph of the article had no reference to Doherty. The second paragraph of the article did not warrant the interpretation placed upon it by the innuendo. No other meaning is open to consideration, and the court holds Roberts’ demurrer to the first count of the petition was properly sustained.
The judgment of the district court is affirmed in part, and is reversed in part, as indicated in the foregoing opinion.
Harvey, J., dissents from the first paragraph of the syllabus and corresponding portion of the opinion.
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by the defendant from a judgment of $13,875 rendered against him on a verdict in favor of the plaintiffs in the district court of Meade county for damages oc casionecl by the fraud of the defendant in the alteration of two mortgages given by the plaintiffs- on Kiowa county lands, whereby they lost their Kiowa county lands and the crop of wheat thereon for-the year of 1925 when they were evicted therefrom. The appellant makes twelve assignments of error, and under the same number of legal headings discusses each of these several general topics, with numerous subdivisions and particular facts and instances.
The first error considered in the brief of appellant is in overruling the motion for new trial because the verdict was in whole or in part contrary to the evidence. The plaintiffs are husband and wife, and were living on their 120-acre farm in Kiowa county in the summer of 1918, and owning another tract a mile north containing 160 acres, with a mortgage on both of them for $4,200. The defendant lived in Meade county and sold these plaintiffs a half section of land there near the town of Fowler for $17,000. They entered into an agreement whereby $10,000 of this purchase price was to be given to defendant in the form of a mortgage on the farm purchased and $7,000 in the form of a second mortgage on the 120-acre farm in Kiowa county, as the plaintiffs maintain, while the defendant maintains it was to be on both tracts in Kiowa county. Two different written contracts have been introduced in evidence in support of these two theories, one of them describing only one tract and the other describing both. Both are apparently executed by both plaintiffs and the defendant. The parties disown the signature to the respective contracts against their contentions. The defendant was designated to prepare the contract and the mortgages. He says he did prepare them just as they are, except the contract which describes the 120-acre farm as the only one in Kiowa county to be included in the $7,000 mortgage. Plaintiffs say when they signed the $7,000 mortgage, about ten days after signing the contract, it did not contain the description of the 160-acre farm but only the 120-acre one.
On July 25, 1921, the plaintiffs were indebted to the defendant in the sum of $421.74, and agreed to give him a mortgage on the 160-acre farm to secure that amount, and did sign such a mortgage, and it now appears that both tracts are included in both of these mortgages. The plaintiffs allege and maintain that the additional tract was inserted after the mortgages were executed by them, and this alleged fraud by way of forgery in both of these mortgages is the basis of their claim for damages.
The evidence shows that thirteen months after the execution of the $7,000 mortgage defendant negotiated for the purchase of both farms in Kiowa county, agreeing to pay $60 per acre for the 160-acre tract and $80 per acre for the home place of 120 acres, which would pay off all plaintiff’s indebtedness and leave them the Meade county farm clear, they having in the meantime reduced the $4,200 first mortgage. This arrangement was kept alive by frequent conferences on the subject, as shown by the evidence, and defendant postponing the closing of the transaction by relieving plaintiffs of the payment of interest on all mortgages until he shaped his affairs so as to close the deal. In the meantime defendant had assigned all three of these mortgages to his brother, T. R. Watts, a nonresident of Kansas, who instituted foreclosure proceedings on the two Kiowa county mortgages in February, 1923, they having been promptly recorded after execution. Plaintiffs employed an attorney to defend, who filed a motion, which was overruled, and made no further defense because he could not hear from plaintiff (that is, the husband, to whom he had written), and the evidence now shows he had been very ill and unconscious for quite a while about that time. Plaintiffs and their attorney say they did not confer about the description of the land, and plaintiffs did not know of the alteration of the mortgages when they talked with their attorney,- and had no reason to suspect it or inquire about it,, because defendant had agreed to purchase both farms in Kiowa county, and they believed him and relied upon his promise.
Appellant dwells at length upon the right and duty of this court in reviewing these proceedings to examine for itself the signatures to the various instruments, some admitted to be genuine and others disowned, the typewriting of the several instruments, including the description of the land therein and the arrangement thereof in the contracts and mortgages, the originals as well as photostat-ic copies, all of which have been filed in this court with the abstracts and briefs. All the authorities cited have been carefully reviewed, and we fail to gather from them an approval of the proposed course of this court passing upon the genuine character of signatures by comparison or as experts to detect the difference in signatures and the typewriters used for different instruments, where the instruments thus submitted for inspection were not all the evidence on the subject submitted to the jury. The abstract and briefs give pages of oral testimony introduced on this subject for the consideration of the court and jury. One of the cases cited was where in a contested election the case was tried to the court without a jury and the evidence was limited to the ballots themselves and documentary evidence, which is very different from this case. Citations are not needed to show that such matters supported by oral evidence and expert witnesses are questions for the jury and not the reviewing court, except to determine if there was sufficient evidence on this subject to submit the matter to the jury and later enough to sustain the verdict. To that extent we approve the action of the trial court.
The next error treated in the appellant’s brief is overruling the demurrer to plaintiffs’ evidence. Three special grounds under this heading are urged: First, that the evidence does not show that the injury was the proximate result of the fraud alleged; second, that the promises made by the defendant were not actionable fraud and were too remote; and, third, that before plaintiffs could recover they must show that they acted as reasonably prudent persons would have acted under the circumstances. Appellant cites Bailey v. Oatis, 85 Kan. 339, 116 Pac. 830, and decisions from other states to show that the injury complained of must be the proximate and natural result of the fraud alleged. In other words, if it had not been for the alleged forgery by inserting the description of the 160-acre farm in the $7,000 mortgage the plaintiffs would not have lost their Kiowa county farms. They might have lost the home place properly covered by the mortgage and might have had a personal judgment rendered against them for the deficiency, if any, but with 160 acres practically clear a businesslike arrangement with it as security could easily have prevented any loss. The facts in this case are as different from those in the Bailey case above cited as day and night. There Oatis lost nothing by the misrepresentations. He owed $1,500 and interest for several years. Through false statements he rented the farm, paid rent, and later purchased it for $1,500 on statements that were false, as the jury found. The court reversed the case because there was no loss sustained, and of course none that could be traced to the false statements. Here the plaintiffs have lost their two Kiowa county farms, admitted by the offer of defendant to be worth $19,200. They have also lost the Meade county farm. The defendant, on the other hand, in his own right or in the name of his brother, to whom he assigned the mortgages, has all three farms. There appears to be not only a direct loss here but a remarkable gain by the defendant without the investment of a dollar — just by making the mortgage cover and encumber all the property owned by the plaintiff.
In the case of Stinson v. Aultman, 54 Kan. 537, 38 Pac. 788, the fraud invoked to stop the bar of the statute of limitations was that of a third party whose misconduct and fraud in no way lessened the original rights of the parties. They remained the same. Here the alleged fraud is not by any third party, and the loss is clearly shown to be the difference between the offered price and the encumbrance, or the loss of the 160 less the $421.74 mortgage intended to be put on it alone.
The second point urged under this heading is that the promises made by the defendant are not actionable and are too remote. They are closely connected with the original fraud, and are what is frequently referred to as a part of a continuing fraud by means of deceit. The record shows that upon the first meeting of these people with the defendant, as a part of their plan in making the purchase of the Meade county land, they told defendant they intended to sell their Kiowa county land so as to pay out on the proposed purchase. That was before any contract or mortgage had been written, and the evidence, not here recited, shows that defendant came to see plaintiffs the next day after he heard they were going to sell, and promised to purchase it himself, and urged and insisted that they not sell or offer it to any other person. This promise to purchase later, shown by his conduct to have been made without any intention of fulfilling it, is but a part of the claim of deceit and false and fraudulent promises to lull the plaintiffs into complacency and to keep them from investigating records, and very apparently to keep the knowledge of the false record from becoming known, as it would if a sale to others were made. The evidence shows that the defendant frequently urged plaintiffs not to sell to others, and renewed his promise to buy, and by way of inducement for matters to stand as they were, told them there would be no interest on any of the mortgages while they waited for him to close the deal and take over the Kiowa county land. In the meantime the brother was commencing foreclosure of the mortgages, and the dwelling house on the Meade county farm burned, and defendant made a new proposition to the sick plaintiff and his wife during the term of court in Kiowa county when the foreclosure case was tried that if the plaintiffs would give him the $2,500 insurance on the house that was burned and give back to him the Meade county land he would release the two mortgages on the Kiowa county farms and plaintiffs would then have them free of encumbrance except the balance of $2,100, to which the plaintiffs had in the meantime reduced the first mortgage. To this they agreed, and he promised to dismiss the foreclosure suit, and urged them not to telephone Judge Day that plaintiff was sick and unable to attend court, for he would take care of that by having the case dismissed.
Another item in the chain should be mentioned. Plaintiffs received about $2,000 from the insurance company for the loss of their furniture and clothing when the Meade county house was burned. Defendant urged the wife of the sick plaintiff to use $1,500 of this money to further reduce the first mortgage so she could have the Kiowa county land clear. As she says, he told her the day she gave him the $2,500 and paid the $1,500 to reduce the first mortgage to $615: “We all know Mr. Converse will never get well; we are certain of that. I will release all holds I got in the Kiowa land if you will give me the $2,500; you take your money and clear up that loan up there and- have your home clear.” Are none of these promises actionable fraud? None of the cases cited by the appellant to show that they are not actionable are based on a state of facts like these, and for the purpose of determining the error of the court in ruling on the demurrer they are to be regarded as facts.
The third point under this heading is that the evidence of the plaintiffs does not show that they acted as reasonably prudent persons would under the circumstances. In this connection it is contended that the knowledge of their attorney in the foreclosure case was their knowledge. It is nowhere shown that he had any knowledge of what land the mortgages were intended to cover. The plaintiffs up to this time had no actual knowledge of the fraud. An attorney must be shown to have an actual knowledge of facts and fraud before such knowledge can be imputed to the clients. Did the plaintiffs under all these circumstances act as reasonably prudent persons would? They acted just like nearly all persons do who are subjected to the alleged sharp practices and intrigues of those seeking to profit by others’ confidence in them and their promises. We enact such measures as the blue-sky laws, found necessary to protect an alarmingly large proportion of our people. It doesn’t come with very good grace from the one whom the evidence tends to show had changed sacred instruments before placing them of record and followed that up with profound secrecy of such change and an incessant chain of promises which were evidently intended to take plaintiffs off their guard and lull them into thoughts of security, that reasonably prudent people should not have believed or trusted him.
“The trend of the decisions of the courts of this and other states is towards the just doctrine, that where a contract is induced by false representations as to material existent facts, which are made with the intent to deceive, and upon which the plaintiff relied, it is no defense to an action for rescission or for damages arising out of the deceit, that the party to whom the representations were made might, with due diligence, have discovered their falsity, and that he made no searching inquiry into facts. ‘It matters not,’ it has well been declared, ‘that a person misled may be said in some loose sense to have been negligent. . . . For it is not just that a man who has deceived another should be permitted to say to him, “You ought not to have believed or trusted me,” or “You were yourself guilty of negligence.””’ (Speed v. Hollingsworth, 54 Kan. 436, 440, 38 Pac. 496.)
Under two other assignments of error appellant contends that the court erred in not sustaining the demurrer to the evidence on account of the action being barred by the statute of limitations and because the action is res judicata. Appellant relies upon the decision in the case of Black v. Black, 64 Kan. 689, 68 Pac. 662, and several subsequent cases to start the running of the statute of limitations from the dates of the recording of the two mortgages by reason of constructive notice, but does not in that connection consider the universal exception to that well-established rule, namely, conduct by way of concealment and otherwise which tends to divert the attention of the plaintiffs and throw them off their guard. The very positive rule announced in the Black case is stated in connection with the following expression on page 703:
“No concealment by the mother of the exact nature of the accounts rendered is shown or, from their very nature, can be shown.”
In the case of Hinderliter v. Bell, 114 Kan. 857, 221 Pac. 252, cited by appellant, the following language is found in the syllabus:
“And that there was no fraud or attempt tp prevent her from availing herself of the notice which the instruments and the record imparted.”
Also, the following in the opinion:
“Concealment of the transfer after it was made is not charged, nor was there any attempt to throw her off her guard or divert her attention from the contents of the papers she signed nor is it averred that there was any fraud by the defendants to prevent her from ascertaining or availing herself of the contents of the papers or the record of the transfer.” (p. 862.)
All through these opinions applying and approving constructive notice the modification is observed to the effect that if the evidence shows that the conduct of the defendant was such as to throw plaintiffs off their guard, or to lull them into a sense of security so as to lead them to omit or forego the examination of the records, then the statute begins to run from the date of the actual knowledge of the fraud. Appellant considers this subject fully in connection with the giving of the instructions and recognizes the exception to the constructive-notice general rule, but insists that the facts here do not justify the modification of the rule as to either mortgage in this case. Of course, if there was no fraud by way of alteration there could be no further fraud by way of concealment. There would be nothing to conceal. That is the consistent theory of the defendant, but we are now considering the demurrer to the evidence, which tends to show alteration, at least enough to go to the jury. Now if there was an actual alteration by the defendant the fraud doesn’t stop there. There was a daily and continuous fraud by way of concealment of that original wrong. The offer to purchase is but a link in the natural chain of events likely to occur if the first transaction was fraudulent. In McMullen v. Loan Association, 64 Kan. 298, 67 Pac. 892, it was stated with approval that concealed fraud was an implied exception to the statute of limitations, equally applicable to suits at law as well as in equity.
“The rule is no broader than its basis, and if for any reason no obligation exists to consult the record, or if the interested person be circumvented from taking advantage of his opportunity, the rule does not obtain.” (Hutto v. Knowlton, 82 Kan. 445, 448, 108 Pac. 825.)
In the recent case of Murphy v. Pusch, 124 Kan. 323, 259 Pac. 684, the deeds were on record nine years before the action was commenced, and the court held the grantor and his heirs were not barred. The evidence shows that plaintiffs acquired actual knowledge of the alleged alterations of the mortgages in April, 1924, and not before, and this action was commenced July 29, 1925. Because of the concealment from the very day of recording the mortgages and the conduct of the defendant, calculated to circumvent the plaintiffs and throw them off their guard, the statute did not commence to run until the time of actual knowledge or discovery of the fraud, and the action was therefore not barred.
The further ground of error in overruling the demurrer to the evidence is because the matters and issues herein involved have, prior to the commencement of this action, been tried and adjudicated in the foreclosure case in Kiowa county maintained by the brother of the defendant. In this contention reference is made to the petition filed by the plaintiffs in that foreclosure case in April, 1924, under R. S. 60-3011 to open, vacate and set aside the judgment of foreclosure theretofore rendered in that action because of unavoidable casualty and misfortune preventing them from defending. The petition sets out sickness and other reasons so preventing them, and prays for the vacation of the judgment and that they be permitted to answer and make their defense. The court, denied this prayer and sustained the judgment. The petition set forth the defense they offered to make to the judgment, reciting the same averments as to fraud as are alleged in the petition in the case at bar. The only adjudication in that case was the denial of the prayer of plaintiffs to vacate the judgment and to be permitted to defend. There could be no hearing'or decision on the merits of the proposed defense until the judgment was set aside, and this the court upon the showing declined to do. This point was recently decided by this court in the case of Toner v. Conqueror Trust Co., 126 Kan. 554, 268 Pac. 810, where it is said in the second paragraph of the syllabus:
“An attempt to vacate a judgment by petition under R. S. 60-3011 is not an inconsistent remedy so as to bar a recovery upon the cause of action set up in such petition when stripped of such allegations as were made to have judgment vacated.”
See cases therein cited.
Appellant alleges error in giving and refusing instructions, objecting to the one defining the measure of damages, and arguing that the alteration of the mortgages would not invalidate the notes, and that defendant should have a deduction for the amount of the notes with interest, citing National Bank v. Hoover, 114 Kan. 394, 218 Pac. 1003, where in a foreclosure case the mortgage was held invalid and the court allowed judgment on the.note according to the prayer of the petition. This is a suit for damages and not a foreclosure action; neither is there any request or demand for set-off or counterclaim in any of the pleadings. The court instructed the jury that the measure of damages was the reasonable value of the Kiowa county land and the 1925 wheat crop. Appellant urges that as the redemption period ended in May, 1925, plaintiffs should not have sown a wheat crop on the land in the fall of 1924. This argument would be forceful if we were not considering a case based entirely upon fraud.
Serious objection is made to instruction as to the running of the statute of limitations and the failure to give those requested by the defendant. The court, after defining and instructing as to constructive notice, illustrated the rule by applying it to the small mortgage herein involved, but did not illustrate it as to the $7,000, as requested. The court set out the correct rule for determining whether or not an action is barred by constructive notice and it was not necessary to apply that rule to the facts in all cases under consideration.
The various errors as to the introduction of evidence have been examined and considered and we find no reversible error in that connection.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action in ejectment. The trial court sustained a demurrer to the petition. Plaintiff has appealed.
In his petition plaintiff alleged that he is the owner and entitled to the immediate possession of certain described real property, and that his ownership is predicated on a certain tax deed, a copy of which was attached to the petition and made a part thereof. The question raised by the demurrer is the validity of the tax deed on its face. The tax deed in question is not in the regular form set out in R. S. 79-2501, but is a “compromise payment form” such as R. S. 1933 Supp. 79-2411 purports to authorize. This statute, among other things, provides that no deed shall be issued upon any certificate authorized to be issued and assigned by the statute until “six months after such assignment has been made.” The deed shows on its face that the certificate was issued and assigned the same day the tax deed was issued. Hence, the deed is void. (James v. Manning, 79 Kan. 830, 101 Pac. 628.)
Further, it is argued in support of the ruling of the trial court that under chapter 120 of the Laws of 1933 Special Session, the holder of the record title to the land, his heirs, executors, administrators or assigns, had until January 1, 1935, in which to pay the delinquent taxes without being required to pay any of the penalties, cost, expenses or interest now charged, or chargeable, against the land. The deed in question shows on its face that it was issued not only for taxes which had been charged against the land, but it included $279.35 interest, fees and penalties. When the holder of property is given a fixed time by statute in which to pay his taxes without interest, penalties and other charges, a tax deed issued prior to that date, and which includes those items, is void on its face. Indeed, the owner has even all of the last day fixed by statute in which to pay. (Brown v. Going, 96 Kan. 266, 150 Pac. 554.)
Appellant points out that chapter 120 of the Laws of 1933 Special Session, does not say anything about when tax deeds shall issue. R. S. 79-2501 provided that a tax deed might issue after three years from the date on which the property was sold for taxes. By section 7 of chapter 312 of the Laws of 1933, that time was made four years. The deed shows the land was sold September 2, 1930, for the taxes in 1929, and that there was properly endorsed the taxes for 1930 and 1931. The deed was dated September 4,1934. Appellant argues that since the deed was issued more than four years after the sale of the property for taxes the deed should not be adjudged invalid even though the owner of the real property had until January 1, 1935, in which to pay the taxes without penalties, interest and other charges. We cannot give our consent to this view. Both statutes must be given effect. To do so the deed must be issued more than four years after the sale of the property for taxes and after the owner’s special time to redeem without payment of interest, penalties or other charges had expired.
We find no error in the record. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This action is one to recover on a policy insuring wheat against loss or damage caused by hail. Judgment was rendered in favor of the plaintiffs, and the defendant appeals.
The cause was submitted to a jury, which answered special questions, but under an agreement of the parties a general verdict was not returned. The answers to the special questions were as follows:
“1. Did the-plaintiffs send to the defendant their sworn proof of loss within sixty days from the date of the loss, as required by paragraph No. 20 of the stipulations and conditions of said policy? A. No.
“2. Was it the custom of the defendant company to require proof of loss as suggested by paragraph 20 of the policy before making adjustments of loss? A. No.
“3. Did the witness Goddard at the. conversation at the combine agree to return and inform plaintiff Byler, in event the adjustment with the Home Insurance Company was not satisfactory with adjuster Aldrich asi a basis for settlement of the hail loss with defendant company? A. Yes.
“4. Did the defendant company request the witness Goddard, about the month of October or November, 1926, to attempt to make a settlement with the plaintiffs of plaintiffs’ claim for loss sued on in this case? A. Yes.
“5. If you answer question No. 4 in the affirmative, did the witness Goddard enter into negotiations with plaintiffs for an adjustment or compromise of plaintiffs’ said claim? A. Yes.
“6. What was the average yield per acre of wheat harvested by plaintiffs from their 720 acres? A. 22Va bu.
“7. What was the fair average yield per acre of wheat in 1926, in the immediate neighborhood of plaintiffs’ said crop? A. On sod ground 30 bu. On old ground 18 bu.
“8. What percentage, if any, of the plaintiffs’ wheat crop was destroyed by the hailstorm of June 17, 1926? A. 1614 per cent on SEli of section 32 and S!4 of section 33; 17 per cent on 240 acres in section 34.”
1. One complaint of the defendant is that “the evidence does not support the allegation of the petition that the adjuster G. W. Aldrich orally agreed to allow to appellee the percentage of loss which they claimed.” The petition, among other things, alleged:
“That shortly after such hail loss, one G. W. Aldrich, a duly authorized adjuster of said defendant company, inspected the fields of wheat above described and orally agreed to allow plaintiffs the per cent of loss hereinbefore claimed.”
There was evidence which tended to prove that G. W. Aldrich was the adjuster of the defendant; that he and R. J. Goddard, the local agent of the defendant, after being notified concerning the loss, went to tlie wheat field of the plaintiffs; that Aldrich, after arriving at the field, sent Goddard into the field to interview one of the plaintiffs who was then working in the field, to talk with him concerning the loss and its adjustment; that the Home Insurance Company had issued a policy to the plaintiffs insuring the plaintiffs against loss or damage to the wheat caused by hail; that the Homé Insurance Company had effected an adjustment of the loss with the plaintiffs; that when Goddard interviewed the plaintiff in the field he was informed concerning the adjustment of the loss by the Home Insurance Company, and stated that he would inform Aldrich, and if the adjustment were not satisfactory the 'plaintiffs would be informed of that matter; that Aldrich desired to see the papers on which the adjustment with the Home Insurance Company had been made, but he did not succeed in seeing those papers; that afterward negotiations were had between the plaintiffs and the defendant looking to an adjustment of the loss; but that no adjustment was ever effected. That evidence sufficiently supported the allegation of the petition so that the defendant’s claim of error thereunder cannot be sustained.
2. The defendant argues that no proof of loss was ever furnished to the defendant by the plaintiffs as was required by the policy. The policy stipulated that the defendant should not be liable thereunder unless proof of loss should be made within sixty days after the loss was sustained. Such proof of loss was not made. The plaintiffs contend that it was waived by the negotiations of the defendant for an adjustment of the loss without proof having been first made. That contention must be sustained.
In Clark v. Insurance Co., 105 Kan. 728, 185 Pac. 1056, this court declared the law to be that—
“Where a holder of fire insurance policies suffers a loss and notified the insurance company thereof, and the company’s adjuster is sent to investigate the loss, and he with assistance of the assured makes an estimate and inventory of the property, and he and another agent of the company make repeated offers to settle with the assured on the basis of such inventory, which offers are declined by the assured, and the company demands an arbitration of the amount of the loss, the acts of the company and its agents are a waiver of more formal proofs of loss; but the assured is not bound by the amount of the loss as calculated by the adjuster; and in an action to recover on her policies, the assured is entitled to judgment for the full amount of her loss, regardless of the inventory, when the defendant knew that the plaintiff had denied its fairness from the time it was made.” (Syl. ¶ 1.)
The author in 7 Cooley’s Briefs on Insurance, 6004, says:
“A distinct recognition of liability by the company, made under such circumstances as reasonably to show that it is satisfied as to the loss, will amount to a waiver of formal notice and proofs, or of defects therein.”
The company by its conduct waived formal proof of loss. ■
The judgment is affirmed.
Hutchison, J., not sitting.
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The opinion of the court was delivered by
Dawson, J.:
The defendant, John Demain, was convicted of grand larceny for the theft of a load of wheat, and appeals.
It appears that two men, Snyder and Stegman, landlord and tenant, had about 9,000 bushels of wheat in a bin on a farm in Ford county at some distance northwest of Offerle, Edwards county. Defendant lived about two and one-half miles from this wheat bin. Stegman had been hauling wheat from that bin, and in cleaning up spilled grain he had gathered up some cobs and a bit of wood and threw them into the bin. On the night of January 12, 1928, an old Ford truck belonging to defendant was found- stalled in a ditch at the roadside with a 55-bushel load of wheat in it, about a mile from the Snyder-Stegman wheat bin. • About a load of wheat was missing from the bin, and in the load of wheat on defendant’s truck were some of the cobs and bits of wood which Stegman had thrown into the wheat when, he had tidied up around the bin. It was a cold night and the radiator. of defendant’s car had been drained. The same night defendant appeared in Offerle and told a deputy sheriff of Ford county he had seen the truck at the side of the road on his way home from town that night but did not recognize it as his own, and when he got home he discovered his truck was missing and went back to the truck by the roadside and discovered it was his, and as the night was cold he had drained the radiator and came back to town to report. This deputy sheriff and another went to the truck and discovered from certain indications that the radiator must have been drained for a much longer period than the short interval between the time when defendant said he drained it and the time he told the deputy sheriff about it. Several deputy sheriffs of Ford and Edwards counties, who concerned themselves with the larceny of the wheat on the night it happened or during the next two days, intimated rather pointedly to defendant that he had stolen the wheat, and urged him to plead guilty, assuring him it would be better for him, and that' to stand trial would cost him a lot of money and he would be found guilty anyway, and one of them said he would recommend a parole. Thus induced, defendant admitted the theft of the wheat.
At the trial the jury retired while the trial court heard the evidence concerning the confession and the circumstances under which it was given. It concluded that the confession was voluntarily made. The jury were then recalled and the evidence concerning defendant’s confession was submitted for their consideration.
A verdict of guilty followed, and defendant assigns error in admitting the evidence concerning the confession, and in the instructions pertaining to that confession given and refused. He argues that the state did not prove that the confession was voluntarily made. The pertinent testimony reads:
Oliphant, deputy sheriff of Edwards county, testifying:
“I said, ‘John, if you are guilty of the crime, for goodness sake confess it and get it over with before it goes to trial. If it goes to trial it will cost you a lot of money and you will undoubtedly be worse off. If you did it, why for goodness sake confess it.’
“Cross-examination: . . .
“Q. You were accusing him of the crime? A. I told him it looks as though he done it.
“Q. That was the night before, was it? A. That was really Friday morning about three o’clock in the morning. . . .
“. . . I says: ‘Probably Mr. Stegman, if you will take the wheat back, put it back where it belongs, and ask — apologize to Mr. Stegman, Mr. Stegman will probably drop it. . . .’
“Q. What did he say then? ' A. He says: ‘Do you suppose he would do that’? ...
“. . . I will talk to Mr. Stegman and he will probably not get out a warrant for you. . . .
“Q. He didn’t confess it until after you had told him? A. I didn’t say he done it — wanted to know—
“Q. Until you told him it would be quickest way out of the — cheapest way out? A. Yes, sir. ...
“Q. You told him also it would cost several — couple thousand dollars, didn’t you? A. I don’t know as I told him, I didn’t know, couldn’t tell how much it would cost. I said probably cost you a thousand dollars or more.
“Q. Did you then tell him if he would confess he would be paroled? A. I didn’t say; I said maybe he could be paroled.
“Q. Did you say you would recommend a parole? A. Yes, sir.”
Bisbee, a deputy sheriff of Ford county, testified that he was present when the defendant was arrested on Saturday morning, January 14, about 11 o’clock on the highway four miles west of Offerle. With him was Levi Davis, Leo Krumrey and Oliphant. On cross-examination Bisbee testified that Oliphant told the defendant the best thing he could do was to make a clear breast of it and tell a straight story, and defendant said that was what he was willing to do. He did not hear Oliphant say that it would be easier on him to make a confession, nor did he hear him tell the defendant that he would recommend a parole. He heard Oliphant tell the defendant “that you were implicated in this; fhat is your truck, you drove out there, you loaded this wheat out, you'better do it,” and the defendant said, “I will make a clean breast of it.”
Defendant’s version of the confession was somewhat different. He testified:
“Mr. Krumrey [another deputy sheriff] said it looked to him like best thing for me to do was to settle up. I told him if I did it would bring it onto me that I stole the wheat. I told him I wouldn’t do it under the circumstances.
“Q. What did they say? A. They said if I taken the wheat back to Mr. Stegman and apologize to Mr. Stegman, that is all there would be said about it.
“Q. Did they say there wouldn’t be any warrant issued? A. Said there wouldn’t be any. . . .
“Q. Then later was there a warrant issued for you? A. Yes, that afternoon. ...
“Q. What was the conversation that you had with him [Oliphant]? A. He told me the thing looked bad for me; best thing for me to do was just settle up if I was guilty. . . .
“Q. What did he [Bisbee] say to you? A. He said that the goods was on me to plead guilty, for it would cost me a lot of money, and they probably would parole me if I plead guilty. . . .
“Q. What else was said there, if anything? A. Yes, they promised to parole.
“Q. Who promised it to you? A. Mr. Bisbee.
“Q. What did he say? A. He promised to parole if I would plead guilty.
“The Court: Q. You say some one of the officers told you to take it where this man Stegman told you to take it — that is perhaps all there would be to it? A. Yes, sir.
“Q. Did you do that? A. No, sir.
“The Court : That is all.”
It appears that the trial court conscientiously discharged its preliminary duty to decide for itself in the first instance whether the confession or admission of guilt was voluntarily made. (State v. Hayes, 106 Kan. 253, 187 Pac. 675.) Once the court had satisfied itself of its voluntary character, the evidence of the confession and the circumstances under which it was given were properly submitted to the jury for such credence and significance as they saw fit to attach thereto. The fact that the trial court had concluded for itself that the confession was voluntary did not bind the jury. They were free to decide that question as they saw fit. The testimony which the jury saw fit to believe touching what the deputy sheriffs said to defendant does not fairly bear an interpretation that constraint, duress, or promise of immunity or of lenity induced defendant to confess. In State v. Kornstett, 62 Kan. 221, 227, 61 Pac. 805, it was said:
“It is well settled that an extrajudicial confession will not be received in evidence unless it has been freely and voluntarily made. If it has been extorted by fear or induced by hope of profit, benefit or amelioration, it will be excluded as involuntary. However, mere advice or admonition to the defendant to speak the truth, which does not import either a threat or benefit, will not make a following confession incompetent.”
To the same effect was State v. Dilgar, 111 Kan. 794, 797, 208 Pac. 620, and cases cited therein. See, also, 16 C. J. 721 et seq.
The- promise of leniency or other substantial benefit which will wholly exclude a confession of guilt induced by it must have been made or sanctioned by some person in authority and must have been of such a character as would be likely to persuade the accused to make a false confession. To this effect are Commonwealth v. Aston, 227 Pa. St. 112, and Rice v. The State, 22 Tex. App. 654, and other cases cited in note to 16 C. J. 726. In Wilson v. State, 19 Ga. App. 759, it was said:
“If the inducement is sufficient by possibility to elicit an untrue confession of guilt then the confession is to be rejected; otherwise it is to be admitted under proper instructions.” (Syl. ¶ 4.)
If the word “probability” were substituted for “possibility” we should regard this Georgia rule as sound and proper. We note, but cannot approve, the rule announced in the English case of Rex v. Dunn, 4 Car. & P. 641, decided many years ago, to this effect:
“Any person’s telling a prisoner that it will be better for him to confess will exclude a confession made to that person, although that person was not.in any authority as prosecutor, constable, or the like.” (Syl.)
Here the deputy sheriff of Edwards county expressed the opinion, to defendant that if he would return the wheat and apologize to its owner, probably the latter would “drop it” — that is, would not prosecute — and in any event he, the Edwards county deputy sheriff, would recommend a parole. This deputy sheriff of Edwards county was altogether without official concern with this crime, the venue of which lay in Ford county. We do not regard the Edwards county deputy sheriff’s expression of opinion of the improbability of a prosecution if the wheat were returned and an apology made to its owner, nor his promise to recommend a parole, as likely to induce this defendant to make a false confession of guilt, and no error was committed in permitting the evidence of the confession and the circumstances under which it was given to be submitted to the jury.
Error is also assigned on the instructions given and refused which dealt with the confession. The criticism of the one given is that it did not tell the jury what to do in the event they found it was not freely and voluntarily made. It did tell the jury that if voluntarily made, without threats or promises of indemnity from punishment or of lighter punishment, such confession or admission was competent evidence on the question of defendant’s guilt or innocence of the crime charged, and that the weight and degree of credit to be given to the evidence pertaining thereto rested wholly in the discretion of the jury. Mayhap the instruction given was not artistically framed, but it was a- substantially correct statement of pertinent law, and its submission and the rejection of one formulated by defendant on the same general proposition resulted in no error. •
A final argument is that the entire case rested on the confession of the accused. Wé think not. If a jury had found the defendant guilty on the other evidence outlined above and the inferences fairly deducible therefrom, with no intimation of a confession, it would have been impossible for an appellate court to have disturbed a judgment based thereon, under familiar and numerous precedents like State v. Lister, 121 Kan. 524, 247 Pac. 846, and State v. Lawellin, 125 Kan. 599, 264 Pac. 1035.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the defendants in an action brought by an administrator de bonis non against the former administratrix, who was the wife of the deceased and had resigned after holding that position for more than five years.
The judgment was against her and her bondsmen covering three items, about two of which there is no controversy here. The differences arose over an item of $3,039.42 coming to the deceased from the estate of his mother. The deceased had employed an attorney to assist him in collecting his share of his mother’s estate and had signed a deed effecting such adjustment two days before his death, which occurred on January 11, 1929, and the attorney received the above-named amount on February 8,1929.
The wife of the deceased was appointed administratrix and qualified as such in April, 1929. She received from the attorney collecting this for her husband — and who was afterward employed by her as her attorney — both personally and as administratrix, the sum of $700 in September, 1929. The balance of this inheritance is the only item involved in this controversy. The wife filed two inventories which did not mention this item, nor the $700, as belonging to the estate of her husband, and made her final report without making any reference thereto. She was cited by the probate court on the request of a creditor to appear on February 9,1931, for examination as to this item, at which time she testified under oath that her attorney was handling this fund, that he still had it, that it was put out at interest and he paid her interest thereon.
After this citation the administratrix, on the advice of her attorney, brought an action against the creditors of the estate and the other heirs in the district court in which she claimed all this inheritance money as belonging to her personally and not to the estate, and asking the court to so declare. This action was several months later dismissed without prejudice.
The attorney of the administratrix died in November, 1931, and in May, 1932, one of the creditors brought an action in the district court against the administratrix asking that this inheritance item be declared a part of the estate of the deceased and to require the administratrix to inventory it and account to the probate court for it. Judgment was rendered in this case against the administratrix in June, 1933, holding this inheritance money belonged to the estate of the deceased and not to his wife personally, and directing her to inventory the same in the probate court. She made such inventory in July, 1933, and resigned as administratrix in June, 1934.
The plaintiff in the action at bar was appointed administrator de bonis non in June, 1934, and commenced this action in September, 1934.
The plaintiff set up in his petition all the above statements in detail, together with many others, including the want of authority of the attorney to receive and receipt for this inheritance money about a month after the death of his client, the deceased in this action; the knowledge of the administratrix of this fact after September, 1929, when she received $700 thereof from such attorney, who was then her attorney personally and as administratrix, and her concealment of such collection and partial payment to her from the probate court until cited in that court to testify concerning the same.
The defendant answered by setting up in substance that her attorney had represented her family; that she had confidence in him; that he told her to bring the suit in Sedgwick county; that the money belonged to her individually and not to the estate by reason of a letter or instrument executed by her husband in 1916; that it was not proper that he should turn over the money until the suit in Sedgwick county, Kansas, had been disposed of, but he finally gave her $700 and never gave her any more, and that he died totally and hopelessly insolvent, and that such money had not been lost by her negligence or carelessness.
The plaintiff replied by alleging in substance that defendant was estopped from claiming that her attorney had failed to turn over to her the money and estopped from asserting that the money had been lost and that such loss was not by her negligence, and was estopped from asserting that she was not liable for the money that came into the hands of her attorney.
The inventories, petition of the defendant in her case against the creditors and heirs and her testimony in the probate court given on the occasion of her citation were among the items of evidence introduced by the plaintiff in the case at bar.
Much of the testimony offered by the defendant in support of the denials and allegations of her answer was rejected by the court on objection of the plaintiff that it was inconsistent with the position formerly taken by the defendant, and at the close of the evidence the trial court sustained the application of the plaintiff for an instructed verdict in favor of the plaintiff. Such instruction was given, and-a verdict was accordingly rendered for plaintiff, and judgment was rendered thereon against the defendant and her bondsmen, from which judgment this appeal is taken.
The appellants assign the following errors:
“The court erred in sustaining objections to the offer of evidence.
“That the court erred in holding the previous acts and declarations of the defendant estopped her from setting up that the money was lost without her negligence.
“The court erred in telling the jury to return a verdict in favor of the plaintiff and against the defendants.
“The court erred in overruling motion for new trial and entering judgment for the plaintiff.”
Appellants insist that the apparent inconsistent position taken by the defendant in this case from what she had theretofore taken does not amount to estoppel because no one was misled by her previous position taken, and the plaintiff and creditors did not rely upon her former position, but resisted her claim, and she was unsuccessful in maintaining her former position in court, citing 21 C. J. 1223, Light Co. v. Waller, 65 Kan. 514, 70 Pac. 365; Bank v. Duncan, 80 Kan. 196, 101 Pac. 992; Kington v. Ewart, 100 Kan. 49, 164 Pac. 141, and other cases in support of this contention.
The contradiction or inconsistent feature of the Waller case was in a suit for damages where the defendant’s answer contained a general denial of the negligence alleged in the petition, which was followed by an allegation of contributory negligence on the part of the plaintiff, and it was held that such pleas were not inconsistent, nor was the defendant estopped from denying the truth of an allegation in the petition by reason of the truth of such matter having been admitted by an attorney in his brief in a former appeal.
The Duncan case held that where a litigant asserted that he was indebted to a third person, not a party to the litigation, such was not conclusive upon him when subsequently sued by such person, which does not exactly apply to the situation here because of the fact that the creditors and heirs are the only litigants here concerned either by themselves or their representative, the administrator de bonis non.
The Kington case was like the Duncan case in that the parties to the litigation were not the same. The subsequent litigation was with a stranger to the earlier litigation, and the court held’ admissions in such earlier litigation was competent evidence, but was not conclusive, but open to explanation or rebuttal.
The following quotations from 21 C. J. 1223 are strongly in favor of the appellant’s contention when limited to the case brought against the defendant by one of the creditors in which she was not successful in maintaining her position:
“A party who has, with knowledge of the facts, assumed a particular position in judicial proceedings, and has succeeded in maintaining that position, is estopped to assume a position inconsistent therewith to the prejudice of the adverse party. . . . It is essential also that the party claiming the estoppel should have been misled by his opponent’s conduct, that he should have acted in reliance thereon, and that his rights would be injuriously affected if his opponent were permitted to change his position.” (21 C. J. 1223, 1225.)
It must be observed in connection with this announced principle that the same text enumerates several different kinds of estoppel and distinguishes them. The above quotation is under the heading of Equitable Estoppel and Quasi-estoppel, the latter being defined in an earlier section of the same article on page 1202 as follows:
“The term ‘quasi-estoppel’ has been applied to certain legal bars which are in some respects analogous to estoppel in pais and which have the same prac t.ical operation as an estoppel in pais, but which nevertheless differ from that form of estoppel in essential particulars.”
In the next section the work gives the grounds of estoppel generally as follows:
“Where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim, title or right, he cannot afterward assume a position inconsistent with such act, claim, or conduct to the prejudice of another who has acted in reliance on such conduct or representations. It is upon this just and equitable principle that a person is said to be estopped to take advantage of his own fraud or wrong. The doctrine of estoppel requires of a party consistency of conduct, when inconsistency would work substantial injury to the other party.” (p. 1202.)
In a still earlier section of the same chapter, at page 1061, this work defines estoppel in pais as follows:
“By the earlier usage matter in pais commonly meant matter of fact as distinguished from matter of record. In the law of estoppel, however, it meant, and still means, matter of fact as distinguished from matter of record or conventional writing. ‘Estoppel in pais’ therefore includes all forms of estoppel not arising from a record, from a deed, or from a written contract.”
It would appear that with the exception of the one suit by a creditor against this defendant the evidence refers to matters of fact to which the feature of successful maintenance of litigation will not apply.
The evidence introduced by the plaintiff in this case shows conclusively that appellant’s attorney had no right whatever to collect this inheritance money after the death of his client, regardless of his contract with his client being on a contingent basis. (Chase v. Chapman, 89 Kan. 196, 131 Pac. 615.) Neither is there any question about her concealing this fact of the attorney collecting and having this inheritance money to the detriment of the creditors and other heirs until the statute of limitations may have run or nearly run for them to pursue both the parties paying it and receiving it without authority. She is presumed to know the law, and in this case to know that the attorney of her deceased husband had no right whatever to receive such money. The fact that his doing so was concealed from her for about seven months did not in any manner justify her in further concealing the fact of his having collected it and having paid part of it to her until she revealed it in probate court after a citation. Her inventories are matters of fact which were such as to mislead the creditors. Her employment of the same attorney that had unlawfully collected this money as attorney for her as administratrix supplemented the wrong already done. Her statement of her position in the action she brought against the creditors and other heirs is a statement of matters of fact rather than matters of record or matters of law, and since the case was dismissed without any conclusion being reached, it does not come under the rule of successful maintenance of a cause of action, as urged by the appellant.
But eliminating the evidence of the proceeding brought by a creditor in which the defendant was unsuccessful, we have the other above-mentioned items showing a seriously inconsistent attitude and change of position on her part which was detrimental to the creditors and other heirs of the deceased whom the duty to protect was officially on defendant as administratrix. In the case of Bank v. Jesch, 99 Kan. 797, 163 Pac. 150, where the tenant’s share of a crop which was mortgaged before he left the county was in controversy and the landowner agreed with the mortgagee to turn over the amount of the mortgage out of the crop, less the expense of harvesting, and later refused, it was there said:
“The defendant maintains that no estoppel could have resulted, because the plaintiff’s position was in no way changed for the worse by reason of anything that had been said. In order for the conversation narrated to operate as a bar to a subsequent denial of the plaintiff’s interest it is not necessary that there should have been a concurrence of all the elements of an estoppel, as the term is usually defined. ‘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.)
This doctrine was sustained and approved in Nogrady v. Fourth National Bank, 136 Kan. 43, 12 P. 2d 787.
Appellant insists that if the inheritance money was lost by no fault of hers, she is not liable, and cites the rule as to the degree and extent of diligence required, as stated in 23 C. J. 1203 and 1205 and In re Beam, 8 Kan. App. 835, 57 Pac. 854. In the case last cited it was said on page 838 that “ An executor or administrator cannot be charged with debts or choses in action until he has actually received the money,’ ” but this statement is followed on the next page with an exception that—
“If the administrator should lose the right to recover such money, by neglecting to bring an action for its recovery before the right to do so was barred by the statute of limitations, he would then be properly chargeable with the loss.” (p. 839.)
The exception is at least partially involved in the case at bar.
The reference to 23 C., J. above is to the effect that an administrator is not liable for a debt not collected if he acted in. good faith and with prudence and diligence, or where the loss occurred by mistake, and that the burden of showing lack of diligence and good faith is upon the party alleging the same, all of which must be readily conceded, but the same reference at page 1205 states:
“If a personal representative does not proceed promptly with the collection of debts, and in the meantime they become uncollectible by reason of the insolvency of the debtors, or other supervening cause, he is chargeable with negligence which renders him individually liable for the amount of the debts so lost, unless he can show some valid reason for his delay or failure1 to act.”
In Carr’s Estate (No. 1), 24 Pa. Superior Ct. 369, it was said:
“The case is not helped by the fact that the debtor here was the attorney of the testatrix in her lifetime and of the executor after her death. He could not act as a disinterested counsellor for the estate and at the same time act personally for himself. If the executor desired to shield himself behind legal advice, he should have secured disinterested advice from an independent source.” (p. 376.)
To retain an attorney as her legal adviser after knowing that he collected inheritance money belonging to the deceased without lawful authority, and after he had concealed from her for several months the fact that he had collectéd it, and then to further conceal from the probate court, the creditors and other heirs such facts until cited for examination on the subject in probate court, and claiming to be the sole owner of such fund on the advice of such at-' torney, is certainly not acting with prudence and diligence in the interest of those whom she represented,.and it was a position entirely inconsistent with that which she now assumes, which latter position is so much to the injury and disadvantage of the creditors and other heirs of the deceased as to amount to estoppel, and the trial court evidently concluded that evidence offered by the defendant did not explain, rebut or excuse the wrong done.
We therefore conclude that some of the evidence offered by defendant was properly excluded, that the peremptory instruction was properly given and the motion for a new trial was properly overruled.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff brought this action for damages for the permanent injury to the fresh-water supply and water wells on land alleged to have been caused by salt water which defendants negligently and unlawfully permitted to escape from oil wells operated by them. Originally twenty-three persons, firms or corporations operating oil leases in the Greenwich field in Sedgwick county were named as defendants, but before the trial plaintiff dismissed his action against all defendants but four — -the Shell Petroleum Corporation, the Gypsy Oil Company, E. Frank Jones, and the T. M. Deal Oil and Gas Company. At the close of plaintiff’s evidence each of those defendants demurred thereto. The demurrer of the T. M. Deal Oil and Gas Company was sustained; the others were overruled. The jury answered special questions and returned a gen eral verdict for plaintiff of $11,000 against the Shell Petroleum Corporation. The answers to special questions and the general verdict relieved the Gypsy Oil Company and E. Frank Jones of liability. The Shell Petroleum Corporation has appealed and contends: (1) There is no substantial competent evidence to support the verdict, and that its demurrer to the evidence and subsequent motions for a directed verdict and for a judgment in its favor should have been sustained; and (2) that the court erred: (a) In overruling its motion to set aside answers to certain special questions and its motion to set aside the general verdict and to render judgment for defendant on the special findings as modified; (b) in refusing to give a requested instruction; and (c) in refusing to submit certain special questions to the jury.
Briefly stated, plaintiff alleged that he owned certain described land near Greenwich; that defendants conducted oil and gas mining-leases in the Greenwich field; that they conducted their operations in violation of R. S. 55-118 and 55-121; that they caused and allowed salt water and other deleterious substances (hereinafter called salt water), produced from their operations, to escape from their leased premises and to enter the fresh-water strata on plaintiff’s land, permanently polluting the same so as to make it unfit for use for domestic or livestock purposes; that the Shell Petroleum Corporation negligently and wrongfully collected the salt water from certain of the oil wells on its leases, and with a heavy pressure forced it into an abandoned well on its lease, and that it “broke through the casing, came up around the casing, and in other ways unknown to plaintiff” escaped into the fresh-water strata underlying plaintiff’s land, polluting the same; that the Shell Petroleum Corporation collected salt water from some of its oil wells into a pond constructed over an unplugged water well, from which the salt water entered and polluted the fresh-water strata on plaintiff’s land; that all the defendants turned salt water produced from a well back into the well between casings and turned salt water into ponds in such a way that it escaped and polluted the fresh-water strata on plaintiff’s land, all to his damage in a sum named. The Shell Petroleum Corporation answered with a general denial and a plea of the two-year statute of limitations. Also it specifically denied that in its operations it violated any of the laws of the state, and alleged its operations had been in accord with the latest recognized and approved methods. After the trial was in progress it amended its answer by further alleging that if the water on plaintiff’s land had become polluted by salt water, “such . . . pollution was caused by . . . parties other than this defendant, to-wit:” naming seventeen persons, firms or corporations, fourteen of whom were originally named by plaintiff as defendants and the action later dismissed as to them, and three of whom had not been so named. It does not appear that any of these persons, firms or corporations was a party to the action at the time of the trial, or participated therein. The reply was a general denial. The jury answered special questions as follows:
“1. Do you find that, salt water from the leases of any of the defendants polluted the seventy-two-foot water zone under the plaintiff’s land? A. Yes.
“2. If you answer question number 1 in the affirmative, then state from what leases such polluting salt water came. A. Shell Petroleum Corp.
“3. If you answer question number 1 in the affirmative, then state how such salt water traveled from each of such leases of the defendants to the plaintiff’s wells. A. Forced from the 2,000-foot zone from the Shell Petroleum Corporation disposal well.
“4. Under what portions of the plaintiff’s land is the seventy-two-foot water zone polluted? A. Under the 440 acres.
“5. What was the fair and reasonable market value'of the plaintiff’s land immediatejy prior to the pollution of his water wells? A. Seventy-five dollars an acre.
“6. What was the fair and reasonable market value of the plaintiff’s land immediately after the pollution of his water wells? A. Fifty dollars an acre.
“7. What elements have you considered in fixing the amount of damage? A. Pollution of the water under the 440 acres on the Alliston farm.
“8. Did the operators of any oil wells in the Greenwich field fail to properly case off and protect fresh-water sands? A. Unable to determine.
“9. If you answer question number 8 in the affirmative, then state which wells in the Greenwich field were not properly cased to shut off and protect fresh-water sands. A. Unable to determine.
“10. Is the Fischer water well in the southeast quarter of section 15 producing from the same water sand or formation as the Alliston seventy-two-foot windmill well? A. In our judgment it is.
“11. Is the Kraft windmill well in the northeast comer of the south half of section 13 suitable for watering stock? A. No.
“12. Is the seventy-two-foot water sand underlying plaintiff’s land permanently polluted by salt water and oil refuse? A. Yes.
“13. Do you find that Gypsy Oil Company cemented its surface casing to prevent the commingling of water from the salt-water and fresh-water strata? A. Yes.
“14. Do you find that Gypsy Oil Company constructed salt-water ponds on its lease in which to impound its salt water? A. Yes.
“15. Do you find that any salt water escaped from the lease of Gypsy Oil Company and went into plaintiff’s well or wells or underground water-bearing strata? A. No.
“17. Do you find that any salt water from the Jones ‘Stockyards’ oil well polluted the water well of plaintiff? A. No. . . .”
Appellant’s principal contention here is that there is no substantial competent evidence to sustain the verdict. This requires an examination of the evidence. Before going into that, a few things may be noted concerning which there is no longer any controversy: (1) Appellant is correct in saying that in a tort action such as this a verdict for plaintiff which rests upon mere conjecture and speculation cannot be permitted to stand. (See Hendren v. Snyder, 143 Kan. 34, 41, 53 P. 2d 472, 476, and authorities there cited.) (2) It is conceded by appellant that plaintiff’s “windmill” water well is polluted with salt water, and that the evidence is sufficient for the jury to find that the 72-foot water-bearing formation underlying plaintiff’s land is so polluted. Hence, it will not be necessary to review the evidence on this, point except as it is incidental to the principal point to be determined. (3) While appellant regards the amount of the verdict as large, the appeal is not from the excessiveness of the verdict. The contention is the evidence does not support any verdict against appellant. Hence, it is not necessary to review the evidence specifically relating to the amount of damages sustained by plaintiff. (4) Appellant in effect concedes its liability if there is substantial competent evidence to show that salt water from its wells polluted the fresh water in plaintiff’s land, even though the evidence also shows that salt water produced by other operators contributed to such pollution.
With these things, which are no longer in controversy, in mind we will examine the evidence to see if there is substantial competent evidence to support the verdict against appellant. The accompanying plat may aid us. It has been prepared from plats furnished by the litigants, although not a reproduction of any of them; some details have been omitted, but so far as these are important they are supplied by description.
The figures 1, 2, 3, 4, 5, 6, 7 (in NE%, sec. 23, NW%, sec. 24, and SE14, sec. 14) indicate locations of water wells on plaintiff’s land. Other water wells noted are F-l, the Fischer well (on SE14, sec. 15), G-l on the Gypsy Oil Company lease (on NW%, sec. 14), and K-l and K-2, the Kraft wells in section 13, near the east side, all of which were polluted. The figures 1, 2, 3, 4, on the Gypsy Oil Company’s lease show location of its oil wells. The letters J show the location of operations of E. Frank Jones; the letters P of salt-water ponds discussed in the opinion; the letter X the Greenwich townsite, while A-l (in NE1/^ sec. 15) shows the location of appellant’s discovery well, and B-4 (in SW1^) sec. 15) of its disposal well.
Plaintiff owns 440 acres (SE% 14, NE% 23, N% of NW% and SW% of NW^4, 24, 26, 2 E) shown on the plat. The improvements are in section 23, near the east side. The principal well, No. 1,
spoken of as the windmill well, 72 feet deep (surface elevation 1,382 above sea level) furnished an apparently inexhaustible supply of water suitable for livestock and domestic use. The house well, No. 2, 30 feet deep, furnished good water, but the supply was small, scarcely enough for household use. Across the road east is a well, No. 3, 42 feet deep, which furnished a small supply of good water. In the hog lot north of the house is a well, No. 4, 42 feet deep, which furnished a small supply — only enough to water a few hogs— of good water. In the pasture on section 14 is a well, No. 7, 60 feet deep (el. 1,388), which furnished a fair supply- — -the windmill, if permitted to run, would pump it dry — of good stock water. In the fall of 1930 the water from the windmill well, No. 1, began to smell of sulphur, later to taste salty, and by March, 1931, became so salty that it was unfit for use. This action was brought in November, 1931. The 72-foot stratum from which the water in this well comes is the formation extending under plaintiff’s entire farm, now conceded to be polluted with salt water to the extent it is unfit for use. When this well became so polluted plaintiff deepened well No. 3 by having it drilled to a depth of 72 feet. At 60-odd feet a light vein of fresh water was struck; at 72 feet an abundance of water was found. It had a slight taste of salt, but could be used. It was used for stock from early in April, 1931, but it became more salty all the time until the next July, when it became so salty it could not be used. Plaintiff then drilled well No. 5 (el. 1,384), west of No. 1, to a depth of 74 feet, and found an abundance of water, but it was too salty for use. He then drilled well No. 6, a short distance north of No. 3, hoping to strike the light vein of fresh water at 60-odd feet and create a pocket there with a charge of dynamite sufficient to collect enough water for his needs from the fresh-water vein, but when this was done the water in that well was too salty for use.
In 1928 drilling for oil began in the Greenwich field. The Shell Petroleum Corporation completed its first well June 30, 1929. It is situated in the southeastern part of NE^, sec. 15, marked A-l on the plat, and is spoken of in the record as the discovery well. By March, 1931, appellant had 15 producing oil wells which it was operating on leases owned or controlled by it, covering all of section 15, except the townsite of Greenwich situated on a part of the S%, SW%, sec. 15, and covering also part of sections 14 and 22, as shown on the plat. We have not attempted on our plat ..to show the location of all wells operated by appellant. Also, by March, 1931, 21 oil wells had been drilled within the townsite of Greenwich — four by appellant, five by T. M. Deal Oil and Gas Co., one by E. Frank Jones, near the east side of the townsite, north of the railroad, marked “J” on the plat, and spoken of in the record as the “stockyards well,” and the others by various persons, firms, or corporations. Also one or two oil wells had been drilled on the N% NW%, sec. 22, and perhaps a few in sections 10 and 11, north of 15 and 14. These operators, or most of them, were originally named as defendants in this action, but it was dismissed as to them before the trial. E. Frank Jones had also operated to some extent on the E% of SE1^ of NID4, sec. 22, also marked “J” on plat. The lease of the Gypsy Oil Company covered the NW% and the NW1/^ of the SW%, sec. 14, and on this four oil wells had been drilled, as shown on the plat. These wells were completed in May, June and December, 1929. In drilling them no gas was discovered and no salt water was found except that contained in the oil. There is no showing in the record that any gas or salt water was encountered in drilling any of the oil wells in the Greenwich field, except that contained in the oil. Each well that produced oil produced salt water with the oil. The operators separated the oil from the salt water by settling tanks at the wells, or by some other process.
The Gypsy Oil Company disposed of the salt water from its four oil wells by piping it into salt-water ponds. These were constructed by taking the dirt to a depth of about four feet from an area the size of the pond desired and piling it around the edges. It first constructed such a pond on the NW1^, sec. 14, near the west line, large enough to hold 20,000 barrels of salt water. This proved insufficient, and another similar one, with a capacity of 25,000 barrels, was constructed adjoining the first. Into these two ponds, by March, 1931, the Gypsy Oil Company had turned 175,000 barrels of salt water. What the ponds would not hold had percolated into the subsurface strata — perhaps some of it had evaporated.
The evidence discloses that for some months early in 1930 E. Frank Jones, in the operation of his “Stockyards well,” had turned the salt water back into the well between two strings of casing therein. There is evidence that a few other operators in the Greenwich field, and some in the Benton field — six miles east of Greenwich — disposed of their salt water by piping it into salt-water ponds, similar to the method used by the Gypsy Oil Company, or turned it back into the oil well, between casings, similar to the method used by E. Frank Jones.
The oil-producing area of the Greenwich field appears to have been from a short distance southwest of the Greenwich townsite north and east through to sections 15, 14 and 11. East and south of this area dry oil-well holes had been drilled — one on plaintiff’s land in section 24, near the northeast corner, two on the S% of NE14, sec. 22, and on appellant’s lease was one on the NE1/^, SW%, sec. 14. North and west of the producing area on appellant’s lease there was a dry hole, a location northeast of the center of section 15, and another, marked B-4 on the plat, and known in the record as the disposal well, a short distance north of the northwest corner of the Greenwich townsite. Also, by March, 1931, some of the oil wells operated for a time had been plugged. This appears to have included most of the wells in the Greenwich townsite, two on appéllant’s lease just north of the townsite, and one in section 14, near the west line, and also one on the Graham Bros, lease on the NW]/t of NW14, sec. 22.
Appellant began disposing of its salt water in ponds. The map shows three of these, but only one was described in the testimony. This was located north of the Greenwich townsite, about the center of the N%, SW1^, sec. 15 (el. 1,387), and over an unplugged water well about 60 feet deep. These ponds being insufficient to care for the salt water produced by appellant’s operation, it began, on November 3,1929, to turn the salt water into the disposal well, B-4, and by the middle of March, 1931, a total of 2,780,325 barrels of salt water had been produced from its oil wells and injected into B-4, beginning with atmospheric pressure and increasing gradually to a pressure of 750 pounds per square inch by October, 1931, and to 950 pounds by December 2, 1931, at which time it discontinued the well as a disposal well, having acquired a pipe line to the Arkansas river for disposing of its salt water. The jury found the salt water forced into this well B-4 by appellant polluted the plaintiff’s 72-foot fresh-water stratum, and appellant contends that finding is not sustained by the evidence.
Perhaps here we should set forth the logs and casing record of the discovery well, A-l, and the disposal well, B-4. The discovery well, A-l (el. 1,388), was drilled with cable tools to a depth of 3,174 feet, where oil mingled with salt water was discovered. The first water shown by the log was in a gray shale, 1,900 to 1,920 feet, which produced 2% bales of water; the next was in fine sand, some gray shale, from 1,930 to 2,942 feet, which produced 3 bales of water at 1,999 feet. The casing record shows: 20-inch casing set at 78 feet; 15V2-inch set at 788 feet; 12%-inch set at 1,333 feet; 10-inch set at 1,766 feet; S^-inch set at 2,770 feet; 6%-inch set at 3,053 feet, and 5-inch set at 3,160 feet. The testimony was that the various-sized casings were set in an oil well when it was being drilled to shut off water encountered in the drilling. If that was the reason for setting the various sizes of casing in this well the log does not show all the water strata encountered in the drilling. There is at least an intimation in the evidence that logs of wells are not always accurately kept. The disposal well, B-4 (el. 1,388), was drilled with rotary tools to a depth of 2,963 feet. The log of this well does not show that any water-bearing formation was encountered in the drilling. There is evidence to the effect that it is not so easy to keep an accurate log of a well drilled with rotary tools as it is of one drilled with cable tools. The log shows a 120-foot stratum of "broken lime” from 1,832 to 1,952 feet, and 105 feet of “shale-shells” from 1,952 to 2,057 feet. No oil was discovered in this well. It was plugged at 2,887 feet with a wooden plug, and appellant concluded to use 124 feet of it at a depth of 1,896 to 2,020 feet as a salt-water disposal well, not because a water-bearing formation had been found in this well at that depth, but because two water-bearing strata had been found in the discovery well, A-l, at about that depth. The casing and plugging records of this well, B-4, show that a 15%-inch casing was put into the well 87 feet and left there, and that an 8%-inch casing was put into the well 2,561 feet. The 8%-inch casing was “knocked off” (perhaps with a shot of some kind) at 2,020 feet, and the part of the casing below that point was left in the hole and plugged at that point with a cement plug. The 8%-inch casing was then pulled up 124 feet, so that the upper string of it was suspended in the well, with the lower end at a depth of 1,896 feet. The plugging record shows “bridged hole and recemented 8%-inch casing at 1,896 feet with 50 sacks cement and 25 lbs. calcium chloride.”
This was on October 25, 1929. On February 11, 1930, the plugging record shows “recemented between the 15%-inch and 8%-inch casing to the top of the hole with 430 sacks . . . and then cemented the cellar with 50 sacks.” What is spoken of as the cellar is an excavation at the top of the well 8 by 8 and 8 feet deep. The bottom of this was cemented; the sides were not. The 15%-inch casing came to the top of the cement in the bottom of the cellar.
In the latter part of January, 1930, salt water came up in the cellar of Gypsy well No. 4 (el. 1,372) between the 12%- and 8%-inch casing and filled the cellar (8x8x8), and overflowed. That continued for several months and amounted to about 250 barrels per day in May, 1930. It became necessary to cement the well between the two strings of casing to shut this water off. It took about 240 pounds pressure to put the cement in against the pressure of the salt water coming up. Salt water also came up between the casing at Gypsy well No. 1 (el. 1,380), but did not overflow the' cellar.
A chemist, called as a witness by plaintiff, testified that he had examined and made an analysis of water taken from appellant’s disposal well September 29, 1934 (our mark “A”), and also water taken from plaintiff’s windmill water well of the same date- (our mark “B”), and of water taken from plaintiff’s'windmill water well in March, 1935 (our mark “C”). These analyses showed parts per million of the solid contents to be as follows:
A B C
Calcium..................... 4747.1 1830.7 2059
Magnesium.................. 1747.6 349.9 381
Alkalies ..................... 36537.8. 3672.2 4188
Chlorides ................... 68759.0 8795.7 9827
Sulphate .................... 53.5 1381.8 1892
Bicarbonate ................. 67.1 183.0 232
He testified that in his opinion 1.65 parts of water A mixed with water B would produce substantially water C. He was interrogated about the greater quantity of sulphate and bicarbonate shown in waters B and C compared with A. He testified the variation of those elements, as shown in analysis B and C, might indicate a normal variation in the water, but those compared with analysis of water A indicated either a greater quantity of sulphates and bicarbonates in the Alliston water before water B mingled with water A, or that water A, at some place between the disposal well and the Alliston well, had passed through or come in contact with formations which increased its sulphate and bicarbonate contents. Furthermore, these elements were not what made the Alliston water unfit for use.
Y. L. Martin was called by plaintiff as an expert witness on disposal of salt water and other oil-field waste and the pollution of fresh water therefrom. He was a graduate of the university engineering course, employed for a time as an engineer by the federal government, and from 1916 to 1932 was the chief engineer of a large oil-producing company, having general charge of all its engineering activities, including all engineering work necessary for the production and marketing of crude oil, the disposal of waste and salt water in producing fields, and pollution problems. Since 1932 he has maintained his own office as consulting engineer on such questions. For three years he was chairman of the American Petroleum Institute's committee on disposal of production waste. He had been employed frequently on such problems, not only by various oil companies, but by cities, counties, states, and the federal government. He did not qualify as an expert chemist or geologist, although in his work he had much to do with both of those subjects. His qualifications are not questioned on the matters concerning which he testified. He had been familiar with the Greenwich oil field since oil operations began there, and he had personally gone over the field on more than one occasion, examined' the logs of many of the oil wells, obtained information respecting the water wells, and observed and studied the method of oil-production operations therein, and the method used by the operators in disposing of the salt water. He gave it as his opinion that the 72-foot formation from which plaintiff’s principal water supply came extended throughout the entire field, with occasional hard spots therein where dry water wells had been drilled; that the disposal of salt water by turning it back into oil wells between the casings was a dangerous practice unless it was permitted to go in with gravity or very low pressure; even then it might permit the salt water put back into the well to escape into fresh-water strata; that salt water put into ponds would percolate into subsurface strata down and out from the bottom of the pond and would pollute any fresh-water strata with which it came in contact. He examined the log and the casing and plugging record of appellant’s disposal well B-4 and gave it as his opinion that the formation into which the salt water was injected in that well was not sufficiently porous to absorb it; that it would naturally seek to escape from the point of injection in the direction of the least resistance; that with the force applied to it, and the quantity of water put into the well, there was no possibility that it could be retained in the formation in which it was placed, but that it would go into any formation, below or above that, which it could get into, following the line of least resistance; that the plugging of that well, as shown by records, was not such as to prevent the salt water forced into it from coming up in the annular space inside of the well outside of the 8%-inch casing and getting into and polluting the fresh-water formation from which plaintiff’s supply of fresh water was obtained. He further testified that following the way of least resistance the water injected into the well might follow out through the formation into which it was injected until it reached another oil well which had been drilled into that formation and come up around the casing of such well to the fresh-water strata, and that it might come up through cracks in the underground formation. He gave it as his opinion that the water which came up into the cellar of the Gypsy Oil Company’s well No. 1, and-the water which came up into and overflowed the cellar of the Gypsy Oil Company’s well No. 4, was water that had been forced into the injection well B-4 by appellant, and that the salt water injected by appellant into its disposal well B-4 is the salt water which had polluted the 72-foot water-bearing formation under plaintiff’s land, and that in reaching that conclusion he had attempted to eliminate other sources of possible pollution. He further testified that the salt water which polluted the fresh-water stratum under plaintiff’s land came from the west, and that in his opinion the pollution was permanent.
All logs of wells and core drillings used in the evidence showed one or more anhydrite beds between the elevation of 72-foot water-bearing formation under plaintiff’s land and that of the bottom of the disposal well. Hence, if the water from the disposal well polluted the water under plaintiff’s land it had to pass through or by these anhydrite beds. Anhydrite is a dry soluble calcium sulphate. This would account for the fact that the chemical analysis of waters from plaintiff’s 72-foot well showed it contained more parts per million of sulphate than the water from appellant’s disposal well.
There was evidence that near Benton, six miles east of Greenwich, there were oil-well operations, and that the operators disposed of the salt water in ponds or by turning it into the well between casings. There was also evidence to the effect, the 72-foot water-bearing formation under plaintiff’s land dipped from the east to the west at the rate of about 18 feet per mile, and that it outcropped at the surface near Benton. While there appears to be some conflict in the evidence as to this dip and outcrop, we shall not bother with that. Appellant contends the pollution of which plaintiff complains could have been caused by the salt water permitted to escape by the operators in the Benton field, and that this source of pollution has not been eliminated. The point is not well taken. The evidence makes it cléar that the salt water which caused the pollution of which plaintiff complains came from the west. Not only is that the testimony of Martin, but the evidence shows that plaintiff’s windmill well, No. 1, became so polluted in March, 1931, as to be unfit for use, while east of it the deepened well, No. 3, did not become so polluted until in July of that year. The evidence also shows that the Fisher well, F-l, west of plaintiff in the SE^, sec. 15, was found to be polluted in March, 1931, and the water well on the Gypsy lease G-l, west of plaintiff in the NW%, sec. 14, was found to be polluted in January, 1932. Just how long either of those wells had been polluted when the pollution was found is not shown by the evidence. The Kraft well, K-l, in the northeast corner of the S%, sec. 13, was polluted by the early part of 1933, and another well drilled on the Kraft land, K-2, was a little salty in July, 1933, but got worse as it was pumped, until the fall of that year it was so polluted it could not be used. Hence, there is eliminated any possible pollution from operators in or near Benton, irrespective of the dip or out-crop of the 72-foot water-bearing formation on plaintiff’s land.
Appellant argues pollution by the salt water of other operators is not eliminated by the evidence, and specifically refers to the fact that the Gypsy Oil Company turned 175,000 barrels of salt water into ponds having a capacity of only 45,000 barrels, and argues that approximately 130,000 barrels of this must have percolated into subsurface strata, and that this could have been the source of the pollution of which plaintiff complains. This point is not well taken. The evidence is clear and not controverted that salt water percolating into subsurface strata from salt-water ponds pollutes the first fresh-water stratum with which it comes in contact, that is, the one nearest the surface of the ground. The evidence also shows the fresh-water strata on plaintiff’s land nearer the surface than the 72-foot stratum were not polluted. This eliminates the possibility that the pollution of which plaintiff complains was caused by water which percolated from salt-water ponds of the Gypsy Oil Company, or of appellant, or of any other operator in the Greenwich field. There is other evidence which tended to justify the jury in relieving the Gypsy Oil Company of liability in this case, but we do not deem it necessary to set it out, since the question of the Gypsy Oil Company’s liability is not before us. •
Appellant argues that the pollution of which plaintiff complains, by salt water put back into the oil wells between casings, has not been eliminated by the evidence. As before stated, there is evidence that for several months in the early part of 1930, Jones put the salt water from his stockyards well back into the well between the casings. There is evidence that salt water was disposed of in the same way by other operators in the Greenwich field — including the appellant, particularly in its discovery well A-l, although most of that was after March, 1931. None of this water was forced into the well, but flowed in by gravity. It is in evidence that the state corporation commission recommends this method of disposing of salt water. There is no intimation in the evidence that in disposing of their salt water as they did either Jones, or any other operators using this method, violated the regulations of the corporation commission pertaining thereto. Plaintiff’s witness, Martin, did say there were circumstances in which salt water put into an oil well between casings would get into fresh-water strata. He was not asked to describe such circumstances. Whether it would do so or not perhaps would depend on the location of the fresh-water strata, the depth of the casings between which the salt water was run, the formation in which the outside casing was set, and how it was set. No showing was made either by plaintiff or by appellant on those matters. They seem to have left the matter with the showing that some operators put salt water back into wells in substantial conformity at least with the rulings of the state corporation commission, with the bare possibility, from Martin’s testimony, that such water, under some circumstances, might pollute fresh-water strata. Perhaps that is the reason the jury relieved Jones of liability to plaintiff in this case, although the question of Jones’ liability is not before us. We regard the possibility that the pollution of which plaintiff complains came from this source as having been fairly well eliminated by the evidence; certainly it was not established.
This leaves the only reasonably possible source of the pollution of which plaintiff complains to be the salt water which appellant injected into its disposal well B-4j by heavy pressure. That is what the jury found, and the finding was approved by the trial court. The evidence supporting it may be summarized as follows: Disposing of salt water by forcing it with heavy pressure into an oil well is not recommended by the state corporation commission, and Martin, with his years of experience in the disposal of salt water from oil-well operations, said it is a dangerous practice. The formation into which appellant injected the salt water in this well would not absorb it readily; that is shown by the fact that heavy pressure had to be used to get the water into the well. When the salt water was put into this well by force, and into a formation which would not absorb it without such force, it would escape in the way or direction where it- met the least resistance, which might be out in any direction, or down or up into some other formation. That was Martin’s testimony ; but more than that, it is a matter of common knowledge. If the least resistance to the escape of such water was up the well on the outside of the pipe, that is the way it would go until it found some formation which would permit it to spread out. If that was the 72-foot fresh-water-bearing formation under plaintiff’s land it would pollute the water in that formation. That is the substance of Martin’s testimony on that point, and we see nothing unreasonable about it. Now, there is evidence that early in 1930 salt water from some source came up between the casings at two of the Gypsy Oil Company wells, and at one of them filled and overflowed the cellar for several months, until it was necessary to fill the space between the casings with cement in order to stop the flow of the salt water, and that it required a pressure of about 240 pounds to the square inch to force the cement into the casings. This salt water had to come from an oil well, for no salt water was discovered in the field other than that found with the oil, or separated from the oil and put back into some well. Apparently it had been so separated from the oil and put back into some well, for it was not mixed with oil. It came with force. The only operator using force to put salt water into a well was appellant — in its well B-4. There was no gas discovered in the field, nor anything else suggested by the evidence which could have forced salt water up the casings of the Gypsy Oil Company’s well except the force applied by appellant in putting salt water in its disposal well, B-4. Another thing: The 72-foot formation from which plaintiff got his water supply dips to the west. Witnesses for plaintiff and appellant agree on that; the apparent conflict in the evidence about it pertained to the extent of the dip, whether the dip is uniform, and the place of the outcrop of the formation. Naturally, the lower elevation of that formation was filled with water. The salt water which polluted it came from the west. Salt water is heavier than fresh water. The formation was polluted over a wide area. Naturally it would take force to cause salt water to come into that formation already filled with water and pollute it so thoroughly over such a large area. The only place where salt water was being put into the ground with force in such a way that it could pollute this formation was at appellant’s disposal well B-4. The evidence discloses that when appellant quit forcing water into the disposal well in December, 1931 — the pressure last used was 950 pounds to the square inch — and took the force pump off it, salt water came up out of the well with a pressure of 135 pounds. This water was piped to the salt-water pond, and the well continued to flow salt water into the pond up until the trial of this case in March, 1935. This indicates plenty of force on the water in the well. Perhaps other items of evidence should be taken into account, but we deem these sufficient to show that there was abundance of substantial competent evidence to sustain the verdict; indeed, it is difficult to see how any other verdict could have been returned under the evidence.
Appellant points out what it regards as conflicts or discrepancies in the testimony, especially of plaintiff’s expert witness, Martin, brought out on cross-examination. A detailed analysis of these is not deemed necessary. The weight to be given to. his testimony was for the jury and the trial court.
From what has been said it was not error for the trial court to deny appellant’s motion to set aside answers to special questions Nos. 1, 2 and 3. Appellant makes much out of the answer returned by the jury to special question No. 8, and says it is equivalent to “no.” Plaintiff argues the answer is equivalent to “yes," since appellant in its second amended answer specifically alleged the pollution of plaintiff’s water was caused by other operators, naming them. Our view is, this question and No. 9 should not have been submitted, for neither party had offered evidence from which it was possible for the jury to answer any other way than it did. Special questions, the answers to which cannot be found in the evidence, should not be submitted to the jury. In fairness to the trial court we should say counsel advise us these questions were in a list handed to the court for submission, and the court, having examined them, marked them not to be submitted, but through an error in copying the list they were included in questions submitted. We do not regard either the questions or the answers as having any bearing on the merits of this appeal.
Appellant complains of the refusal of the court to give an instruction to the effect that before plaintiff could recover from appellant he must prove that it “was responsible for or contributed to a permanent pollution of his fresh water.” This requirement was embodied in the instructions given; in fact, the trial court, in several of its instructions, from different viewpoints, treated the matter of the permanency of the pollution and the necessity of plaintiff’s proving it. Appellant argues that if the pollution came from salt water it injected into the disposal well, and if, as was shown by the evidence, it had discontinued injecting salt water into the disposal well, eventually, at some time in the future, the salt water in the 72-foot formation on plaintiff’s land would be pumped out or find some other outlet, and that the water would clear up. Plaintiff’s expert witness, Martin, testified that was possible, although he further testified that in his opinion the 72-foot formation was permanently polluted. The evidence discloses that plaintiff’s windmill well was thoroughly polluted in March, 1931. The trial of this case was had about four years later, in March, 1935. The chemist’s analysis of the water taken from plaintiff’s well a few days before the trial showed a greater chloride content than an earlier analysis of the water from the well, indicating that the pollution had increased rather than diminished up to the time of the trial. The evidence further showed that up to March, 1931, appellant had injected into its disposal well approximately 2% million barrels of salt water, and had continued the injection under increased pressure until December, 1931; that some of this water had escaped by coming up between the casings of the Gypsy Oil Company’s well No. 4 and running over the cellar — about 250 barrels a day for a time; also, that since appellant had ceased injecting salt water into its disposal well in December, 1931, the salt water had been running out of the top of that well, but the quantity was not estimated. It further disclosed that the 72-foot water-bearing formation under plaintiff’s land was polluted over a wide area. The length of time it would take plaintiff’s windmill well to clear up from this pollution by the pumping of water from that and other wells to the same formation would be so long that the jury, under the evidence, was justified in finding it permanently polluted.
Appellant further complains of the refusal of the court to submit certain additional special questions relating to the possibility of pollution of plaintiff’s well water from the operation of certain other operators. In view of the evidence with reference to the possibility of pollution from the operations of such parties previously discussed herein, and in view of the fact that the court did submit more special questions than it was required under the statute (R. S. 60-2918) to submit, there was no error in this ruling.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order sustaining plaintiff’s motion to strike certain portions of defendant’s answer.
It is contended this order was equivalent to sustaining a demurrer to defendant’s answer and is in substance a decision on the merits of the action.
The action was brought by Saline county against the city of Salina, to recover payments of special assessment taxes levied by the city and placed on the tax rolls of the county, which taxes the county paid to the city without having collected the same from the owners of the property against which such taxes were assessed.
The action was filed December 13, 1932. On January 14, 1933, defendant lodged a general demurrer against the petition. The cash- basis law became effective March 31, 1933. Defendant’s demurrer was overruled July 25, 1933.
Thereafter defendant filed its answer. Plaintiff filed a motion to strike paragraphs 4, 6, 7 and 8, of the answer. Upon the hearing of the motion to strike defendant was granted leave to amend paragraphs 4 and 8 of the answer. Paragraph 4 pleaded a set-off against the claim of plaintiff for interest and penalties allegedly collected by the county on delinquent special assessments. Paragraph 8, among other things, alleged failure of plaintiff to comply with the provisions of the cash-basis law. By agreement plaintiff’s original motion to strike was treated as leveled against the amended answer and was sustained. From that ruling defendant appeals.
Appellant lists as specifications of error the ruling sustaining the motion to strike paragraphs 4, 6, 7 and 8 of the answer. We assume, however, from what was said on oral argument and from appellant’s brief, it relies only on the ruling pertaining to paragraph 8. We shall, therefore, limit the opinion to that complaint.
Paragraph 8 of appellant’s answer discloses not only the facts relied upon, but fairly discloses appellant’s general contention. It is as follows:
“For its further answer, defendant alleges that if the plaintiff at any time had any claim against the city of Salina on account of the matters and things set forth in the plaintiff’s petition, then such claim was a liquidated claim and was definite in amount on the 30th day of April, 1933; that by the provisions of chapter 319 (H. B. 745) of the Laws of Kansas, 1933, which became effective upon the 31st day of March, 1933 (now secs. 10-1101 to 10-1122, R. S. Supp. 1933) the city of Salina was required to and it did duly publish and post, in the manner set forth in said law, a detailed and itemized statement of the amounts of all registered warrants owing by it, the amounts of all overdrawn funds, the amounts of all valid claims against the municipality for services rendered or material furnished prior to the close of business on the last day of April, 1933, and the amounts of all of the other indebtedness of such municipality not secured by bonds and not enumerated above, which were valid obligations of the municipality at the close of business on the last day of April, 1933, giving the date, the name of the creditor, and a short statement of what the indebtedness was for, and the amount of such indebtedness, and notifying every person claiming to be a creditor of such city whose claim or demand is not shown on such posted or published statement that he must present to the governing body of such city a duly verified voucher covering said claim or demand on or before May 15th, 1933; said law further provided that the governing body of such city should assemble on May 15, 1933, for the purpose of passing on all claims so presented, and either allow or disallow the same; that prior to April 30th, 1933, and prior to the enactment of said law, the board of county commissioners of Saline county, Kansas, did present to the defendant, the city of Salina, a statement showing the alleged indebtedness of the city of Salina to the board of county commissioners as sued for in the plaintiff’s petition, but such claim was not allowed by the governing body of the city of Salina, and the claim was not thereafter presented to or filed with the defendant, or its governing body, by the plaintiff, and the governing body of the city of Salina in posting and publishing the notices as required by chapter 319 of the Laws of Kansas, 1933, did not list the indebtedness claimed to be due from the city of Salina to the plaintiff for the reason that the defendant did not consider said claim to be a valid claim, debt or obligation of the city of Salina; a true and correct copy of the notice and statement posted and published by the city of Salina, which was duly posted and published at the times and in the maner required by law, is attached hereto, made a part hereof and marked exhibit ‘X.’ Said notice contained a statement that any person claiming to be a creditor of the city of Salina, whose claim or demand was not shown upon such posted and published statement must present to the governing body a duly verified voucher covering said claim or demand on or before May 15th, 1933, and that the governing body would assemble on said date for the purpose of passing upon all claims so presented, and either allow or disallow the same; that the plaintiff did not thereafter and on or before May 15th, 1933, present to the governing body of the city of Salina a duly verified voucher covering its said claim or demand, or any other statement or claim of any kind whatsoever, pursuant to said notice and the requirements of said law; nor did it ever at any time appeal to the district court from any order or action of the governing body of said city, in the manner provided by said chapter 319, Laws of 1933; that said law further provided in section 4 thereof that all claims not presented as above provided (except unliquidated claims for damages) shall be barred and shall no longer constitute a valid and existing indebtedness of the municipality. That by reason thereof the claim of the plaintiff, if any it had on and prior to May 15th, 1933, has become barred by reason of the provisions of section 4 of chapter 319 of the Laws of Kansas, 1933, and no longer constitutes a valid and existing indebtedness of the defendant, the city of Salina, and that by reason of said law, the defendant the city of Salina is and -will be at all times in the future prohibited from paying such claim or any part thereof, and it is wholly without power to raise any funds or to levy any taxes or to incur any indebtedness for the purpose of paying any part of said obligation which may have existed on or prior to the 15th day of May, 1933; that pursuant to said law and to the notice posted and published as required thereby, this defendant funded in the manner provided by said law all of its obligations and indebtedness then existing as set forth in the statement so posted and published and has no power or authority under the law to pay any other or additional obligation or claim of any kind or nature, existing prior to said date except claims for unliquidated damages and the claim of the plaintiff is forever barred by reason of the provisions of said law.”
Appellant directs our attention to various decisions of this court interpreting the reason and purpose for the enactment of the cash-basis law. It contends the law demands and definitely prescribes a new course of business administration for municipalities. It urges that the filing of a claim is only one of the procedural steps made mandatory by the law. It is insisted the allowance of the claim, and in the event of its disallowance, appeal to the district court, are all essential and necessary steps to a full compliance with the cash-basis law. We are also reminded of our previous decisions holding that a municipal corporation is bound to the same extent as an individual in the matter of filing claims in accordance with the precise provisions of the law. In support of these various contentions we are. referred to State, ex rel., v. Board of Education, 137 Kan. 451, 21 P. 2d 295, Drum v. French, 138 Kan. 277, 25 P. 2d 579; Citizens Bank of Weir v. Cherokee Township, 138 Kan. 282, 25 P. 2d 1019; Woodson County Comm’rs v. City of Yates Center, 139 Kan. 519, 32 P. 2d 209; Levant Consolidated Dist. v. Colby Comm. High School, 140 Kan. 561, 38 P. 2d 684.
These decisions have received our studious review and consideration. It is true it has been definitely held that the provisions of the cash-basis law are mandatory and that full compliance therewith is essential. Careful analysis of those decisions, however, reveals nothing demanding disapproval of the express holding of this court on the precise subject involved in this case, namely, the necessity for filing a claim when an action on such claim was pending on the date the cash-basis law took effect. In the case of State, ex rel., v. Williams, 139 Kan. 599, 32 P. 2d 481, it was held:
“Where a claim of one school district against another is in process of adjudication in an action when the date for filing claims under the cash-basis law took effect, it was not necessary to file a claim under that law.” (Syl. ¶ 3.)
In that case, as in the instant case, the action was pending and the issues were being joined prior to the date the cash-basis law became effective. The judgment must therefore be affirmed. It is so ordered.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal by a divorced husband from various orders and rulings of the trial court involving the sale of his real estate under a general execution issued on behalf of his former wife.
The husband had originally brought an action for divorce. His wife filed an answer and cross petition for divorce and alimony. She obtained the divorce and an award of alimony in the sum of $1,000. A $50 allowance was also made to her attorneys. These amounts were made first and prior liens on specific real estate of the husband. All other real estate of the husband was set aside to him as his sole and separate property, free and clear from any right, title or interest on the part of the wife.
’The defendant in that action then undertook to enforce her lien, and pursuant to order of sale the lots were sold for $750. Defendant was the purchaser. The lots were mortgaged; the costs which defendant would be obliged to pay were $150. She had no money, she could not borrow money, and she could not make her bid good. The sheriff made return of no sale.
The case was here 'on a former appeal. That appeal involved the question of the authority of the trial court to modify the original judgment after the expiration of the term at which it was rendered so as to transfer the alimony lien from one piece of property to another. This authority was denied. (Drury v. Drury, 141 Kan. 511, 41 P. 2d 1032.)
While the above appeal was pending the wife filed praecipe for execution. .The writ was levied upon certain real estate of her former husband, other than that on which her judgment was made a lien, and on property which was specifically set'aside as his sole and separate property, free and clear from any right, title or interest on her part. The former wife, appellee, bought the property at sheriff's sale. Appellant filed motion to set aside the sale on the ground the sale was contrary to the judgment of the trial court, and on the ground the execution and sale were insufficient as a matter of law and contrary to law. The sale was confirmed, other orders were made and appeal perfected from each of them.
Appellant listed eleven specifications of error, but has summarized them under three main questions. Each of them and appellee’s contention in answer thereto have received consideration. One of them was decided in principle on the former appeal. We shall refer to it later. In the view we take of the case a determination of one of the issues is decisive of this appeal. The issue is, Can a party to a divorce action in which alimony and property rights of the parties are finally and permanently adjudicated, sell under execution property which was specifically set aside to one spouse as his sole and separate property, free and clear of any right, title or interest of the other, to satisfy an award of alimony for which a lien was fastened only on other specific property? The answer must be in the negative. To hold otherwise would render the decree a nullity. It would completely destroy that portion of the judgment which sets aside certain property to the husband as' his sole and separate property. To uphold the execution sale would emasculate that portion of the judgment which declared this property to be that of the husband, free and clear from any right, title or interest of the wife. Under provisions of the judgment the award of alimony was impressed with a lien only on certain specified property. Appellee cannot transcend the restrictions and limitations of that judgment. The intent to limit appellee to certain-property is clearly disclosed by the judgment. Had the intent been otherwise a lien could and would have been impressed on other of appellant’s property also.
Upon a dissolution of the marriage relation the court winds up its affairs. It settles the property rights of the parties. (R. S. 60-1511.) It retains jurisdiction to change orders relating to the custody, control and education of children, if such there are. (R. S. 60-1510.) Jurisdiction to modify the judgment as to interest in property is not retained. In commenting on that precise subject, this court, in the case of Conway v. Conway, 130 Kan. 848, 288 Pac. 566, said:
“No such power was granted with respect to settlement of property interests, and the omission is tantamount to express denial.” (p. 851.)
In the early case of Chapman v. Chapman, 48 Kan. 636, 29 Pac. 1071, the principle was stated as follows:
“The effect of the divorce obtained by plaintiff from John B. Chapman was to exclude her from any interest in his property, not specially mentioned, reserved or provided for in the decree of divorce.” (p. 638.)
In the case of Scott v. Scott, 80 Kan. 489, 103 Pac. 1005, the wife obtained a judgment for alimony. The judgment provided, “that she have no right in the real estate set out in the petition.” The wife had an execution issue against his real estate on the theory the alimony judgment constituted a lien on his' property. This court said:
“In the language of the decree above quoted there is nothing to indicate an intention to give the wife a lien upon the husband’s land. The words, ‘that she have no right in the real estate set out in the petition,’ have a contrary tendency.” (p. 491.)
In the same case it was further said:
“The court is thus given absolute control of the matter. It may, within reasonable limits, dispose of the husband’s property as it sees fit. It may take from him anything he has and give it to the wife. And this necessarily implies that it may create a lien for her benefit upon any real estate he possesses. (Blankenship v. Blankenship, 19 Kan. 159.) Obviously it also has the power to free any particular tract from all lien, so as to enable the husband to pass a. title clear of any claim on the part of the wife.” (Italics inserted.) (p. 490.)
In the instant case the property in question was specifically set aside to appellant as his sole and separate property, free and clear of any right, title or interest on the part of appellee.
In the case of Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409, the rule was stated thus:
“The substance of the judgment concerning property rights or permanent alimony cannot be subsequently tampered with under color of such reserved jurisdiction. (Booth v. Booth, 114 Kan. 377, 219 Pac. 513.)” (p. 289.)
Appellee insists a judgment for permanent alimony is a final judgment, enforceable as any other judgment for debt, and therefore any of the husband’s property was subject to sale on execution to satisfy the alimony judgment. The decisions in Bassett v. Waters, 103 Kan. 853, 176 Pac. 663, and Stoner v. Stoner, 134 Kan. 356, 5 P. 2d 847, are relied upon as conclusive authority for the sale under general execution. The facts in neither of them are analogous to those in the instant case, and those decisions are not applicable to the case at bar. In the Bassett case there were no property rights involved in the decree of divorce. The alimony judgment was for a specified total sum, to be paid in installments. This court said:
“Whatever the rule may be in other states, judgments for alimony in the form and character of the one under consideration are final and conclusive, subject to assignment, and, in the absence of a reservation therein, may be enforced as ordinary judgments for debt are enforced.” (Italics inserted.) (p. 855.)
In the instant case the property in question was specifically reserved to the husband, and hence the wife could not enforce her judgment against it as ordinary judgments for debt are enforced.
In the Stoner case it was specifically decreed that the balance of the alimony award in the sum of $1,625 should be a lien on the real estate owned by the husband.
Appellee seriously urges the equity in the property on which she was granted a lien is of insufficient value to enable her to collect her alimony judgment and that such result was never contemplated. That condition is, of course, unfortunate. Neither the trial court nor we can alter or modify the judgment now. If there was error in the original jüdgment the remedy was by appeal. To uphold the execution sale would nullify the express provisions of the judgment which set aside to appellant this particular property, free and clear from any right, title or interest of appellee. The motion to set aside the sale should have been sustained. We need therefore not consider the question of proper period of redemption.
In the judgment of confirmation the trial court modified the original judgment by extending the period during which appellee could remain in possession of the property in question from thirty days, as provided by the original judgment, until so long as the alimony judgment remained unpaid. This modification was decreed after the expiration of the term at which the original judgment was rendered. The judgment modifying the former decree was without authority. (Drury v. Drury, 141 Kan. 511, 41 P. 2d 1032.) It follows appellant is entitled to possession of the property.
The judgment is reversed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by the holder of two promissory notes to recover against the maker. The defense was failure of consideration. The important question was whether the holder was a holder in due course. Trial was by the court, which found for defendant, and rendered judgment accordingly. Plaintiff appeals.
Plaintiff, whose place of business was Kansas City, Mo., dealt in farm electric-lighting plants. R. F. Fitch, whose place of business was Wamego, Pottawatomie county, Kansas, was plaintiffs distributor for territory which included Pottawatomie county. August Uhlrig, who lived on a byroad, R. F. D. No. 5, out of Wamego, gave Fitch an order for a plant, and as part payment executed and delivered to Fitch the notes sued on, which were described in the order. The order and notes were dated November 21,1923. Fitch indorsed the notes and sent them to plaintiff, who received them on November 24, 1923, and credited them on Fitch’s open account. No plant was ever delivered to Uhlrig.
Plaintiff furnished to Fitch blank order forms. The order which Uhlrig signed was addressed to Fitch, and read in part as follows:
“Please enter my order for one Western Electric power and light outfit, to be shipped via U.P.R.R., to August Uhlrig, cpnsignee, at Wamego town, Pottawatomie county, state of Kansas; for which I agree to pay $545, plus forward freight charges. Cash with this order $150. Balance amounting to $395 by two notes, payable at times and in the amounts following: Note for $200 payable August 21, 1924; note for $175 payable November 21, 1924.”
Fitch made two carbon copies of the original order. He gave one copy to Uhlrig, and kept the other. Fitch promptly mailed, the original order, the two notes, and a credit report on Uhlrig’s financial standing, to plaintiff. Fitch testified he believed he did not send a letter to plaintiff with the order and the notes. Plaintiff admitted that when it received the notes it knew they were given for deferred payments on a lighting plant, and that it did not ship a lighting plant to Uhlrig.
It will be observed the order contemplated shipment of the plant to Uhlrig, and contained specific shipping directions. The plant was not to be shipped to Fitch, and by him delivered to Uhlrig. It was to be shipped via U. P. railroad to August Uhlrig, as consignee, at Wamego. This provision of the order could be complied with by nobody except plaintiff. When asked if a plant was shipped to Uhlrig when the notes and order were received, plaintiff’s credit manager and chief witness said:
“I can’t answer the question the way it is put, because it has nothing to do with our business. This is not our order. I can’t tell you anything about it.”
In rebuttal the witness testified as follows:
“When this order or when that blank was received, it was merely additional information to be attached to the credit report and the notes showing that he had an order from his customer.
“Q. Were they treated by you as an order for that equipment? A. This was not considered as an order by us; it is not an order on us to deliver a plant to anybody.
“Q. When that was received at your office, would a plant be shipped out to anybody on an order of that kind? A. We would not.
“Q. How were orders received by you from Fitch? A. Fitch would write them on his own stationery.
“On receiving an order from Fitch for a plant I didn’t know the person to whom it was finally to be delivered unless he instructed us specifically in his order where to deliver it. If he gave us orders we would follow them.”
This testimony was contradicted by Fitch. He testified the method of doing business was, as a rule, that he sent notes with the original orders to the company. With some exceptions, when he sent in an order plaintiff shipped to the person who gave the order. Part of the time plants would come to Fitch, but most of the time to customers. In each instance plaintiff would ship the plant when the order went in. If it was ordered shipped direct to Fitch, it would come to him. If shipment was directed to the purchaser, it went direct to the purchaser. The Uhlrig plant was not ordered shipped to Fitch. When he sent Uhlrig’s notes to the company with the order, he expected the company would ship the plant to Uhlrig. He had no plant to deliver to Uhlrig when the notes were executed, and the company would know he could not deliver a plant on that order.
On December 3, 1923, Fitch sent to plaintiff his own order for a plant to be shipped by freight at once. Plaintiff filled the order on December 15, and this plant was received by Fitch on December 21. Plaintiff’s chief witness endeavored to connect this order for a plant to be shipped to Fitch with the order for the-plant to be shipped to Uhlrig; but Fitch testified the plant ordered in December was not the Uhlrig plant, and he never did order the Uhlrig plant shipped to himself.
The court doubtless regarded plaintiff’s explanation of the function of Uhlrig’s order as disingenuous. If, as a mere matter of additional information, plaintiff’s credit manager read Uhlrig’s order, he knew plaintiff was to perform the executory portion of the order, and ship Uhlrig’s plant to Uhlrig at Wamego. The general finding in favor of Uhlrig ends the dispute regarding the method of doing business, so far as this court is concerned. With the facts thus ascertained, the law is clear'. Plaintiff was under obligations to deliver Uhlrig’s plant via U. P. railroad to Uhlrig at Wamego. This delivery was the consideration for the notes. Plaintiff could not keep the notes, withhold the consideration, and be a holder in due course.
Plaintiff’s major proposition of law is that the mere fact plaintiff knew the notes were taken in payment for a light plant to be delivered by Fitch, did not prevent plaintiff from becoming a holder in due course. Authorities are cited which sustain the proposition. It is not necessary to review them, because they have no bearing on this case.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover upon a drilling contract. S. J. Safford and son were the owners of oil lands and they entered into a contract with I. N. Money and H. E. Musser to drill an oil well on their land. The contract was executed and the well proved to be a producer. A second contract on the same terms was made between the parties to drill another well to a depth of 2,600 feet, certain parts of the casing to be furnished by the drillers and other parts by the Saffords. The drillers were to furnish all equipment, fuel, water and labor necessary to drill the well to the depth of 2,600 feet, or to what is termed the Varner sand, for which they were to receive $11,000, and also to dig a slush pond to take care of all water, and to mud off gas and oil encountered before reaching the Varner sand. There was a provision that if oil was not found at the depth of 2,600 feet, or the Varner sand, the drillers were to drill to an additional depth of 100 feet at the price of $70 per day. They were to furnish the equipment used in the extra drilling, and in case it turned out to bé a dry hole, to pull all the pipes and to plug the well.' Another stipulation was that when the casing was set on top of the 2,600 foot, or Varner sand, and the well found to be a producer of oil of commercial value, the drillers were to tube and rod the well, which was to be included in the contract price, and that during the drilling they were to keep and furnish to Safford an accurate log of the well. The well was drilled, but full payment was not made, and this action was brought to recover the balance due under the contract.
Plaintiffs alleged that they drilled the well to a depth of 2,602 feet in good workmanlike manner and at that depth the well was in good condition and free from water, and that upon the request of defendants they afterwards drilled to a lower depth and the well was accepted; that they continued to drill under the supervision of defendants for three and one-half days. They alleged that, on September 1, 1925, it was drilled in as a producing well, when it was taken over by the defendants. It was further alleged that $5,000 of the contract price had been paid, leaving due $6,000 more, for drilling to a depth of 2,600 feet, and $245 for three and one-half days’ work done while working for the defendants. They asked judgment for $6,245.
The defendants denied that the well had been drilled in a workmanlike manner, alleged that the casing was set at a depth of 2,552 feet, leaving an uncased hole between the depth of 2,552 feet and the 2,600 feet through which water entered the well, that in placing a casing in the well joints were bent so that it was necessary to swage out the joints in order that drilling tools could be gotten through, and that this operation weakened and damaged the joints and thus permitted water to escape into the well from outside of the casing. That by reason of the failure of plaintiffs to properly complete the well, the defendants were obliged to pay out large sums of money' in an effort to shut off the water. They asked damages for nonperformance of the contract and for the material and labor furnished by defendant to protect the well from incoming water. The plaintiffs replied denying averments of nonperformance and alleging that the defendants accepted the well as a complete fulfillment of the contract and proceeded with drilling under their own supervision.
The only matters argued were as to questions of fact relating to the breach or fulfillment of the contract and whether there was an acceptance of the well by the defendants when it was drilled to a depth of 2,600 feet or to the Varner sand. It appears that when that depth was reached there was a slight showing of oil and there was much testimony to the effect that the well was free from water at the time and in good condition. In fact it is shown that water had to be poured into the well in order that further drilling might be done. Sand, it appears, was reached at about 2,557 feet and the lower casing was set at that point, and the drilling was continued down to the depth of 2,602 feet. The Saffords, it appears, were present at the well much of the time when the well was being completed and prior to the taking over of the contract, and they had supervision of the work while the drilling was continued beyond the depth of 2,602 feet. They carried down the well about 20 feet deeper and found oil, and also water began to come into it. Whether the water came from the bottom or from above because of improper work done by the plaintiffs before they reached the depth of 2,602 feet and before it was taken over by the defendants was an issue in the case. The following special findings of fact were returned by the jury on the material issues in the case:
“Q. 1. Do you find that plaintiffs drilled the well to a depth of 2,602 feet? A. Yes.
“Q. 2. Do you find that Safford and son took over the well on August 31, 1925, at a depth of 2,602 feet? A. Yes.
“Q. 3. If you answer the foregoing question in the affirmative, state if Safford and son continued drilling thereafter, under their own direction and supervision? A. Yes.
“Q. 4. Do you find that the well was in good condition and free from water at a depth of 2,602 feet? A. Yes.
‘'Q. 5. Do you find that Money and Musser set the 6§-inch casing at the direction of Safford and son? A. Cannot answer (lack of evidence).
"Q. 6. Do you find that the water complained of was ‘bottom of the hole’ water? A. Yes.
“Q. 7. Do you find that the water complained of in said well was the result of drilling done by Safford and son after the 2,602-foot depth had been reached? A. Yes.”
The court also submitted to the jury other questions which were answered as follows:
“Q. 1. At the time the plaintiffs claim they ceased work on the well about August 31, 1925, was the 6-|-inch casing set in a good and workmanlike manner. A. Yes.
“Q. 2. At the time the plaintiffs claim they ceased work on the well about August 31, 1925, was the 6|-inch casing so set as to keep the water out of the well? A. Yes.
“Q. 3. At the time the well reached a depth of approximately 2,602 feet did the defendants accept the well as having been completed by the plaintiffs in accordance with the contract, or tp the satisfaction of the defendant? A. Yes.
“Q. 4. At or before the defendants took charge of the well and began directing the work to be done thereon, did they make any claim to the plaintiffs that the plaintiffs had not performed their contract? A. No.
“Q. 5. What sum, if anything, do you find that the plaintiffs are entitled to recover for work done after the well had been drilled to 2,600 feet? A. $245.
“Q. 6. If you find the defendants are entitled to recover damages, then state the total sum you may find them to have reasonably and necessarily expended in. work on said well after it reached 2,600 feet and in an effort to shut off the water. A. $542.29.
“Q. 7. If you find the defendants are entitled to recover damages, then state how much you have deducted for their damages on account of the present value of the 5%6-inch casing and all the other tools, equipment and fittings that they may now have on hand and for which you allowed them a charge against the plaintiffs. A. None.”
Besides the special findings the jury returned a verdict finding for the plaintiffs and assessing the amount of their recovery at $5,702.71 with interest thereon.
As stated, only questions of fact are presented on this appeal. Much testimony was produced relating to the performance of the contract by plaintiffs, and also as to the alleged acceptance of the work as complete by the defendants. A reading of the testimony satisfies us that there was substantial performance and, more than that, there was evidence tending to show an acceptance by the defendants as a fulfillment of the contract. The evidence is sufficient to show that the water which entered and injuriously affected the well did not come from the upper part of it which had been drilled while plaintiffs were in control, but rather that it did come from the bottom while the defendants were in control of the well, and when they probably drilled too deep into a stratum of water. It is contended that under the evidence the matter of acceptance of the well by the defendants should not have been submitted to the jury. Acceptance was definitely pleaded and there was competent testimony tending to show the turning over of the well to and acceptance by the defendants with an understanding of conditions. Defendants or at least one of them, Gene Safford, was frequently at the well during the drilling and completion of it. He was experienced in the matter of drilling of other wells on the same land and cannot well claim inexperience or lack of judgment unless it was in permitting the drillers to go too far through the oil sand, to a water stratum, while he was in charge 'of the drilling. He admitted that he was in charge of the drilling at that time and gave orders to the drillers. During his supervision a good showing of oil was obtained at about 2,617 feet, but he kept on drilling until they reached a depth of 2,621 feet, and there was testimony that the well was dry and in good shape when he took charge and that he told one of the plaintiffs that “we have got a dandy well out there.” Besides the well-established fact that there was an acceptance of the work of plaintiffs, there is abundant evidence which it is not necessary to set out to show a substantial compliance 'with the terms of the contract. The weight and force of the evidence were questions for the jury as shown by many authorities. Their findings and verdict settled the questions of fact and nothing is left for this court to do but to affirm the judgment. It is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action for damages on account of injuries to plaintiff and his car resulting from an auto collision at the intersection of two streets in the city of Pittsburg. The plaintiff recovered, and defendant appeals, urging the following four errors in particular: (1) the giving of an oral instruction and statement to the jury after it had been deliberating for some hours and the court learned that it stood eleven to one; (2) the including of the pleadings in full in the regular instructions given the jury; (3) the refusal to return the jury to make a more specific answer to special question No. 6; and (4) the overruling of the motion of defendant for a new trial.
It appears from the journal entry that the jury had been deliberating upon its verdict from 1:20 p. m. until 4:45 p. m., when it was brought into the courtroom, and the court gave it a certain oral instruction, after which it retired to its jury room until 5:20 p. m. when it returned its verdict. The oral instruction or statement given to the jury by the court after learning how it was divided is as follows:
“Well, you folks, of course, realize that this case has taken part of two days to try. Now, this one juror — I don’t know who it is, and I hope it isn’t one of those that I picked, because that is a very sad reflection on me, because I am supposed to use good judgment in selecting jurors, and the fact that one is holding out is one that I selected, I take it as a personal reflection. Stubbornness has no place whatever in the jury room, and if you eleven agree in 15 minutes, there is certainly something wrong with this one juror. I don’t want to try this case over again, and it is 10 minutes to 5. I don’t see why this one juror can’t be reasonable, and I am going to ask you to go back in your jury room and please try to reach a verdict before 5 o’clock.”
The defendant immediately after the giving of this instruction made the following potion:
“Now, at this time the defendant asks that the jury be discharged from further consideration on this case and that a mistrial be declared by the court.”
In the recent case of Neely v. Travelers Ins. Co., 141 Kan. 691, 42 P. 2d 957, the giving of a certain lecture or instruction to the jury during its deliberations on the question of a hung jury and its duty to get together was held to be “insufferably coercive” and ground for reversal. The Kansas decisions pro and con were cited and considered in that exhaustive opinion and no good purpose would be served at this early date to reconsider them except to apply them to the language used in the oral instruction or statement above quoted, which we think goes as far out of the realm of the court’s duties and into that belonging to the jury as did the instruction in the Neely case.
It is said in 64 C. J. 1046:
“But while the jury may be urged to agree, it is now well settled that they must be left free to act without any real or seeming coercion on the part of the court, or to feel that should they continue to disagree, they are not to be exposed to unreasonable inconvenience nor to receive the animadversion of the court. . . .”
It is insisted that no objection was made by the defendant to the instruction or statement so as to give the court an opportunity to correct the error, if .any, in making the statement, and that the motion made by the defendant to discharge the jury and declare a mistrial was not sufficient to direct the attention of the trial court to any specific mistake or error that had been made, citing Merrick v. Missouri-K.-T. Rld. Co., 141 Kan. 591, 42 P. 2d 950; Sawtelle v. Cosden Oil & Gas Co., 128 Kan. 220, 277 Pac. 45; Clark v. Linley Motor Co., 126 Kan. 419, 268 Pac. 860; and Isnard v. Edgar, 81 Kan. 765, 106 Pac. 1003. In these cases it was held that it was the duty of counsel to make the objection clear to the court, instead of obscurely hinting at it. Some of these rulings were where a general objection was made to each, every and all the instructions given, and the court could not well know to which instruction or proposition involved the objection was directed. Only one thing could possibly be the ground of the objection to the oral instruction here given, and that was the urging of the court for the jury to get together and particularly criticising the one juror that was standing out and not agreeing with the other eleven. The making of the motion to discharge the jury and declare a mistrial was unquestionably because of these remarks which were not along different lines or on different subjects but all on one topic, which remarks were to the defendant so objectionable as to prompt the making of a motion for the discharge of the jury and a declaration of mistrial. This, we think, was not at all like an obscure hint but a clear and simple objection to the remarks that had just been made to the jury. We think the instruction or statement given to the jury during its deliberations was clearly coercive, and so erroneous as to make a new trial necessary.
Appellee insists that the language of the oral instruction, however objectionable, would not properly bring the matter under the provisions of R. S. 60-2914, authorizing the discharge of the jury. We think it is unnecessary to determine this point, as the instruction was plainly erroneous and the motion for discharge of the jury and to declare a mistrial was amply sufficient to meet all the requirements of an objection by calling the attention of the court to the objectionable matter, and could have resulted in the correction or withdrawal of the instruction instead of the discharge of the jury. Appellee, concerning the same matter, asserts that no intimation was made that defendant was prejudiced thereby, nor is the matter asserted as error in the motion for a new trial, citing the Sawtelle case, supra.
The seventh cause of the motion for a new trial was “erroneous instructions given by the court to the jury,” which was under the heading of causes which affect materially the substantial rights of the defendant. R. S. 60-3001, giving the definition and grounds for a motion for a new trial, names as the second ground, “erroneous rulings or instructions of the court.” So the motion was following generally the language of the statute, and the journal entry states that the motion was argued by attorneys on both sides. This is sufficient to bring the matter of erroneous instructions to the attention of the court. (Coal Co. v. Nicholson, 93 Kan. 638, 145 Pac. 571.)
The second assignment of error is the including of the pleadings in full in the instructions. As set out in the printed abstract they cover ten pages. It was said in Stevens v. Maxwell, 65 Kan. 835, 70 Pac. 873:
“It is the province of the court to determine and define the issues in the case, and the duty of the jury to accept the interpretation of the pleadings made by the court and to following its directions.” (Syl. ¶ 1.)
In the case of Williamson v. Oil and Gas Co., 94 Kan. 238, 146 Pac. 316, it was held:
“It is not error to incorporate into the court’s instructions the plain and simple language of the pleadings when the issues are fairly presented to the jury by the instructions as a whole.” (Syl. ¶ 1.)
In the case of Kamm v. Sloan, 72 Kan. 459, 83 Pac. 1103, it was held:
“A trial court should clearly state to the juiy the issues to be tried by them. It is not good practice to incorporate the pleadings into the instructions. Where, however, the pleadings are made up of a short petition, alleging a contract, a breach, and resulting damages, and an answer which is a general denial, it is not prejudicial error for the court, after having plainly stated the issues, to incorporate the petition into the instructions.” ,
In the recent case of Balano v. Nafziger, 137 Kan. 513, 21 P. 2d 896, which was an automobile collision case, it was said that it was not error for the trial court, in outlining in the instructions to the jury the nature of the plaintiff’s cause of action, to copy the several allegations of negligence contained in the petition that are supported by some evidence, provided the allegations are in plain and simple language capable of being easily and readily understood.
There can be no question as to the better practice being not to include the pleadings in full in the instructions.
The third assignment of error is the refusal of the trial court to return the jury to make a more specific answer to special question No. 6. The answer was definite as to direction but not as to distance, and yet the question was not definite and certain that distance as well as direction was desired. We find no error in this assignment.
Of course, under the conclusion reached above as to the giving of the oral instruction to the jury concerning its duty to get together, we think the motion for new trial should have been sustained.
The judgment is reversed and the cause is remanded with directions to sustain the motion of defendant for a new trial.
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by defendant from an order overruling a motion for judgment on special findings and rendering a judgment for plaintiff on the general verdict.
The defendant coal company commenced the operation of a strip mine in the fall of 1925 near a farm of about 100 acres belonging to the plaintiff. On March 1, 1926, the plaintiff commenced this action against the defendant for $3,000 damages to his farm, alleging in substance that the defendant, in the operation of its mine, caused the drainage of mineral water from its mine to flow upon the land of the plaintiff; that the water was harmful and poisonous to the stock, to the land and to the rain and pond water; and further—
“That as a result of the defendant discharging the mine water upon the land of the plaintiff, as above alleged, the meadows and farm land of the plaintiff is destroyed and rendered sterile and useless; that a ravine running across plaintiff’s said land is made wet and soggy, so as to prevent the plaintiff from going from one side of the farm to the other for the purpose of carrying on farming and looking after his said farm; that the water in said ravine is poisonous and polluted, preventing the plaintiff from' maintaining or building a necessary pond to water plaintiff's stock.”
The issues were joined by answer in the nature of a general denial, and the cause was tried to a jury, which rendered the following general verdict and answers to questions propounded by the defendant:
“We, the jury impaneled and sworn to try the issues herein joined, find in favor of the plaintiff and against the defendant; and we assess as the amount of plaintiff’s recovery herein, the sum of $1,000.”
“1. Did the water from defendant’s strip mine flow upon and through plaintiff's land through a natural watercourse? A. No.
“2. If you answer the above question in the affirmative, then state how long said watercourse had existed. A. -.
“3. What do you find was the fair market value of plaintiff’s premises per acre, in 1925? A. $40 per acre.
“4. What do you find was the fair market value of plaintiff’s premises in March, 1926, at the time this action was commenced? A. $40 per acre.
“5. If you allow plaintiff damages, state the amount and itemize same. A. Pasture, $250; stock pond, $250; inconvenience, $500; $1,000.”
The defendant filed a motion for judgment on the special findings of the jury and also' a motion for new trial, but subsequently withdrew the latter. The court overruled the motion for judgment on the special findings and rendered judgment for the plaintiff upon the general verdict for $1,000.
It is strenuously argued by the appellant that this case should •come under the general rule that when the special findings of fact .are inconsistent with the general verdict the special findings should control, and judgment should have been rendered for the defendant notwithstanding the general verdict. This is the admitted rule provided the special findings are inconsistent with the general verdict; and that is the only question here for consideration. The answers are somewhat confusing and one of the questions is very indefinite as to time.
The case was tried upon the theory that the damages to which the plaintiff was entitled, if any, were for the permanent injury to the land, and the measure of such damages should be the difference, if any, in the value of the land immediately prior to such injury and its value after the injury. Paragraph 7 of the instructions given by the court is pertinent to our inquiry, and is as follows :
“If you find for the plaintiff in this case, then the measure of his recovery would be the diminution, if any, in the fair market value of the farm in question, which is the direct and proximate result of the pumping and draining of poisonous or alkali water onto said land and property, if such was done; that is, the difference, if any, in the fair market value of the farm in its condition immediately prior to said alleged injury and in its condition thereafter, resulting directly and proximately from such, pumping and draining of said water. And in determining the amount, if any you allow, you should take into consideration the character of the land, the use made of it, the quantity of land injured, if any, the improvements on said land and the injury thereto, if, any, and also, whether any of said injuries are permanent or only temporary, and' all facts and circumstances in evidence bearing upon such question.”
The plaintiff fixes the time when the defendant began pumping water over his land as “along in the fall of 1925,” “four, five or six months [before March 1, 1926] that I know of.” The only witness who gave evidence as to the value of the land before and after the injury complained of gave it as $70 per acre in the year 1925 and $40 per acre on March 1,1926. The only evidence we have as to when the alleged injury began is that of the plaintiff to the effect that it was in the fall of 1925, four, five or six months before March 1,1926. If question No. 3 had been as definite as to time as No. 4 is, the reasonable answer to it might have obviated much of the confusion confronting us here. Why should it cover the whole of the year of 1925? If there was any injury to the land it unmistakably began in the fall of that year. Four, five or six months before March 1, 1926, would be the first of September, October or November, 1925. Question No. 3 asks what was the value of this land in 1925. One witness said it was worth $70 per acre sometime in 1925. The jury says it was worth $40 per acre sometime in 1925. Under the general verdict and the instructions of the court the jury apparently concluded that it was worth $10 per acre more sometime in 1925 than it was on March 1,1926.
Many cases and authorities are cited to show that the meaning of the word “in” as used in question No. 3 is equivalent to “during,” “throughout,” “within the limits or duration of.” “In the month of May” was held to be “up till the last hour of May 31.” There is nothing in any of these definitions to require the same condition to exist unchanged during the whole year. If wheat was said to have been worth one dollar a bushel in 1925 no one would conclude from such statement that there had been no change in the price during the entire year. It is perfectly reasonable to apply this answer to question No. 3 to the latter part of the year, which harmonizes the answer with the necessary element in the generalsverdict that the land was worth $10 per acre more at some other time in 1925, and is not inconsistent with the general verdict or the answer to No. 4.
“Where the findings will fairly admit of an interpretation which will make them harmonious with one another and with the general verdict, that interpretation should be given, rather than one which will overturn and destroy both the findings and the verdict.” (27 R. C. L. 887.)
“Obscurity or slight inconsistency in special findings does not necessarily require the overthrow of a verdict. All findings are to be considered together, and if one interpretation points to inconsistency with the verdict and they are fairly susceptible of another which harmonizes with the verdict, the latter should be adopted.” (Brown v. Utilities Co., 110 Kan. 283, syl. ¶ 3, 203 Pac. 907.)
“Where a question of inconsistency arises between findings made in answer to special questions and a general verdict nothing will be presumed in aid of special findings, while every reasonable presumption will be indulged in favor of the general verdict.” (Morrow v. Bonebrake, 84 Kan. 724, syl. ¶ 3, 115 Pac. 585.)
“It is error for a court to set aside a general verdict and enter judgment on the special findings, unless the special findings compel such action. Where it is possible to harmonize the special findings with the general verdict the latter is controlling.” (Osburn v. Railway Co., 75 Kan. 746, syl., 90 Pac. 289. See, also, Bevens v. Smith, 42 Kan. 250, 21 Pac. 1064; Jackson v. Linnington, 47 Kan. 396, 28 Pac. 173; Railway Co. v. Frey, 66 Kan. 296, 71 Pac. 525; Seeds v. Bridge Co., 68 Kan. 522, 75 Pac. 480; Samson v. Zimmerman, 73 Kan. 654, 85 Pac. 757; Moore v. Connelly, 119 Kan. 35, 237 Pac. 900.)
Appellant insists that the answers to question No. 5 are in conflict with the instructions given by the court as to the measure of damages and not in harmony with the allegations of the petition. It is argued that the answers show that instead of accepting the directions of the court for estimating the damages the jury adopted another and different rule for such determination, based upon injury to pasture, injury to stock pond, and for inconvenience, and that 'the term “pasture” is not mentioned in the petition. There is no conflict as to what the true measure of damages is and ought to be. The court gave it in the seventh instruction, above quoted. The jury is asked in this question to state the amount of damages and itemize the same. Strictly speaking, there are no items to a difference in value of property before and after an injury. The difference is not composed of items; nor is it the total of several items. It is simply a difference between two values of the property, one before the injury and the other after the injury. The items given in attempting to answer the question could very naturally be the several things the jury took into consideration in arriving at this difference of value of the land before and after the injury. The court instructed them to “take into consideration the character of the land, the use made of it, the quantity of land injured, . . . and all facts and circumstances in evidence bearing upon such question.” Under the head of the character of the land and the use made of it there could very properly be considered pasture land; and the use made of a part of the land could be for a stock pond. The latter would also be an improvement, which the court (directed the jury to consider; and among the circumstances would be the inconvenience. All these items, so called, are definitely mentioned in the part of the petition above quoted, except the word “pasture” is not there used, but the injured land is described therein as “meadows and farm land.” Webster defines a pasture as “grass land for cattle.” The first definition given by the same author for meadow is “grass land” — in common parlance not a great deal of difference. The jury undoubtedly intended to convey by this answer the conclusion that the plaintiff’s grass land had been injured to a certain extent.
The attempt to itemize the amount of damage by listing things properly taken into consideration under the instructions of the court is not necessarily in violation and disregard of the rule prescribed for the measure of damages, and when items are in general accord with the items of alleged injuries and facts and things directed to be considered they are not inconsistent with the general verdict. This was the view of the law recently expressed in the case of In re Sidles, 125 Kan. 1, 262 Pac. 550, where, in answer to a number of questions, the jury indicated the amounts allowed by them for cherry, apple and plum trees lost in rebuilding the barn and stock lots; also the compensation for moving a house and expenses incident thereto, as well as a number of other items. The jury had been instructed, as in this case, that the measure of damages was the difference in the value of the land before and after the injury. In the opinion it was said:
“The items enumerated do not make up the claimant’s entire damages found by the jury — $3,011.94. So far as we are able to ascertain, the items only assisted the jury in arriving at the total amount of damages allowed. The damage allowed for the value of the trees was not a distinct and independent injury to the land. None of the items was considered separately and apart from the value of the land, but they were considered as a part thereof in ascertaining the ultimate damage.” (p. 2.)
In an earlier case, where the same question was raised upon the introduction of evidence, it was held on appeal:
“In determining the damages to which he is entitled, consideration may be given to the character of the improvement and its effect upon the part of the tract not taken, including interference with access to the tract and the use to which it is devoted or reasonably adapted.” (Smith v. Wyandotte County, 113 Kan. 244, syl., 214 Pac. 104.)
In line with the authorities above cited we conclude that the answers to the special questions, when given a reasonable and natural interpretation, are not inconsistent or out of harmony with the general verdict, and we find no error in the overruling of the motion of the appellant for judgment in its favor on the special findings.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was a proceeding in quo warranto brought by the state on the relation of the Hon. W. A. Smith, as attorney-general, against the city of Coffeyville, questioning the authority of the city to exercise jurisdiction and control over adjacent territory which the city had undertaken to annex by an ordinance.
The petition alleged the enactment of the ordinance to annex the territory, describing it as the “Northwest quarter of the northwest quarter of section thirty-six in township thirty-four south of range sixteen east.” It was specifically alleged that the tract of land described had not by any of the proprietors or owners thereof, nor with the consent of any of them, been subdivided into blocks and lots with designated streets or alleys extending through the tract or any part thereof. It was further alleged that the land in area exceeds twenty acres and was not then lying within or mainly within the city. It was also alleged that the attempted annexation does not properly describe the territory to be annexed, but did prescribe as follows:
“Section 1. That the corporate limits of the city of Coffeyville, Kansas, be and hereby are extended to include the following tracts of land to wit:
“Beginning on the west side of Walnut street at the center line of First street; thence west along the center line of First street to the center line of Willow street; thence south along the west line of Willow street to the south line of North street, otherwise known and platted as subdivision of the NW. Vi of the NW. Vi of section 36, T. 34 S., R. 16 E.”
The prayer of the petition is that the plaintiff be ousted from exercising any authority or control over the tract of land described.
An answer was filed by defendant, which refers to the description as given in the plaintiff’s petition and alleged that it acted under and within R. S. 13-1601, and chapter 118 of the Laws of 1927, and that it is legal in that the land described in the petition was subdivided into small parcels and that it is known as a subdivision of the northwest quarter of the northwest quarter of section thirty-six, township thirty-four, range sixteen, east, which is of record in the office of the register of deeds. It is then alleged that the subdivision mentioned by plaintiff is so situated that on or before September 13, 1927, the same was adjacent to the city of Coffeyville, and that more than two-thirds of two of the lines or boundaries of this tract lie upon and touch the boundary line of the city of Coffey-ville. There is an averment that the annexation ordinance has been amended so as to correct an error in the manner in which lines follow certain streets, but was not amended as to the subdivision previously mentioned nor as to its inclusion into the city of Coffeyville. The ordinance annexing the tract is not set out in full. A motion was made to strike the answer from the files which the parties have treated as a demurrer, and the defendant contends that when the demurrer is carried forward to the petition it must be held that the petition does not state a cause of action. No motion was made to make the petition more definite and certain. The court held the petition to be sufficient and struck the answer from the files.
An examination of the challenged petition makes it clear that the action of the city in the proposed annexation was not a compliance with the statute under which it was attempted. (Laws 1927, ch. 118.) That statute provides that land adjoining or touching the limits of a city which has been subdivided into blocks and lots may be annexed. It further provides that an unplatted piece of land lying within or mainly within the city may also be annexed, and further that an unplatted tract not exceeding twenty acres which is so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary line, may be taken into the city. There is another provision that in adding territory in a city, if it becomes necessary to make the boundary straight or harmonious, a portion or a piece of land may be taken into such city if such portion taken in does not exceed twenty acres. The proposed annexation does not conform to any of the four authorized methods'. The petition shows affirmatively that the land was not platted into blocks and lots. There was no denial of this averment of the petition and the allegation in the answer that it had been subdivided into small parcels does not answer plaintiff’s allegation that it had not been divided into blocks and lots. Nor was it alleged by defendants that any streets or alleys had been designated or dedicated through the tract, the necessary accompaniment of a platted division into blocks and lots. Rhe petition further shows that the tract does not lie within or mainly within the city, and no claim is made under this feature of annexation. It further shows that the area of the tract exceeds twenty acres. Rhe tract as described by metes and bounds discloses that it contains forty acres. Two-thirds of its boundary line may touch the boundary line of the city, but lands exceeding twenty acres in area cannot be taken into the city under this provision, however much of its boundary line may touch the boundary of the city. (State, ex rel., v. City of Wichita, 88 Kan. 375, 128 Pac. 369.) There is nothing obscure or complicated in the requirements of the statute and no reason is seen why its provisions may not be understood and followed.
There was no error in the rulings of the district court, and its judgment is therefore affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for malpractice. A demurrer to plaintiff’s evidence was sustained. He filed a motion for a new trial, which was overruled, and judgment was rendered for defendant. Plaintiff has appealed.
Plaintiff’s evidence is, in substance, as follows: About six o’clock on the evening of February 2, 1925, plaintiff, a workman, sustained an injury in which his right arm was broken below the elbow. Defendant, a physician and surgeon, was called to treat the injury. He took plaintiff to his office, made X-ray pictures of the injured arm, examined it before a fluoroscope and by feeling of it and manipulating it, bandaged the arm in] splints, told plaintiff one of the bones was broken, that it was a bad break close to the elbow, and said:
“If I can just hold it until it begins to knit, it will be a good arm; otherwise if I am unable to hold it, I will have to take you to the hospital- — it's a hospital job. If I can just hold it it will be all right.”
He told plaintiff to come back the next day. Plaintiff went to his office the next afternoon. Defendant again examined the arm before the fluoroscope and bandaged it in splints.- Plaintiff complained of severe pain in his elbow and shoulder. These were examined by defendant, who stated there was nothing wrong there. Repeatedly throughout the treatment plaintiff complained of severe pain in the elbow, and defendant each time informed him there was nothing wrong with it. At defendant’s direction plaintiff visited him at his office each day for perhaps two weeks, and after that every second or third day until March 13. A part of this time the arm was bandaged in splints and later in a plaster of Paris cast. Defendant took no X-ray pictures after the day of the injury and did not examine the arm before a fluoroscope after the second visit. On March 13 defendant removed the bandage and told plaintiff to use the arm. At that time the arm was about two inches shorter than the other arm, and there was quite a lump on the arm near the break. Defendant said that would all disappear and would not be noticed. “You would hardly notice it yourself if you didn’t know it.” He also stated that both bones had been broken. He discharged plaintiff as a patient at that time. On March 17 plaintiff called at defendant’s office, but defendant was not in, and plaintiff did not call again. Plaintiff did some light work; he could lift straight up with this arm, but if he held it horizontally it fell with its own weight. Plaintiff had sustained no later injury to his arm. At the time of the trial it was in substantially the same condition that it was in when defendant discharged him as a patient. On direct examination the court sustained an objection to a question framed to elicit this, but from answers to; other questions, and answers to questions on cross-examination, this was before the court. On July 10 plaintiff had X-ray pictures made of his arm by Sister Beatrice, but on objection by defendant these were excluded from the evidence. Objections by defendant were sustained to several questions propounded to plaintiff on what appeared to be material points. In preparation for the trial of the case in May, 1927, the court appointed two physicians to examine plaintiff’s arm. One of these, Doctor Lawrence, was called as a witness by plaintiff. He testified that he was a physician and surgeon, and under an appointment of the court had made several X-ray pictures of plaintiff’s injured arm, and had also made an examination. He identified the X-ray pictures taken by him, but on objection by defendant they were excluded from the evidence. He also testified that he had made an examination of the arm at the time he took the pictures, but on being asked to state what that examination was defendant’s objection was sustained. A hypothetical question was then propounded to him based on the evidence as plaintiff understood it to be. Defendant’s objection to this was sustained.
Appellant complains of the rulings of the court excluding the evidence as above stated. None of this evidence was offered by affidavit, deposition or testimony of the witnesses on the hearing of the motion for a new trial, as required by R. S. 60-3004, but the rule of this statute, which requires excluded evidence to be offered on the hearing of the motion for a new trial, does not apply to documentary evidence. (Winkler v. Korzuszkiewicz, 118 Kan. 470, 475, 235 Pac. 1054, and cases there cited.) The rule, therefore, does not apply to the X-ray pictures offered. These pictures clearly disclose that there was a dislocation of the radius at the elbow. They also disclose that the ends of the bone at the break in the ulna were not in apposition, but overlapped, and that the bone had not knit at the place of this break, but separated when the arm was placed in certain positions. These X-ray pictures were material evidence in the case. It was error to exclude them.
The chief question before us is whether there was enough evidence to go to the jury. This question must be answered in the affirmative. The evidence quite clearly shows that serious dislocation of the radius bone at the elbow was never set or treated by defendant. And the evidence almost as clearly shows that defendant discharged plaintiff as a patient at a time when the broken ulna had not knit, and the broken ends were overlapped and separated.
The rules respecting the liability of physicians in malpractice cases have been frequently stated. Many of them are collected in James v. Grigsby, 114 Kan. 627, 631, 632, 220 Pac. 267, where the earlier Kansas cases by this court are cited. Later cases are: Saylor v. Brady, 114 Kan. 764, 220 Pac. 1047; Hershey v. Peake, 115 Kan. 562, 223 Pac. 1113; Russell v. Newman, 116 Kan. 268, 226 Pac. 752; Parr v. Young, 121 Kan. 47, 246 Pac. 181; Blex v. Flack, 121 Kan. 431, 247 Pac. 640; Updegraff v. Gage-Hall Clinic, 125 Kan. 518, 264 Pac. 1078.
Appellee argues that the evidence on behalf of plaintiff, considered as favorably to him as can reasonably be done, shows only a bad result, and that defendant is not liable where nothing more is shown. It is true that a bad result, standing alone, does not establish liability. But it is also true, as in all cases predicated on negligence, that there can be no recovery unless there is a bad result, or injurious consequences. So, when plaintiff showed a bad result he established at least a material part of his case. And a result may be so bad as to be, in and of itself, evidence of negligence (George v. Shannon, 92 Kan. 801, 807, 142 Pac. 967; Shockley v. Tucker, 127 Ia. 456; Evans v. Clapp, 231 S. W. 79, 86 [Mo. App.]; Loveland v. Nelson, 235 Mich. 623) sufficient to go to the jury if unexplained, or hot contradicted.
Appellee points out that there was no medical evidence as to what was the proper treatment of plaintiff’s arm, and that no witness schooled in the science of medicine testified that defendant was negligent in his treatment of plaintiff. The general rule pertaining to the necessity of medical evidence of negligence is stated in James v. Grigsby, supra, as follows:
“What is the proper treatment to be used in a particular case is a medical question to be testified to by physicians as expert witnesses; laymen, even jurors and courts, are not permitted to say what is the proper treatment for a disease or how a specific surgical operation should be handled (citing cases).” (p. 632.)
This rule can be applied, of course, only to those matters clearly within the domain of medical science. It is not a judicial determination that the members of the medical profession have a monopoly on common sense. Matters within the common knowledge of mankind may be testified to by anyone familiar with the facts. In Pettigrew v. Lewis, 46 Kan. 78, 81, it was said: “Cases may arise where there is such gross negligence and want of skill in performing an operation as to dispense with the testimony of professional witnesses.” See cases last above cited; also, Wharton v. Warner, 75 Wash. 470; Walker Hospital v. Pulley, 74 Ind. App. 659; Eichholz v. Poe, 217 S. W. 282 (Mo.); 21 R. C. L. 388.
That it was negligent not to set or treat a badly dislocated elbow need not be established by a medical witness; it is a matter of common knowledge that such an injury needs treatment. The evidence here is that it received none. Neither does it require medical evidence to justify a jury in finding negligence in dismissing the patient as practically well when the forearm was about two inches shorter than normal and when the arm was held in a horizontal position the end would drop with its own weight. Any layman would know that condition could not exist unless the ends.of the bone where it was broken were overlapped (or a section of the bone had been actually removed from the arm) and had not grown together to make it rigid.
The judgment of the court below is reversed with directions to grant a new trial.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a wife to enjoin sale of her land on execution against her husband. Plaintiff prevailed, and defendant appeals. The question is whether there was evidence to sustain the judgment.
In 1913 the plaintiff, I. M. McGinnis, was owner of the land in controversy. She and her husband, W. F. McGinnis, had occupied it as a homestead since 1906. In 1913 a tax deed was taken out by E. D. Stratford, who.deeded to the Citizens State Bank of El Dorado in June, 1915. On March 14, 1916, the bank quitclaimed to W. F. McGinnis. He testified that as agent for his wife he transacted business concerning various pieces of property, the legal title to which was in his wife; but the bank’s quitclaim deed was not made to him under his direction, and he did not know the deed named him as grantee until he received it. There was no evidence of gift to him by his wife, or of purchase for a valuable consideration from his wife, and prima facie the transaction with the bank constituted a redemption from tax sale.
In March, 1924, a tax deed of the tract was issued to R. H. Hazlett, who in 1925 quitclaimed to W. F. McGinnis and I. M. McGinnis. Hazlett was connected with the El Dorado National Bank, and Mrs. McGinnis and her husband were indebted to Haz lett, or to the bank. Neither Hazlett nor the bank had a lien on the land, but McGinnis could not pay the taxes, and he requested Hazlett to take out a tax deed. How it came about that Hazlett’s deed named husband and wife as grantees is not disclosed. The deed was not delivered directly to McGinnis by Hazlett, but came into the possession of McGinnis, who recorded it. McGinnis did not know whether thé indebtedness to Hazlett or the bank was paid at the time the quitclaim deed was delivered, and he testified he handled the transaction as he did other transactions involving property in his wife’s name. It is familiar law that a husband may not divest his wife of title to her land by taking a tax deed to himself. If he occupies the additional confidential relation of financial agent of his wife, he may not have the land purchased at tax sale for protection, and then take title to himself by deed from the purchaser.
It is contended McGinnis had full charge of the property and business affairs of his wife as her agent; he did take title to the tract in controversy, once the entire interest, and afterward a half interest; there is no presumption he acted without authority, and there is no evidence to indicate repudiation of his conduct by his principal. The answer to the contention is this: There is no evidence'that title was originally taken in the name of the wife to defraud her husband’s creditors, or for other wrongful purpose. Her ownership having been established, it presumptively continued unless transmitted to her husband by her act, either by gift or by contract for value. There is no presumption of authority on the part of an agent to manage and control, to give or to sell his principal’s property to himself. Such a disposition is not one of agency. There was evidence enough that the wife permitted her husband to manage her property in his own way, but there was no evidence that she ratified a management and control that deprived her of ownership. When her ownership was invaded by seizure on execution against her husband, she asserted her rights. The judgment creditor could appropriate only what the judgment debtor owned; and when manipulation by the husband of property admittedly belonging to his wife was established, it devolved on the judgment creditor to prove that beneficial title had passed to the husband with the legal title. (Carter v. Becker, 69 Kan. 524, 530, 77 Pac. 264.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on a promissory note and to foreclose a mortgage. The plaintiff was defeated, and appeals.
The facts are substantially these: John Lloyd was the owner of considerable real estate in Franklin county. He had a wife and four sons. In order to provide for distribution of his property at death, he executed a will in which he devised to each of his sons a portion of his real estate. In order to equalize an unequal division of the land and also to provide a trust fund for the benefit of his wife he directed that each of his sons should pay to Fred F. Fockele, as trustee, a certain sum of money, which, together with the proceeds of the sale of his personal property and the amount collected on his life insurance, was to be invested and the income therefrom paid to his wife so long as she should live. At her death the sum remaining was to be divided equally among the four sons.
Following the death of Mr. Lloyd it was ascertained that there was a blanket mortgage on his real estate for which no provision had been made for payment. The situation resulted in the execution of a contract between the widow and the four sons by the terms of which it was agreed that each of the sons should pay to the trustee the sum of $62.50 quarterly; that the trustee use the money, together with what he realized from the sale of the personal property, to pay the mortgage upon the land, and that whatever was remaining should become part of the trust fund mentioned by the deceased in his will. It was the purpose of the contract that each of the sons should contribute equally to this fund. Accordingly each son made a mortgage upon the land devised to him by the father, to the trustee, to secure the payment of the $250 per year so long as the mother should live. The provisions with relation to the mortgage and pledge were identical for each of the four sons.
After a time the defendant, Walter Lloyd, made default in payments to the trustee. The original contract between the mother and the sons was of record, but despite that and without the consent of the other brothers or the trustee, Walter Lloyd, his wife and his mother, executed a note and mortgage on the land in controversy to the New England Securities Company, which was sold and assigned to the plaintiff. The plaintiff seeks to foreclose such mortgage on the theory that it supersedes the original trust agree-ment entered into by Walter Lloyd with his mother, his brothers and the trustee. Fred Fockele, the trustee, answered in the action, setting upe the trust agreement. The court decreed to him a lien prior to the lien of the plaintiff’s mortgage.
The plaintiff contends that the court erred because when the mother executed plaintiff’s mortgage she conveyed her interest in the real estate in question and consented to the priority of the plaintiff’s mortgage over the lien of the trustee. It is argued that the court had jurisdiction to do complete equity between the parties, and that as soon as judgment was rendered against the mother, if the lien of the trustee be declared prior to the plaintiff’s, he (the trustee) would collect the amount of the lien and pay it to her, and that she should immediately pay it to plaintiff on its judgment against her. The argument, of course, is based upon the theory that Mrs. Lloyd is the sole beneficiary under the trust; that she has an interest in the real estate owned by Walter Lloyd which she could relinquish by signing the mortgage or that she assumes a place inferior to that of the plaintiff. We cannot concur in plaintiff’s contention. The obligations of the contract between the mother, the four sons and the trustee, were made mutual. Each son was bound alike. Each son pledged his real estate for the fulfillment on his part of the common bargain, and the trustee was named as the custodian of the fund which was to be thus created. It was also provided that in the end, when the moral or the legal obligations to contribute to the support of the mother should end by her death, that whatever was left arising from any source under the will or the contract was to be divided. This included whatever remained of the original principal after the debts and mortgage were paid, together with whatever parts of the quarterly payments had not been used by the trustee for the support and maintenance of the mother. Mrs. Lloyd had no vested right in the trust fund except that she was entitled to use such portion only of it as was necessary for her maintenance. She could not will away any part of it. She had no legal right to give it to others or to pledge it for her indebtedness.
The purpose of the entire transaction was to place upon the four sons of John Lloyd the legal obligation of providing the fund first, for the support of their mother, and second, for a final distribution among themselves at her death. Each of the sons was interested in the matter in several ways. He was first interested in making his quarterly payments. No one of these quarterly payments would be sufficient to provide a fund adequate for the purpose of the trust, and so each must make them, and each in turn was interested in seeing that the others shared the burden of the trust. Each was interested, also, in seeing that the terms of the trust as applied to all four were faithfully carried out, because at the death of the mother each son would own one-fourth of whatever amount was left in the trust fund. Under the arrangement Mr. Fockele was trustee not only for Mrs. Lloyd but for the entire family. He owed a duty to each of the four sons to collect from each of them the quarterly payments as long as the mother should live; to properly apply these payments; to prevent as far as possible the diminution of the original trust fund that came into his hands, and at the death of Mrs. Lloyd to faithfully account to each of the sons -for whatever amount arising from any source still remained of the trust fund. There was the mutuality of obligation on the part of each of the four sons on one side, the trustee upon a second side and the mother upon the third. Each was interested in the original creation of the trust, in its maintenance by the quarterly payments, in its administration by the trustee during the life of the mother and in the final distribution of the fund at the time of her death. Mrs. Lloyd had no vested interest in the trust fund except in so far as it might be necessary to provide for her the support which her husband desired her to receive.
Numerous authorities cited and relied upon by plaintiff are not, in our opinion, applicable to the facts before us. We think the trial court reached a correct conclusion.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover upon a surety bond given as a guaranty of the faithful performance of a building contract. It was brought by W. Roy Martin and Olive Martin, husband and wife, against Thomas Wyatt Robinson, a building contractor and the Detroit Fidelity and Surety Company. Olive Martin held the legal title to a lot in Lawrence and through her husband entered into a contract with Robinson to build a residence and a garage thereon in accordance with plans and drawings furnished the contractor, who was to provide all labor, material and equipment necessary to the construction of the buildings for the sum of $5,833 and to complete them on or before November 1, 1925. The owner was to pay the contractor $1,000 when the foundation was completed, $800 when the frame was up and the roof on, and $800 when the plastering was completed, and the balance when the house was completed on or before November 1, 1925. The contract contained a provision that if the house was not completed at that time the contractor would pay the owner $5 per day until it was completed. Among the stipulations in the contract was one that the contractor should give a surety bond covering the faithful performance of the contract. A surety bond was given by the contractor, executed by the Detroit Fidelity and Surety Company. The contractor proceeded with the' construction of the house, but before completion he abandoned the work, and it turned out that he had failed to pay for material and labor used by him in constructing the building. The owner advanced money in payment of the work from time to time, amounting in all to $4,341.50. When this action was brought the contractor ma'de default, but the surety company contested the claims of the plaintiffs.
In their petition plaintiffs alleged the making of the contract, the payments made to the contractor and his failure to faithfully perform the contract. They set forth a number of claims for labor and material which the contractor had used in the buildings and which he had failed to pay for, and for which mechanic’s liens had been filed on the property, the giving of the surety bond, and that the plaintiffs had done all things required of them under the provisions of the bond. They asked that all lien claims be required to be set up by the respective claimants and to have them adjudicated, and that they recover judgment for the amount found to be due to them, as well as for damages .for the failure to complete the buildings within the time fixed. The surety company filed a demurrer to the petition, which was overruled, and then answered in substance that the buildings to be constructed under the contract could not have been built for the contract price; that the plaintiffs and the contractor, with knowledge that it would cost a greater sum, had buildings erected, the cost of which was approximately $10,000; that this was done without knowledge of the surety company, and that plaintiffs have in fact suffered no loss by the default of the contractor. There was a further allegation that plaintiffs had advanced more money to the contractor than they should have done prior to the completion of the buildings, and that this was done without notice to or permission of the surety company. It was further alleged that modifications had been made in the plans of the house entailing added cost without the knowledge or consent of the surety company, and further that plaintiffs had failed to give due notice of the failure of the contractor, as required by the terms of the bond, and were not entitled to recover any amount under the bond. The trial resulted in a judgment against the surety company for $4,558.50, from which it appeals.
Error is assigned on the overruling of the demurrer to plaintiff’s petition and in the rendering of judgment. The surety company insists that the plaintiffs failed to comply with the provisions of the surety bond in that they did not immediately notify the surety company that the contractor had failed to complete the building on November 1, 1925. As the building was approaching completion the plaintiffs learned that some bills for labor and material were unpaid, and on December 21, 1925, they wrote a letter to the surety company that upon investigation it had been found that the contractors owed a number of dealers considerable sums of money for material and labor, which had not been paid, and they also called its attention to the fact that the contractor, who was still at work, had not completed the buildings in several particulars that were stated. The letter was acknowledged by the surety company on December 30, 1925, but it appears that the company did not offer to take over the contract and complete the building, nor did it take any action at that time other than to send its representative to check up the extent of the work done. The contract and the surety bond were set forth in the petition and the obligations of the several parties were stated in them. One provision was that if the contractor defaulted in carrying out the contract, or if he abandoned the work, the owners would immediately notify the surety company and thereafter the surety should have the right, at its option, to assume or sublet the contract to another and proceed with the completion of the building, in which event all the money agreed to be paid to the contractor and which at the time was unpaid, would thereafter be payable to the surety. While the contract was to be performed by November 1, notice that it was incomplete at that time was not given by the owners, but it was promptly given as soon as they discovered that the contractor was not paying for the labor and material which he had used in the buildings. The failure to finish the building on time, however, did not change the contract rights of the parties. That contingency was anticipated and mentioned in the contract. The contractor was still at work on the house on November 1, and for some time afterwards. Besides, the surety company, it appears, suffered no damage by lack of notice on November 1 that the house was unfinished, and a loss from that cause must be shown to relieve it from liability. (School District v. McCurley, 92 Kan. 53, 142 Pac. 1077.) In another case involving the effect of failure of the owners to give notice of defaults of an insured contractor and the rights of a surety company, it was said:
“The legal status of a surety company like the defendant is well defined in this state. It is an insurer for pay and does not occupy the position of the ordinary surety, who voluntarily undertakes to make good the default of his principal. The bonds which it dictates to those in need of them are to be interpreted to accomplish indemnity against loss sustained. Notice of default and notice of final payment are not cast-iron conditions precedent to liability, but are reasonable reservations made to afford the insurer an opportunity to protect itself against loss should it need and should it be able to do so. If no notice be given but no loss result as a direct consequence, liability is not affected. Actual damage resulting from failure to give notice must be pleaded and proved as a defense.” (Republic County v. Guaranty Co., 96 Kan. 255, 258, 150 Pac. 590.)
Another contention is that the plaintiffs had not complied with the requirements on their part in respect to payments made to the contractor, contending that final payment of $3,200.33, the difference between the amounts specifically stated and the contract price of the buildings, should have been reserved until the completion of the buildings. In the contract between the owners and contractor it was stipulated, as we have seen, that the contractor should pay $1,000 when the foundation was completed, $800 when the frame was up and the roof on, and $800 more when the plastering was completed, and the balance on the completion of the house. There was no provision in the contract with the surety company that any part of the price should be withheld for a definite time for the protection of the company, nor that it would escape liability if consent to final payment was not made to the owner, as only $4,341.50 of the price had been paid, leaving $1,480.50 of the contract price. It is not uncommon to provide in such contracts that the owner shall pay the contractor certain amounts from time to time and that a considerable amount shall be withheld and not paid without notice to and the consent of the surety. No such provision is found in this surety contract, nor is it open to such an implication. Moreover, the surety company sustained no loss by reason of payments before the work was finished. The payments made by the owners to claimants after November 1 for labor and material were credited to the surety company, and reduced to that extent the liability upon the bond. Considerable is said that the contract price was insufficient and that plaintiffs were to get a $9,000 house for $5,833. It may have been that the contract was taken at too low a price, and Robinson is spoken of in the record as a cutthroat contractor, but the price to be paid for the building was a matter of contract. No fraud in its execution was pleaded or shown. The fact that the contractor may have underestimated the cost of the construction is no defense to the contractor. The surety company, with its eyes open, guaranteed its performance, and it, no more than the contractor, can be relieved from liability by an underestimate of the cost of the building. It was an insurer that the contract would be performed. For a premium paid it guaranteed that the contract as made would be carried out, and it is not in a position to say to the owners that the contract was too favorable to them or that they got a better house than they bargained for. Mention is made of the fact that some alterations were made in the plans which affected the cost, but it appears that these were paid for by the owners and are not included in the amount adjudged against the surety company.
We conclude that a cause of action was stated in the petition and further that the judgment rendered is not without support.
Complaint is made that requested findings of fact and law were not made. It appears that no timely request was made for special findings. On his own motion the court in a memorandum opinion stated his views on the facts and law of the case, but did not assume to make formal findings. There was no request by the defendant for such findings until the case had been tried out and the judgment announced. It was then too late to demand special findings, and hence there was no error in the refusal. (Kansas City v. King, 65 Kan. 64, 68 Pac. 1093; Marquis v. Ireland, 86 Kan. 416, 121 Pac. 486.)
No material error being found in the record, the- judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action by resident taxpayers to enjoin a common school district and its officers from constructing an addition to-the school building and issuing bonds in payment therefor. The trial court made findings of fact and rendered judgment for defendants. Plaintiffs have appealed.
School district No. 28 in Kingman county was organized many years ago and has continued to exist under our laws relating to common schools. Its school building is situated in the unincorporated village of Penalosa. About 1911 the school board added courses of study to include two years of what is commonly called high-school work, and in 1924 began maintaining a four-year high-school-course. This course, and the instruction given under it, was later approved by the high-school supervisors under the state board of education and the school became a duly accredited high school. In 1926 the members of the school board, acting in their individual capacity, urged by the patrons of the district to provide a community center, conceived the idea of erecting a building for that purpose in the form of a gymnasium on lots to be donated to the school district situated across the street from the school building. They caused a petition to be circulated within the district and called a bond election for the purpose of voting $8,000 of the bonds of the school district for the construction of such a building. The proposition received a majority of votes cast at an election held May 10, 1927. Soon thereafter resident taxpayers of the district brought a suit to enjoin the issuing of the bonds and the construction of such building. A temporary injunction was issued. Defendants then consulted counsel and, having concluded that their proceedings were not in conformity to the statute, made no further defense in that case. No issue involved in that case is before this court. We are informed that final judgment went for plaintiffs, the costs have been paid, and that there has been no appeal. A statement of it is made simply as a part of the history of transactions leading .up to the issues in the case before us.
While the first action was pending a second petition was circulated within the school district asking the school board to call an election for the purpose of voting $8,000 of the bonds of the district for the purpose of building an addition to the school building, and at an election held July 8, 1927, the proposition received a majority of the votes cast. Soon thereafter a second injunction action was filed by resident taxpayers to enjoin the issuance of the bonds and the construction of the proposed addition to the school building, and a restraining order was issued. Defendants moved to vacate this order, but -this was not pressed for consideration, and on February 9,1928, there was a partial hearing of the case upon its merits. This hearing disclosed that no action had been taken at any school meet ing authorizing the building of an addition to the school building, or the voting of bonds, and the restraining order previously issued was continued in force as a temporary injunction pending the final determination of the case.
At the annual school meeting held in the school district in April, 1928, it was determined by the vote of those present that additional school room was desired. A tentative plan for an addition to the school building was presented, explained and discussed; the estimated cost was given as being $11,400, exclusive of flues, plumbing, heating, painting and equipment; the plans were accepted by the vote at the school meeting, it was also voted that the new building be built of tile, and the school board was instructed to call an election to vote $12,000 in bonds of the district to build and equip the building in accordance with the plans. Soon after this meeting a third petition was circulated within the district and presented to the school board requesting it to call an election for the purpose of voting $12,000 of bonds of the district for the purpose of building an addition to the school building, and on May 22, 1928, an election was had at which the proposition carried. The bonds were actually issued June 1,1928, and sold to the Guaranty Title and Trust Company of Wichita on June 29.
On June 9, 1928, plaintiffs, in the second injunction suit filed and previously mentioned, by leave of court filed an amended and supplemental petition setting up the action respecting the election on the $12,000 bonds, alleged the action was illegal in specific respects, and sought to enjoin the issue and sale of the $12,000 in bonds and the construction of the building provided for by the action of the school meeting and subsequently. Defendants filed an answer to this amended and supplemental petition.
On July 26, 1928, the defendant school board entered into a contract with one R. P. Yan Riker to build the addition to the school building in accordance with the plans approved at the annual meeting and the proceedings then and subsequently taken.
On July 31, 1928, plaintiffs brought a third injunction suit. In this they sought to enjoin defendants from issuing or selling the $12,000 worth of bonds, or the letting or carrying out of a contract for the building of an addition to the school building provided for at the annual meeting and subsequent proceedings. Issues were joined in that action.
The second injunction suit, on the issues joined on the amended and supplemental petition, and the third injunction suit, came on for trial on the merits and by agreement of counsel were heard together, and the findings of fact and conclusions of law and judgment of the court were made to apply to both cases. The judgment of the court below was in favor of defendants in both actions.
The notice of appeal gives the caption and number of the third injunction suit only, and defendants make the point that there has been no appeal in the second injunction suit. The point is rather a narrow one and we deem it not to be well taken. While there was not a formal order of consolidation, the cases were heard and tried as one case, and in fact, as the issues were then framed, they presented substantially the same questions. The same findings of fact, conclusions of law and journal entry of judgment applied to both cases, and we deem it in accordance with justice to treat the cases as having been consolidated in fact, and that the notice of appeal is applicable to both cases.
Let us now take up the legal questions argued by appellants. They argue first that a common school district in Kansas cannot issue bonds for high-school purposes, or for constructing high-school facilities'by subterfuge, or otherwise, nor does statutory authority exist for the issuance of bonds by common school districts for the purpose of building a gymnasium or opera house. In this connection the court found, among other things, that the school district has a substantial four-room school building, well furnished and equipped, and that the building would be sufficient for the needs of the school district if it did not provide a high-school course for its pupils. The court further found that there was practically no change in the design or purpose of the building from that which was first contemplated by the school board, and that the last-mentioned building, while voted and designated as an addition to the school building, was designed to be built as .a gymnasium for the purpose of holding dramatic and athletic exhibitions and other activities, and being particularly designed therefor, and also for the purpose of classrooms, or additional rooms for use in connection with the old building as the needs of the school might require. The statute provides (R. S. 72-302) that a school district shall be a body corporate, and shall possess the usual powers of a corporation for public purposes. This means, in a classification of corporate bodies, that a school district is what is known as a quasi corporation, as distinct from a corporation proper. (Beach v. Leahy, 11 Kan. 23.) With respect to such quasi corporations it has been repeatedly held that the power to issue bonds exists only when expressly conferred by statute or necessarily implied. (State v. Kansas City, 60 Kan. 518, 525, 57 Pac. 118; State, ex rel., v. Board of Trustees, 114 Kan. 485, 219 Pac. 283; Kaw Valley Drainage Dist. v. Kansas City, 119 Kan. 368, 239 Pac. 760.) These propositions may be considered as being well established, as plaintiffs contend.
Appellants argue that the common school district has no authority in law to furnish instruction in high-school subjects, or to conduct & high school, and our attention is called to the unreported decision in the case of Morton Salt Co. v. School District 136, Reno County, being a decision of the federal court for the district of Kansas, in which the learned judge stated, among other things:
“I have sought in vain for any statutory power conferred upon a school district, such as is district No. 136, to provide itself with a building to be ■employed for high-school purposes of any kind, or to enable the district to ■conduct and maintain a high school.”
We are inclined to think that the search of the learned judge and counsel who aided him was not thorough. The statute • (R. S. 72-1101) provides:
“That in each and every school district shall be taught orthography, reading, writing, English grammar, geography, arithmetic, history of the United States, and history of the state of Kansas, and such other branches as may be determined by the state board of education: Provided, That the instruction given shall be in the English language.”
Prior to the revision of this section in 1923 the statute designated •specifically subjects to be taught, “and such other branches as may be determined by the district board.” There was no statutory restriction on the school board, and there is none now on the state board of education, as to what branches, other than those named in the statute, shall be taught in the common school. From this it necessarily follows that if the school board, prior to 1923, and the ■state board of education since that date, determined that high-school branches be taught in a school conducted under the law relating to ■common schools, it was perfectly lawful that such subjects be taught. The fact that common schools have authority to give instruction in branches commonly spoken of as high-school studies, or to conduct .a high school, has been recognized in many of the sections of our •statutes relating to schools (R. S. 72-316; 72-1027; 72-3001; 72-3003; 72-3008; Laws 1925, ch. 235, § 2; Laws 1927, ch. 277), and has also been repeatedly recognized in decisions of this court. (Board of Education v. Welch, 51 Kan. 792, 33 Pac. 654; Board of Education v. Dick, 70 Kan. 434, 78 Pac. 812; Fisher v. Beck, 99 Kan. 180, 184, 160 Pac. 1012; Wright v. Board of Education, 106 Kan. 469, 188 Pac. 439; State, ex rel., v. School Distnct, 112 Kan. 66, 209 Pac. 665; Jackson v. Joint Consolidated School District, 123 Kan. 325, 327, 255 Pac. 87.)
Therefore, the point sought to.be made by appellants that the defendant school district had no authority in law to maintain a high-school course of study must be held to be without merit. It necessarily follows that when the district has authority to provide a course of study including high-school branches it has authority to construct a school building necessary or proper for such school. (R. S. 72-1023, 72-2001.)
Appellants argue that the building being constructed, however, is for a gymnasium or opera house and not for school purposes. This designation of the proposed addition to the building as an opera house seems to be a thought which occurred to appellants since the trial in the court below. We find no mention of that term in the record. The finding of the court did not justify the argument of appellants that the building is not to be used for school purposes. The action taken at the school-district meeting provided for an addition to the school building. The trial court holds that the design of the building is such as to make it suitable for holding dramatic and athletic exhibitions and also for the purpose of classrooms, or additional rooms for use in connection with the old building, as the needs of the school might require. Appellants argue that the defendants, in any event, have no authority to issue bonds and construct a building to be used as a gymnasium. In view of the action taken at the annual school' meeting, and the proceedings subsequent thereto, and the findings of the trial court, this argument of appellants is quite far-fetched. But even if the record disclosed that the sole purpose of the building was for the teaching of dramatics and athletics we should be slow to hold that defendants would have no authority to proceed. We have been cited to no authority holding, and we would be reluctant ourselves to hold, that the study of dramatic expression, or that physical training, were not educational subjects. It is a matter of common knowledge, of which this court may take judicial notice, that such subjects are taught in practically all the high schools, colleges and universities in this state.
The court found the assessed value of the property in the defendant school district to be less than half a million dollars. Appellants argue that chapter 241 of the Laws of 1925 establishes the legislative policy of this state with respect to high schools, and provides that no high school should be organized when the assessed value is less than two million dollars. The defendant school district was not organized under this statute; it had been organized many years, and the full high-school course of instruction had been given for more than a year prior to the enactment of this statute. The statute is not applicable here.
Appellants argue that the expense of maintenance of the proposed increased facilities under existing statutes is a practical impossibility. If defendants are acting within their legal rights the practicability of their action is for them to decide — not for this court.
Appellants argue that the proposed bond issue of $12,000 is in excess of that authorized by law. The contention is that R. S. 10-301, which places the maximum limit of bonded debt at 1% per cent of the assessed value, controls this issue of bonds, rather than R. S. 72-2001, which places such limit at 5 per cent. We think R. S. 72-2001 is the controlling statute, under the authority of City of Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009.
Defendants, by cross appeal, have raised a question which' should be determined. When the trial court decided for defendants, it dissolved the temporary injunctions previously granted but gave plaintiffs ten days to perfect an appeal to this court, and stayed the order of the court dissolving the temporary injunctions for such time, and further ordered that if plaintiffs perfected the appeal within that time th’at the judgment of the court dissolving the temporary injunctions be stayed, and the bonds given by plaintiffs be continued in force pending such appeal. Appellees contend that the trial court had no authority to make such order under the statute (R. S. 60-3331), and argue that while the statute deals both with attachments and injunctions, it is only the attachments which are allowed to remain in force pending the appeal — and that the word “injunction” is not used in that connection. It is clear the statute was drawn to apply both to attachments and injunctions, and that the apparently inadvertent omission of the word injunction in the last clause of the section does not destroy the purpose of the statute.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Cole, J. :
Elizabeth Bostwick brought her action in the district court of Rice county against Joseph A. Blair, Albert L. Perry, Celia Perry, Albert L. Perry, trustee, Alfred M. Boomer, Nancy D. Boomer, T. E. Nash, The Lyons Town Company (a corporation), M. D. Tucker, Mary J. Tucker, A. L. McMillan, and The Bunnell & Eno Investment Company,'for the foreclosure of a certain mortgage upon real estate situated in said county. The defendant The Bunnell & Eno Investment Company filed a disclaimer. The defendant Joseph A. Blair filed his demurrer to the petition in said cause, and the defendants A. L. Perry, trustee, A. L. Perry and Celia Perry filed their demurrer to the petition of plaintiff in said cause. On the 1st day of September, 1891, at the September term of said court, each of the demurrers filed was overruled, and. thereupon, on the 8th day of September, 1891, the defendants Joseph A. Blair and A. L. Perry filed their separate answers, and on the 17th day of September, 1891, the plaintiff filed her replies to the separate answers of Blair and Perry, and this was all the pleadings filed in said cause. On the 25th day of September, 3891, the cause was tried, the plaintiff not being present, and a judgment was rendered against said plaintiff; and thereupon, in due time, she filed her motion for a new trial, setting up among other grounds irregularity in the proceedings of the court, and that said cause was not properly reached for trial at the time the same was tried, which motion was overruled, and the plaintiff brings the case here for review.
The defendants in error present a preliminary question which first demands our.attention. They claim that the judgment of the district court affected not only the parties who are made defendants in error in this court, but also all other parties defendant in the lower court, and that, as the other defendants have not been brought to this court, the proceedings in error should be dismissed. We will first examine this question. The decree rendered by the district court of Rice county on the 25th day of September, 1891, recites as follows :
“And be it further'remembered, that on the 25th day of September, 1891, being'a regular day of the September, 1891, term of this court, and this cause being regularly on the docket and regularly set for trial, on this day came duly on to be heard upon the issue heretofore joined in this cause between the plaintiff herein, Elizabeth Bostwick, and the defendants Albert L. Perry, trustee, Albert L. Perry, Celia Perry and Joseph A. Blair. The plaintiff appeared not. The defendants Albert L. Perry, trustee, Albert L. Perry and Joseph A. Blair appeared in person, and the said Albert L. Perry, Celia Perry and Joseph A. Blair appeared also by their attorneys, A. M. Lasley, Jones & Jones, and C. P. Foley. Whereupon the court proceeded to hear the cause upon the issues joined between the plaintiff and the said defendants Albert L. Perry, trustee, Albert L. Perry, Celia Perry, and Joseph A. Blair, a jury being in open court expressly waived; and thereupon the defendant Joseph A. Blair introduced his testimony and rested his case, the plaintiff having failed to introduce any testimony. ’ ’
And said decree further recites :
“It is further ordered that this cause, as between the plaintiff, Elizabeth Bostwick, and the defendants Alfred M. Boomer, Nancy D. Boomer, T. E. Nash, The Lyons Town Company (a corporation), M. D. Tucker, Mary J. Tucker, A. L. McMillan, and The Bunnell & Eno Investment Company, do stand continued until the January, 1892, term of this court.”
It is clear from this decree that when the district court of Rice county took up this case, on the 25th day of September, 1891, it entered upon the trial of a specific issue between the parties which are named in the decree as above set forth. It is also clear that the court could only hear and determine one case at a time, and that, in the hearing of said case, no judgment could be rendered by the court affecting the interests or rights of any party not before the court. The decree recites that the case which was heard was one in which Elizabeth Bostwick was plaintiff and Joseph A. Blair, Albert L. Perry, trustee, Albert L. Perry and Celia Perry were defendants ; and, if the cause was properly triable at that time, the court could render a decree affecting the rights of those parties. It is true that there are statements in the decree setting forth that the title to the real estate in question in that case was quieted in Joseph A. Blair so far as all the defendants as well as the plaintiff were concerned, but the decree must be taken as a whole, and so construed, if possible, as to give force and effect to all of its statements. If this cannot be done, then any general statements in the decree must yield to those which are specific and positive in their terms. It ought not to be presumed that the court rendered a decree which it had not the power to render, and where such decree specifically recites, first, that it was the judgment of the trial court in an action between certain parties, who are named, and afterward recites that the action, so far as all other parties are concerned, is continued until another term of court, it must be assumed that the general statements contained in the decree with regard to the quieting of title in Joseph A. Blair as to all defendants refer to such defendants as were properly before the court. In any event, as before stated, they were the only parties who could be affected, and a decree which attempted to affect the rights of others would be of no force or effect. It follows from these views that the only parties who were affected by the j udgment of- the trial court were the plaintiff in error on the one hand and Joseph A. Blair, Albert L. Perry, trustee, Albert L. Perry, and Celia Perry, all of these parties having been brought into this court, unless it be Albert L. Perry, trustee. The record nowhere discloses for whom Albert L. Perry was trustee, and the appending of the simple term “ trustee” does not grant any rights, and is void for uncertainty. It is merely clescriptio personas, and all proceedings against Albert L. Perry are binding in such a case upon Albert L. Perry, trustee. We are of the opinion, therefore, that the motion to dismiss must be overruled.
With our view of this case, we only consider it necessary to pass upon one question presented, so far as the merits of the controversy are concerned. Upon the first day of the September, 1891, term of the district court of Eice county, this controversy, as far as it affects the, parties herein interested, stood upon an issue of law raised by'the demurrers of Blair and the Perrys. This issue was determined during said term of court, and an answer filed by the defendants Blair and A. L. Perry, to which replies were filed eight days prior to the day upon which said cause was heard, and during the same term of court. It appears from the record that the regular judge of said court, after having disposed of the demurrers in said cause, necessarily absented himself on account of sickness, and one of the attorneys for defendants in error was elected judge pro tern., and set this cause for trial for the 25th day of September, 1891. Now, we believe that the action of the trial court in setting a cause for trial is in the nature of an order, and could only be made by one having the right to make such an order, and, while the judge pro teto. had all the powers of the regular judge in his absence, it must still be doubted whether either the regular or the pro tern, judge could make an order to the prejudice of an absent party in a case in which such judge is an attorney of record. Our opinion is that he could not. In a case where the-judge has been of counsel in a cause, either a judge pro tern, should be elected under paragraph 1965 of the General Statutes, who should make all orders in the case, or a change of venue should be granted, the jurisdiction of the interested judge closing with the order changing the place of trial. (Gen. Stat. 1889, ¶4135.) From these views, it follows that no proper order was made setting this cause for trial. We are of the opinion, however, that, even if such order had been regularly made, the action was not properly triable at the September, 1891, term of the district court of Rice county. The attorneys for plaintiff were present when the demurrers were heard and overruled, and at that time this cause was not set down for trial. The regular judge of the court had stated that he must absent himself on account of personal illness, and, while the record discloses that the plaintiff was insisting upon the trial of the cause at the September term, it cannot be presumed that she wished the trial to take place in the absence of herself or her attorney, and with no notice having been received by them of the day when said cause was set for trial.
It appears, also, from the record, that one of the attorneys for the plaintiff, having received a telegram upon the day df trial that said cause had been set for trial on that day; drove immediately some 40 miles for the purpose of being present, if possible, when said case was called for hearing: We cannot see where any blame could be imputed to the plaintiff in error in this case, and are clearly of the opinion that the refusal of the trial court to grant a new trial' was re versible error, under the decisions of our supreme court. (Gapen v. Stephenson, 18 Kan. 140; Leighton v. Dixon, 42 id. 616.)
The judgment of the district court will be reversed, and this cause remanded for a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Cole, J. :
This was an action commenced in the district court of Rice county by the plaintiff in error to foreclose a mortgage upon certain property in said county. The only defendant that answered, claiming any rights opposed to plaintiff in error, was the defendant in error, J. T. Ralston, who alleged that he was the absolute owner of the real estate in controversy, having obtained his title by a certain sheriff’s deed, executed and delivered to him by the sheriff of Rice county, under an order of court in an action brought by one L. Judson upon an interest coupon secured by the same mortgage sought to be foreclosed in this action. The defendant further alleged in his answer, that the coupon sued upon by Judson was the first coupon maturing, and, as such, a first lien for the amount thereof upon the premises, and, further, that he was in possession of the premises, and that the same were discharged from any claim or lien of the plaintiff in error. There seems to have been but one' question presented to the district court, and there is •but one argued in the briefs filed by counsel in this court for decision in this case, and that is as to whether the lien of plaintiff in error under her mortgage is superior to that obtained by the defendant in error at the sheriff’s sale in the foreclosure brought by Judson. The trial court held that it was not, and plaintiff in error is here complaining of a judgment declaring the lien of Ralston to be superior to hers.
It is, however, contended by defendant in error that there is no question properly before this court, for the reason, as it is claimed, that it affirmatively appears that the record does not contain all the evidence introduced in the trial court. The record itself contains a statement, as well as a certificate of the trial judge, that it does contain all the evidence introduced at the trial. But it is contended by counsel for defendant in error that the decree entered in the case brought by Judson, under which the deed to Ralston was issued, was introduced in evidence, and that the record so shows, but that 'said decree is not contained in the record. There is a statement in the record that a certain paper marked “Exhibit A” was offered in evidence, but the record does not disclose whether it was received and read. There is also a statement showing that the decree referred to was handed to one of the witnesses being examined, and his attention directed to its contents, the paper being referred to as “Exhibit A." The record contains an exhibit A, which is the sheriff's deed to Ralston under the Judson foreclosure. With the record in this condition, it is impossible for us to say whether the exhibit A which was offered in evidence was the sheriff's deed which is properly made part of the case-made, or whether it was the paper exhibited to the witnesses marked ‘ ‘ Exhibit A.” We must, however, presume, under the statement that the record contains all the evidence, and the certificate of the trial judge to the same effect, that the proper exhibit A was included in the case-made, and that the question raised by plaintiff in error is therefore properly before us for decision.
We are of the opinion that the district court erred in its decision. The plaintiff in error in this case claims under the mortgage given by Bell and wife to the Western Farm and Mortgage Trust Company, and by it assigned to her. The defendant in error, Ralston, claims under the saló made in the foreclosure brought by Judson upon the first interest coupon of the same bond which is sued upon by plaintiff in error, and the sheriff’s deed executed upon the confirmation of such sale. The rights of Ralston must therefore be the same as, and cannot be superior to, those obtained by Judson, who was the plaintiff in the foreclosure action upon the interest coupon. This is evident from the fact that, in his answer, Ralston alleged that he obtained his title in the manner above referred to, and pleads the same and that title alone. What were the rights of Judson? By reference to the petition filed in the Judson foreclosure, it appears that the holder of the principal mortgage bond here sued upon was not made a party, but Judson, in Ms petition in that case asks
"that said lands and tenements may be sold according to law, without appraisement, . . . subject, however, to any interest therein, lien thereon, or claim thereto by the holder of the promissory note, to wit, the real-estate coupon mortgage bond first herein described, together with interest notes, to wit, the coupons attached thereto and not included in plaintiff’s claim herein. . . .”
The bond first described in said petition is the one in suit in this action. Judson was entitled to no stronger decree than that prayed for in the petition, and the petition plainly admits that the claim of Judson was to be subject to any lien or claim of the holder of the bond and mortgage here in suit.
Again, the evidence discloses that at the sale under the Judson foreclosure Ralston was personally present, and was informed that the premises were being sold subject to a mortgage of $2,000. Counsel for defendant in error contends that the words " subject to ” do not mean subject to a prior lien. We think, when a person purchases a piece of real estate subject to a mortgage, that he well understands that the rights of the holder of the mortgage are paramount to those obtained by him.
Again, is Ralston in a position to question the priority of the lien of the mortgage of the plaintiff in error? We are of the opinion that he is not, not only for the reason that he obtained only the rights of Judson, who admitted the priority of plaintiff in error’s mortgage, but also because, in this case, he bases his defense and his title upon the sheriff’s deed issued in the Judson foreclosure, which deed recites .that the title thereby conveyed was subject to the lien of the mortgage of plaintiff in error. Ralston is certainly estopped from denying tlie validity and priority of plaintiff's lien, -which is admitted in the very deed under which lie claims title in this action. (Scott v. Douglass, 7 Ohio, 228; Kaine v. Denniston, 22 Pa. St. 202; Freeman v. Auld, 44 N. Y. 55; Clapp v. Holliday, 48 Ark. 258, 2 S. W. Rep. 858.)
It is further contended by counsel for defendant in error, that Ralston is entitled to a prior lien for the reason that he paid the taxes which were due and unpaid. at the time of the Judson foreclosure. Our view of the matter is that Ralston purchased simply the equity of redemption at the sale under the Judson mortgage. The taxes due and unpaid at that time were not paid by Raison, but were paid by the sheriff, under the direction of the court, out of the proceeds of said sale, and he thereby extinguished the tax lien existing upon the premises. There are no special equities in this case in favor of defendant in error. He had actual knowledge of the condition of the title which he purchased and accepted a deed for, which admitted the priority of the lien of plaintiff in error.
The judgment of the district court will be reversed, and this cause remanded, with instructions to render judgment according to the views expressed in this opinion.
All the Judges concurring.
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The opinion of the court was delivered by
Cole, J. :
This action is before us upon a motion to dismiss for the reason that the record discloses that the amount in controversy does not exceed $100, and for the further reason that the record discloses that no proper appeal bond was filed with the justice of the peace from whose judgment the plaintiff in error attempted to appeal to the district court. This court cannot at this time pass upon the second question raised, for that is the sole question practically involved in the case as it comes to this court for review; but the first point raised has already been passed upon by this court in favor of the position contended for by defendant in error. In this case the record discloses that the amount involved in this controversy does not exceed $100, and unless it affirmatively appears that the amount in controversy exceeds that sum, inclusive of costs, or the district judge shall certify that the case is one coming within the exceptions named in the statute, this court has no jurisdiction to hear and determine the same. No certificate appears in this record to take the case out of the rule laid down in Clark v. City of Ottawa, 1 Kan. App. 304, and the case is therefore dismissed.
All the Judges concurring.
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The opinion of the court was delivered by
Dennison, J. :
This is an action brought in the district court of Rice county, Kansas, by Lodemia Shuyler against W. G. Van Zandt and H. H. Carr, to recover the value of a quantity of broom-corn of which she claims to be the owner, and which she claims was taken from her possession by said defendants and converted to their own use. The plaintiff claims to be the owner of the broom-corn by reason of having purchased it from her husband, D. M. Shuyler, at a time prior to its being baled, and before a portion of it had been cut or seeded. She claims to have paid him $95 for it, and to have paid $79.70 as the expenses of gathering, seeding, baling, etc., making a total of $174.70, which the broom-corn cost her. She claims that she had loaned her husband some money which she had received from her father's estate, and that, by a settlement had with him on February 14, 1888, he owed her $736.66, and that he then conveyed to her personal property of the value .of $434, leaving a balance due her on that day of $302.66. A statement to that effect, bearing said date, signed by said D. M. Schuyler, is introduced in evidence, marked “Exhibit B.” She also introduces a bill of sale, dated September 17, 1890, of the broom-corn for $95, as a part payment on the sum of $338 of money borrowed of her. Said bill of sale is signed by D. M. Shuyler, and is marked “Exhibit A." The defendant PI. PI. Carr claims that he levied upon said broom-corn and took possession thereof under and by virtue of an execution issued out of the district court of Reno county, Kansas, upon a judgment of record therein in favor of The Smith - Keating Implement Company against D. M. Shuyler et al.; that he levied upon said broom-corn as the property of said D. M. Shuyler, and that he sold the same to the highest and best bidder for cash, to wit, W. G. Van Zandt, for the sum of $173. The defendant W. G. Van Zandt was the purchaser of the property at the sale, and took possession of it. The agreed value of the broom-corn is $173.18. The case was tried with a jury, which returned a verdict for the sum of $175.80 in favor of the plaintiff, and judgment was rendered thereon against the defendants, and they bring the-case here for review.
The defendant in error contends that the plaintiffs in error have paid the judgment upon which the execution issued, and hence cannot maintain their defense to the action. The evidence discloses the fact that they had indorsed a note to the Smith-Keating Implement Company, and after judgment had been rendered thereon they had paid the company. Whatever there may be in this question, the defendant in error is in no position to complain of it. The objection is raised in her brief for the first time, and we cannot, therefore, review the question. Besides, it is no concern of the defendant in error whether the judgment or the execution is sufficient or not. She must recover upon the strength of her own title, not upon the weakness of the title of the plaintiffs in error. If she is the owner of the broom-corn, she can recover, whatever may be the condition of the j udgment or the execution, and if Mr. Shuyler is the owner of the broom-corn, then the condition of the judgment and execution is his affair, and not hers.
The only issue in the court below was : Did the broom-corn belong to the defendant in error, and, if so, did she by any act of hers waive the right to assert her ownership? The .broom-corn was raised upon the homestead of Mr. and Mrs. Shuyler, and if Mrs. Shuyler owned it she must rely upon the purchase from her husband for her title. This property was apparently in the possession of the husband. He appeared to be the owner thereof, and there was some evidence tending to show that he had sold it as his own to one Harris. However, the deposition of Harris and the bill of sale do not appear in the record. It must be conceded that a married woman can hold her own separate property, can purchase property from her husband, and can be by him made a preferred creditor. Where a wife claims to have purchased property from, or to have been a preferred creditor of, her husband, and he is financially embarrassed, the courts should require clear and convincing proof of the fact of the transaction, and the good faith and fair consideration thereof. In Dresher v. Corson, 23 Kan. 313, the supreme court says :
“ Communications between husband and wife being privileged, the opportunity for fraud, if fraud is desired, is great, and searching inquiry is proper. Unless care is taken and courts are watchful, those laws which were designed for the protection of married women will become repulsive to the moral sense as mere covers for fraud.”
Except the close scrutiny to be given such transactions between husband and wife, and the clear and convincing proof necessary tb satisfy the court that the transaction has actually taken place, and that the same is in good faith and for adequate consideration actually paid out of the separate estate of the other, we apprehend that the same rules as to the admission of testimony are to govern as in other cases. The plaintiffs in error contend that the court erred in not requiring a communication of the husband to the wife to be related by D. M. Shuyler, and cite an Indiana decision to sustain their position. This may be correct in Indiana, but in Kansas both the husband and wife are prohibited from testifying to any communication between them while the marriage relation exists. (Gen. Stat. 1889, ¶ 4418.)
The plaintiffs in error claim that the court erred in admitting in evidence exhibits A and B, being the bill of sale and statement of settlement given by D. M. Shuyler to the defendant in error. As to. exhibit A, which is the bill of sale of the broom-corn, the defendant in. error testifies that she received the bill of sale from D. M. Shuyler on the day it bears date, and that he wrote it, and Albert Corn testifies that he signed it as a witness at the request of Mr. Shuyler. Exhibit B is a statement of a settlement between Mr. and Mrs. Schuyler, and a payment of stock thereon, and the only purpose it could serve would be to furnish cumulative evidence that Mrs. Shuyler had received some money from her father’s estate and had loaned $400 of it to her husband, and all of it had not been repaid. Mr. and Mrs. Shuyler had both testified to this fact, and Mrs. Shuyler testified that Mr. Shuyler wrote and delivered the statement to her. As to exhibit A, it was identified by the subscribing witness, which is sufficient. As to exhibit B, no prejudicial error was committed in its admission.
Several of the errors complained of relate to the refusal of the court to admit testimony of the acts and conversations of D. M. Shuyler in the absence of the defendant in error, and also as to a forthcoming bond executed by D. M. Shuyler and others. All of these matters may be considered together. The acts and statements of D. M. Shuyler in the absence of the defendant in error cannot bind her, unless they were done or made by him as her agent while transacting her business, and connected therewith as a part of the res gestae, and were within the scope of his authority as such agent. D. M. Schuyler was her agent to fit the broom-corn for market, and to market it. He certainly was not her agent in the. purchase of it, for he was the seller. The question which was material to the plaintiffs in error was, Did she own it ? Had she actually purchased it in good faith for an adequate consideration out of the proceeds of her separate property ? If so, then it was entirely immaterial to the plaintiffs in error what she or her agent may have done with it or said about it, and if she was not the owner it would also be immaterial to the plaintiffs in error what they may have done with it or said about it, for their rights could not be prejudiced thereby. The only purpose the evidence could serve would be to assist in establishing the ownership in D. M. Shuyler, and he was not her agent in the purchase thereof, and she could not be bound by his acts or statements in her absence.
The remaining error complained of is in the refusal of the court to give the instructions asked by the plaintiffs in error. The brief of the plaintiffs in error upon this assignment of error, like all the others, is little more than a repetition of the petition in error. Our attention is not called to any particular question upon which they were entitled to instructions not given by the court. We are left to study it out ourselves, or let the client suffer if actual error has been committed. We have fully examined the instructions asked and those given, and find that nearly every instruction asked was given in the general instructions, and in almost the same language as those asked. 'The second and third instructions were not given in substance, and should not have been, for there is no evidence upon which to base them.
No material error was committed-upon the trial of this action prejudicial to the substantial rights of the plaintiffs in error.
The judgment of the district court is affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Dennison, J. :
This is an action brought in the district court of Rice county, Kansas, by George C. Whinfield, as plaintiff, against Frank G. Willard, as defendant, to recover the damages sustained by said Whinfield by reason of the conversion of 101 head of his sheep by said Willard, and also to recover the amount of an alleged agister’s lien upon about 1,400 sheep, claimed to have been wrongfully taken from the possession of said Whinfield by said Willard. Willard claimed the right to the immediate possession of the sheep by virtue of a chattel mortgage given by J. M. Ostrander to said Willard. Whinfield claimed that the larger portion of the 101 sheep was bought by Ostrander of one Moore after the execution of the Willard mortgage and was not included therein, and had been bought by said Whinfield of said Ostrander. He also claimed to have been feeding and caring for the 1,400 sheep which were included in the Willard mortgage under a contract ■ with the mortgagor, Ostrander. The 101 sheep were valued by Whinfield at $353.50, and the feed bill was alleged to be $492.90. The case was tried with a jury, and a verdict returned by them in favor of Whinfield for the sum of $448.25, and judgment for said amount and the costs was rendered against said Willard, and he brings the case here for review.
One of the errors complained of by the plaintiff in error is in the refusal of the court to give the instructions asked for by him. The instructions asked for are quite long, and those given by the court cover about 20 closely typewritten pages, and will not be set forth in this opinion. We have carefully considered the instructions given and those refused, and find that those given cover all the material and proper points covered by those refused. No material error prejudicial to the substantial rights of the plaintiff in error was committed by the trial court, either in giving or refusing to give instructions.
The plaintiff in error in his brief contends
'1 that the lien of a chattel mortgage properly filed is paramount to that of an agister for subsequently pasturing the mortgaged stock, unless it is shown that the mortgagee consented, either expressly or impliedly, that such stock might be so pastured and subjected to such lien, and the fact that the mortgagor retains pos session of the mortgaged property is not of itself proof of such consent.”
This question has been decided by our supreme court in the case of Case v. Allen, 21 Kan. 217; and, following that decision, we must hold that the contention is not good.
The plaintiff in error also contends that Whinfield voluntarily relinquished the sheep, and therefore his lien is not good. The evidence shows that Willard and several others came and took possession of the sheep while Whinfield was temporarily absent hunting stalk-fields, and had left the stock to be herded by another person, and that upon his return, after being informed of what had occurred, he immediately followed after the sheep and demanded the return of them. Under such circumstances, Whinfield cannot be deemed to have waived or lost his lien.
Upon a careful examination of the whole record, we find no material error has been committed prejudicial to the substantial rights of the plaintiff in error. Therefore, the judgment of the district court is affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal by the defendant from a conviction for aggravated robbery (K. S. A. 21-3427) and unlawful possession of a firearm (K. S. A. 21-4204). The pertinent facts are as follows:
In the early morning hours of February 5, 1973, the defendant, Earl Johnson, Jr., arrived at the Clifton Manor Motel in Wichita, and rang the late registration bell. Upon being awakened, the night clerk, Eupha Jill Empson, opened the front door and admitted the defendant into the motel’s office. The defendant registered and paid for his room in cash. Mrs. Empson secured a bank bag containing prior receipts from a drawer in the office desk, tendered to the defendant his change and a receipt, and placed the bank bag back on the office desk drawer. The bank bag was blue in color and had a zippered opening.
The defendant then pulled a gun on Mrs. Empson and demanded to see the motel register. He told her he was not going to rob her, but he believed his wife was in a room with another man. After reading the register and tearing out the page on which he had registered, Johnson asked Mrs. Empson if anyone was in the back room, and threatened to kill her if she lied. Mrs. Empson informed Johnson that no one was in the room. Johnson forced her into the back room and immediately checked it for other occupants. A few moments later, Johnson told Mrs. Empson that he was going to put her to sleep and began choking her until she lapsed into a state, of unconsciousness. When she regained consciousness she discovered, much to her surprise, that Johnson was still there. Johnson then forced her into a bathroom and threatened to kill her if she opened the door. Mrs. Empson complied and sometime later when she ventured out she found the front door of the motel open and Johnson was gone. She immediately telephoned her daughter and the police. After the police arrived, and during the course of their investigation, Mrs. Empson discovered the bank bag was missing.
Thereafter, the defendant was arrested and charged with aggravated robbery and unlawful possession of a firearm. Johnson entered a plea of not guilty to both counts and the matter came on for trial to a jury on May 7, 1973. Immediately before his trial, the defendant offered a written and signed admission to the court. In that admission, the defendant acknowledged having been convicted of a felony within five years of the offenses he was charged with in this action. Counsel for the defendant then moved the court to limit the prosecution s evidence by not allowing the state to introduce evidence of the defendant’s prior convictions of forcible rape and second degree kidnapping. The prosecution objected to the defendant’s motion in limine. The district court overruled defendant’s motion.
During the trial, the state called Mrs. Empson as a witness. She identified the defendant as the one who had robbed the motel on the morning of February 5. On cross-examination she testified that she had not seen the defendant or anyone else take the blue bank bag.
The prosecution also called Joann Williams as a witness. At the time she was called to take the stand, the defendant objected to her testifying on the ground she was his common-law wife and he was invoking the marital privilege. The jury was excused and the witness examined. Miss Williams testified her mother had wanted her to marry the defendant; that she had lived with him off and on for seven months; that they had lived together continuously for the last two months prior to February 12, 1973, when the defendant was arrested; that some people knew they were living together without having gone through a marriage ceremony, while others thought they were legally married; that the defendant had purchased her food, clothing, and shelter while she was living with him. She further testified she had never signed her name as Mrs. Earl Johnson; that a marriage license was never obtained; that prior to the defendant’s criminal activities she intended to go through a marriage ceremony with the defendant at some future date; that after the motel robbery she no longer intended to marry him, and that she and the defendant had referred to each other as husband and wife in the presence of defendant’s employer and their landlady. Joann Williams was .fourteen years old at the time the Clifton Manor Motel was robbed. Following this testimony, the district court found no common-law marriage relation existed and allowed Miss Williams to testify.
Miss Williams then testified she had accompanied the defendant to the Clifton Manor Motel on the night of the robbery and had waited for him in the restroom. She stated the defendant had informed her of his intent to rob the motel prior to the robbery. Miss Williams also saw a .22 caliber revolver in Johnson’s possession. After the robbery, Johnson and Miss Williams left the motel in a taxi and went to the home of Johnson’s sister. There, according to Miss Williams, Johnson gave her a blue bank bag and told her to count the money in it. She counted the money and gave it back to Johnson. According to Miss William’s recollection, she counted approximately $200.
The prosecution’s last witness was Detective Joseph R. Thomas. After calling this witness, the prosecution requested the district court take judicial notice of a prior case — the complete record of the defendant’s prior felony convictions. The district court took judicial notice of the file and the state asked the witness to examine the file and inform the jury of the nature of the defendant’s prior convictions. Counsel for the defendant objected to the procedure, but the court overruled the objection. Detective Thomas was permitted to testify that the defendant had been previously convicted of kidnapping and rape.
At the conclusion of the two-day trial, the jury returned a verdict finding the defendant guilty of both counts. The defendant was sentenced to the state penal institution for a period of not less than fifteen years nor rqore than life on the charge of aggravated rob bery (K. S. A. 21-3427; 21-4501 [b]), and for a period of not less than three nor more than ten years on the charge of unlawful possession of a firearm. (K. S. A. 21-4204 [1] [&]; 21-4501 [d].) Both sentences were ordered to rim concurrently. The defendant duly perfected this appeal.
The appellant contends the district court erred in allowing the prosecution to introduce the nature of his prior felony convictions in light of his admission of those prior convictions, and that such evidence was highly prejudicial to him. This contention relates to the charge of unlawful possession of a firearm. The relevant statute, K. S. A. 21-4204 (1) (b), reads:
“Possession of a firearm with a barrel less than twelve (12) inches long by a person who, within five (5) years preceding such violation has been convicted of a felony under the laws of Kansas or any other jurisdiction or has been released from imprisonment for a felony.”
We are of the opinion the appellant’s contention cannot be sustained. It is an established rule of law that an admission by a defendant does not prevent the state from presenting separate and independent proof of the fact admitted. (State v. Wilson, 215 Kan. 28, 523 P. 2d 337; Wharton’s Criminal Evidence [12th ed. 1972 Cum. Supp.], Confession and Admission, § 399.) Clearly, the state has the right to prove the prior convictions by other independent evidence. (State v. Campbell, 210 Kan. 265, 500 P. 2d 21.) The statute, K. S. A. 21-4204 (1) (b) requires the state prove the defendant had a firearm with a ban-el less than twelve inches in Iris possession, and that the defendant had been convicted of a felony within five years preceding the violation. We find no merit in defendant’s claim of prejudicial error.
The appellant next contends the district court erred in allowing Joann Williams to testify, contending she was the common-law wife of the defendant and he had claimed the marital privilege to exclude her testimony. In Kansas the three requirements which must coexist to establish a common-law marriage are as follows: (1) A capacity to marry; (2) a present marriage agreement, and (3) a holding out of each other as husband and wife to the public. (Gillaspie v. Blair Construction Co., 192 Kan. 455, 388 P. 2d 647; Schrader v. Schrader, 207 Kan. 349, 484 P. 2d 1007.)
The common law sets the ages of consent to be fourteen for the male and twelve for the female. In Browning v. Browning, 89 Kan. 98, 130 Pac. 852, the plaintiff sued for an annulment on the ground that he was a minor when he married and that he had not received the consent of his parents. Regarding this argument, this court said:
. . In forbidding the issuance of a license for the marriage of a minor without the consent of the parent or guardian the legislature is to be regarded, for the reasons already indicated, as intending to prevent minors from the improvident exercise of the power to enter the marriage relation, rather than to deprive them of the capacity to do so. . . .” (1. c. 101.)
In the case at bar, Joann Williams was fourteen years of age when she and the defendant began cohabiting together, and, therefore had the capacity to form a common-law marriage.
The second requirement necessary for the establishment of a common-law marriage is a present marriage agreement. Regarding this requirement, in the case of In re Estate of Freeman, 171 Kan. 211, 231 P. 2d 261, it was said:
. . In order to constitute a valid common law marriage there must also be a present marriage agreement rather than an agreement to be married in the future. . . (1. c. 213.)
While the present marriage agreement need not be in any particular form (Cain v. Cain, 160 Kan. 672, 676, 165 P. 2d 221; In re Estate of Keimig, 215 Kan. 869, 872, 528 P. 2d 1228) it is essential that each have a mutual present consent to the marriage. (Pitney v. Pitney, 151 Kan. 848, 101 P. 2d 933; Schrader v. Schrader, supra.) If a common-law marriage posture is assumed, a subsequent intent to no longer be married, in and of itself, does not nullify that posture.
The final requirement of common-law marriage is a holding out of each other as husband and wife to the public. Here, Miss Williams testified that she never signed her name as Mrs. Earl Johnson. The parties held themselves out as husband and wife only to the defendant’s employer and their landlady. As to the public in general, there was some substantial question as to the relationship between the parties. Moreover, when the appellant was questioned by a Wichita Police Officer he stated he had registered under fictitious name because he was staying there with his girl friend whom he identified as Joann Williams. It thus appears Joann Williams and the appellant held themselves out to be man and wife only when it was advantageous to assume a marriage posture. Lacking the requirement of holding out of each other as husband and wife to the public, there was no common-law marriage, and the claim of marital privilege is without merit.
The appellant next contends the district court committed re versible error in not granting a mistrial after a question was asked by the prosecutor. The contention relates to a question asked Joann Williams on redirect examination. Regarding this point, the record shows the following:
“Q. All right, had done? Had you known about any other robberies that Mr. Johnson
“A. Well—
“The Court: Just a minute. Approach the bench.
“Mr. Stout: I move for mistrial — no, I move for mistrial.
“The Court: Just a minute.
“Mr. Stout: Your Honor—
“The Court: Approach the bench. No more.”
Thereafter, the district court excused the jury and heard argument on defendant’s motion for a mistrial. The court sustained defendant’s objection to the question, but denied the motion for mistrial. The next morning the court instructed the jury as follows:
“. . . The objection to the last question at the close of the session yesterday is sustained, and the jury is instructed to disregard any answer, if there was one given. I’m not sure a complete answer was given.”
The district court’s admonishment was clear, and under all the circumstances we find no prejudice to the defendant.
Appellant lastly contends the district court erred in failing to instruct on the lesser included offense. Appellant argues the court should have given the jury instructions on the crime of aggravated assault, aggravated battery, and battery. Where the crime charged may include some lesser crime, it is the duty of the court to instruct the jury, not only as to the crime charged but as to all lesser offenses of which the accused might be found guilty under the information and upon which evidence was adduced, even though such instructions were neither requested nor objected to. (K. S. A. 21-3107 [3]; State v. Harris, 215 Kan. 961, 529 P. 2d 101.) The appellant was charged by information with having committed aggravated robbery and unlawful possession of a firearm. Here, the evidence indicated commission of the offense of aggravated robbery by someone. That is, whoever committed the assault and battery also stole the money. The real issue was whether defendant was the perpetrator. Under those circumstances it was not necessary to instruct on the lesser offenses.
The judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This action stems from an order of the appellant-Kansas State Board of Nursing (hereafter referred to as the board) suspending, for a period of six months, the license of appellee to practice professional nursing.
Appellee, Patricia Jane Burkman, became a registered nurse in 1957. She practiced her profession as a licensed registered nurse through December 31, 1970, when her license for the year 1970 expired. Although she had received an application form for renewal of her license, she failed to mail an application for renewal as required by K. S. A. 65-1117, which provides the normal procedure in renewing a license, as well as the procedure for securing a renewal of a lapsed license. It reads in pertinent part as follows:
. . Upon receipt of such application and payment of fee, the board shall verify the accuracy of the application and grant a renewal license effective January 1, and expiring the following December 31, and such renewal license shall render the holder thereof a legal practitioner of nursing for the period stated on the certificate of renewal.
“Any person who shall fail to secure a renewal license within the time specified herein may secure a renewal of his or her lapsed license by making verified application therefor on a form to be provided by the board and upon furnishing proof that the applicant is at the time of making such application competent and qualified to act as a professional or practical nurse and such additional material and information as may be required by the board, and payment to the board of a renewal fee.”
Despite her failure to renew her license, appellee continued to practice as a registered nurse, serving as Director of Nurses at Neosho Memorial Hospital until August 1972 and then worked for nearly a year in the office of her husband, a licensed physician. In July 1973 appellee was apprised of the fact that a complaint had been filed with the board concerning her continued practice under a lapsed license. Appellee, by telephone, requested the board to send her a renewal application. On receipt of this application appellee filled it out and returned it together with the appropriate renewal fee to the board as contemplated in the last paragraph of K. S. A. 65-1117, above quoted. Appellee’s license was not renewed and she asked for a hearing before the board. In the meantime, a complaint was filed by the board’s attorney charging that appellee did not renew her license to practice musing after it expired on December 31, 1970, and that she:
“. . . did knowingly, willfully, and unlawfully practice as a professional nurse as defined by the provisions of K. S. A. 65-1113, (b) (1) and within the State of Kansas on and after the 31st day of December, 1970 after her license to practice as a professional nurse in the State of Kansas for the year 1970 had expired, and did so engage in the practice of professional nursing on and after December 31, 1970 without being licensed to do so by the Kansas State Board of Nursing, contrary to and in violation of the provisions of K. S. A. 65-1122 (b) and by reason thereof is guilty of unprofessional conduct as set forth in the provisions of K. S. A. 65-1120 (a) (6).”
On November 30, 1973, a hearing was had in which the board found:
“(1) That the respondent practiced professional nursing without a license for a long period of time, approximately 31 months in a responsible position which requires supervision of other professional personnel. In this position, she should have been aware of her own legal status, as well as those under her supervision.
“(2) That the respondent failed to assume personal responsibility for maintaining a current license as required by law.”
Based upon the findings recited the board made the following orders:
“(1) That the acts of the above-quoted respondent as set forth herein constitute unprofessional conduct.
“(2) That the license of the respondent, Patricia Jane Burkman, to practice professional nursing within the State of Kansas be suspended for a period of six (6) months, beginning December 1, 1973, through May 31, 1974.”
Pursuant to K. S. A. 65-1121 (a), appellee filed an application for rehearing which was denied. Thereafter, appellee appealed to the district court for review of the board’s order as provided in 65-1121 (b) which reads in pertinent part:
“. . . The court shall review the record of the board’s proceedings of such order or decision and, in event it finds such order or decision unlawful, arbitrary or unreasonable, may vacate or set aside such order. . . .”
After hearing arguments the court set aside the board’s order and directed the board to issue a license to plaintiff. In its memorandum opinion the trial court found:
“Plaintiff continued to function as a nurse during the time that her license had lapsed. There is no evidence that she willfully or intentionally failed to renew her license, and there is no contention that she was not at all times fully qualified; further, it is not charged and there is no evidence that she committed any act, either of commission or omission, that would be the basis for revocation or suspension other than failure to renew her license annually.”
The court noted the limitations of its power and review under 65-1121 and Kansas decisions bearing upon the subject collected and discussed in the case of Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P. 2d 828, 28 A. L. R. 3d 472. The trial court further pointed out that the grounds for revocation or suspension of a nursing license are set out in K. S. A. 65-1120 and that the only ground relied upon by the board was unprofessional conduct. The trial court’s reasoning was that while the evidence in this case showed that appellee was negligent it was only carelessness in failing to renew her license and that there was no evidence that she wilfully or intentionally failed to do so; and that such negligence had nothing to do with the performance of her duties as a nurse and, therefore, did not constitute unprofessional conduct.
Regulation of the nursing profession has been provided by statute in Kansas since 1913 (Laws of 1913, Chapter 231), but this is the first case to reach this court in which an action of the board has been challenged. While there are some differences in structure and language of the act in question and that of the licensing acts of allied professions engaged in the healing arts, we believe the general purpose of the nursing act to be essentially the same as that found by this court with respect to other licensing acts. In considering the licensing act of psychologists (K. S. A. 74-5301) in the recent case of Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 510 P. 2d 614, Justice Fontron speaking for the court said:
“It should be borne in mind that the underlying purpose of licensing acts of this character is to afford protection to members of the public against unscrupulous, immoral or incompetent practitioners of the healing arts and allied professions. . . .” (p. 111.)
In considering the purpose of licensing acts related to other professions engaged in the healing arts, this court has expressed a similar view with respect to doctors of medicine, (Kansas State Board of Healing Arts v. Foote, supra); dentists, (Capland v. Board of Dental Examiners, 149 Kan. 352, 87 P. 2d 597); optometrists, (Marks v. Frantz, 183 Kan. 47, 325 P. 2d 368); and child oare homes, (Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239).
Unlike most of the licensing acts referred to, the nursing act, as we have noted, prescribes by statute the scope of judicial review of proceedings before the board. According to K. S. A. 65-1122 the tests to be applied to the board’s orders on judicial review are “unlawful, arbitrary or unreasonable.” The framework in which judicial determination of these tests is to be made is the same as that set forth by this court in many cases which dealt with judicial review of similar administrative bodies. In Foote we considered the less specific judicial review provisions of K. S. A. 65-2848. The expressions of this court in many cases involving judicial review were noted and we said:
“Rules firmly emerging from this line of authority may be summarized thus: A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, the tribunal acted fraudulently, arbitrarily or capriciously, whether the administrative order is substantially supported by evidence, and whether the tribunal’s action was within the scope of its authority.” (p. 450.)
In Foote we also observed that the business of licensing is an administrative or legislative function, as distinguished from, judicial.
Also, this court has said in many cases involving judicial review of administrative orders that an administrative body such as appellant board cannot be the final judge of the reasonableness of its own orders; and while not permitted to substitute their judgment for that of the administrative body, courts are, nevertheless, charged with the solemn duty of determining whether the procedure employed in reaching the decision, or whether the decision itself as rendered was unreasonable, arbitrary, unlawful or oppressive under the circumstances of each particular case. Although an administrative body such as appellant board has wide discretion in determining its judgments, particularly in the area of licensing, such discretion cannot be abused and must actually be exercised in view of all, and not merely some, of the circumstances involved. (See, Marks v. Frantz, supra, and cases cited therein.)
We should further note that in reviewing a district court’s judgment in such a case, this court, for the purposes of determining whether the district court observed the requirements and restrictions placed upon it, makes the same review of the action of the administrative body as does the district court. (Morra v. State Board of Examiners of Psychologists, supra.)
With the framework for our review thus established, we turn to the issues to be decided. The critical question is whether the appellee’s negligence in failing to make application for a renewal of her license can be said to be “unprofessional conduct” the sole statutory ground of the seven enumerated in K. S. A. 65-1120, upon which the board based its order of suspension.
The gist of the charge filed against appellee is that she wilfully and knowingly practiced her profession after December 31, 1970, after her license for the year 1970 had expired and did so engage in the practice of nursing in violation of the provisions of K. S. A. 65-1122 (b), and by reason thereof is guilty of unprofessional conduct. The substance of the board’s findings is that appellee “should have been aware of her own legal status” and that she has failed to assume personal responsibility for maintaining a current license. The board concluded that these acts constituted unprofessional conduct. The board’s position appears to be that appellee’s failure to be aware of her owm legal status is the equivalent of intentional and deliberate practice of musing without a license, rather than merely negligence. The trial court found to the contrary and we are constrained to agree. A finding that appellee should have been “aware” of her legal status does not rise to the generally accepted concept of wilful conduct. While wilful has been said to be a word of many meanings depending on the context in which it is used, it generally connotates proceeding from a conscious motion of the will — an act as being designed or intentional as opposed to one accidental or involuntary. (Blacks Law Dictionary [4th Ed.]) In Anderson, Administrator v. White, 210 Kan. 18, 499 P. 2d 1056, this court said:
“. . . Willful conduct is action indicating a design, purpose or intent on the part of a person to do wrong or to cause an injury to another. . . .” (p. 19.)
In considering wilful, as used in the workmen’s compensation act, in Bersch v. Morris & Co., 106 Kan. 800, 189 Pac. 934, this court said:
“. . . the word 'willful/ as used in the statute, includes the element of intractableness, the headstrong disposition to act by the rule of contradiction. Such is a general and popular signification of the term.” (p. 804.)
We are unable to construe the board’s findings as amounting to wilfulness on the part of appellee. This leads to the question — does appellee’s negligence in her record keeping with respect to her license amount to unprofessional conduct? The nursing act does not define unprofessional conduct as does the healing arts act (K. S. A. 65-2837), nor does it specify failure to renew a license as a ground for suspension of a license as provided in K. S. A. 65-2836 (/) of the healing arts act. Instead of specifying failure to pay annual renewal fees as a ground for suspension, as in the healing arts act, the nursing act, in the last paragraph of 65-1117, specifically provides procedure for the reinstatement of a license which has lapsed because of failure to renew within the time specified. The omission or the failure to renew a license as one of the grounds for suspension enumerated in K. S. A. 65-1120, coupled with the specific provisions for renewal of a lapsed license in 65-1117, and the labeling, as a misdemeanor, the practice of nursing without a license in 65-1122, leads to the conclusion that the legislature did not intend that the negligent failure to renew be treated as a ground for suspension. If the legislature had intended that the failure to perform the clerical function of renewing a license should constitute unprofessional conduct it could have easily structured the nursing act to precisely reflect this intent. Likewise, if the legislature had intended such failure to constitute a ground for suspension it could have so provided as it did in the healing arts act.
Our holding herein is not to be construed as restricting the board’s considerable leeway in formulating standards of conduct for members of the profession in measuring unprofessional conduct. The five members of the board are required to be licensed professional nurses, with five years experience in their profession (K. S. A. 1974 Supp. 74-1106 [b]). It is to be expected the legislature would intend to vest in a board made up of experienced members of the profession a certain amount of leeway in formulating standards of professional conduct relating to competency, proficiency and responsibility in the practice of the profession. Although the board was authorized to examine the qualifications and competency of appellee when considering her application for renewal of her lapsed license, no question was raised in this regard.
The board argues the trial court erred in failing to adopt the definition of unprofessional conduct set forth in Foote:
“Unprofessional conduct” is conduct which violates those standards of professional behavior which through professional experience have become established, by the consensus of the expert opinion of the members, as reasonably necessary for the protection of the public interest.’” (p. 454.) (Quotation from Reyburn v. Minnesota State Board of Optometry, 247 Minn. 520, 78 N. W. 2d 351 [pp. 523-534].)
In support of its position in this regard, the board argues that a nurse who practices without renewing her license is guilty of conduct that is likely to jeopardize the interest of the public and is, therefore, guilty of unprofessional conduct.
In Foote the state board of healing arts sought to revoke the license of Dr. Foote to practice medicine, not because of clerical error he might have made in failing to- renew it, but, rather, because he had negligently and incompetently handled a number of surgery cases. The thrust of the Foote decision is that it is the function of the board of healing arts to protect the public against incompetent medical practitioners. We think it inappropriate to construe Foote as giving die board, in the instant case, authority under the nursing act to preclude appellee from practicing her profession simply because she had been negligent in her record keeping. There is no evidence to establish that appellee was unprofessional in any way about the practice of nursing.
Finally, the board asserts that it was error for the trial court to substitute its opinion for that of the board. On this point this court has spoken in precise language. In Kansas State Board of Healing Arts v. Foote, supra, we held:
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.” (Syl. ¶ 1.)
See, also, Marks v. Frantz, supra; Hukle v. City of Kansas City, 212 Kan. 627, 512 P. 2d 457; and Moora v. State Board of Examiners of Psychologists, supra.
We reaffirm the above quoted standards of judicial review, but this is not a substitution of judgment case. The trial court, as a matter of law, based upon the undisputed facts and within the context of the nursing act determined that the appellee’s failure to renew her license was something less than unprofessional conduct, i. e., merely negligence in a clerical matter which was unrelated to the practice of nursing in her professional capacity.
The judgment is affirmed.
Fromme, J., dissenting.
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The opinion of the court was delivered by
Prager, J.:
The issue to be determined in this case is whether the widow of a member of the Kansas Public Employees Retirement System is entitled to recover interest on accidental death benefits wrongfully withheld by the system. The appellant-plaintiff is June A. Shapiro, the widow of Roy Shapiro who- was employed by the state of Kansas in the position of state controller. We will refer to her in this opinion as the plaintiff. The appellee-defendant is the Kansas Public Employees Retirement System which will be referred to as KPERS. This case was before this court on appeal in Shapiro v. Kansas Public Employees Retirement System, 211 Kan. 452, 507 P. 2d 281. There we affirmed the judgment of the district court granting accidental death benefits to Mrs. Shapiro. The facts and circumstances pertaining to the relationship of the parties and the obligation of KPERS to pay accidental death benefits are discussed fully in that opinion. Following the affirmance of the judgment of the district court KPERS made payment to the plaintiff in the amount of $45,636.30 which represented all accumulated benefits due and owing from and after May 29, 1967, the date of Mr. Shapiro’s death.
Following the entry of judgment plaintiff made demand upon KPERS for interest on the death benefits during the period they were wrongfully withheld by KPERS. Upon refusal of this demand plaintiff filed a motion in the district court for such interest. This motion was denied by the district court and the matter is now here on appeal. The plaintiff claims interest at the statutory rate of six percent from the date of Mr. Shapiro’s death to the date of judgment and at eight percent from the date of judgment to the date the death benefits were paid in full. The determination of the amount of interest is simply a matter of mathematical calculation which is not in dispute. The sole question for our determination is whether the district court erred in denying interest to the plaintiff for the period dining which the accidental death benefits were wrongfully withheld.
The plaintiff argues on this appeal that where a liquidated obligation becomes due and payable and payment is withheld, a creditor is entitled to recover interest as a matter of right. In the absence of an agreed rate of interest, interest at the rate of six percent per annum accrues until the obligation is fully paid. (K. S. A. 16-201.) Plaintiff further contends that where a liquidated sum is due under an express contract, the statute is applicable and interest is recoverable from the date the debt becomes due. (Kansas Power & Light Co. v. Hugoton Production Co., 251 F. 2d 946 [10th Cir., 1958]; Potts v. Lux, 168 Kan. 387, 214 P. 2d 277; Smart v. Hardware Dealers Mutual Fire Insurance Co., 181 F. Supp. 575.) The plaintiff then points out that state retirement systems create contracts between the state and its employees who are members of the system. (Ogden et al., Aplnts. v. Pub. Sch. Em. Ret. Bd., 198 Pa. Sup. 174, 182 A. 2d 228.) Under the KPERS system employees of the state and other political subdivisions make monthly contributions in exchange for promised pensions and survivors benefits upon the death or retirement of the member. Hence, it is argued, a contractual obligation arises on the part of the system to make the promised payments. The statutory provisions for pensions and survivors benefits constitute a contract between the system and its members. Plaintiff takes the position that when payments due and owing under the contract are wrongfully withheld and where they are liquidated sums, the member is entitled to interest prior to judgment as a matter of right at the rate of six percent per annum in accordance with K. S. A. 16-201. Following entry of judgment interest at the rate of eight percent per annum accrues under the express provisions of K. S. A. 16-204.
KPERS on this appeal relies primarily upon Brown v. State Highway Commission, 206 Kan. 49, 476 P. 2d 233, where we held that the heirs of a person whose death resulted from a defect in a state highway were not entitled to recover interest on a judgment rendered against the state highway commission in an action brought under the provisions of K. S. A. 68-419. The rationale of the decision in Brown was based upon the doctrine of sovereign immunity. We reasoned that since the state cannot otherwise be sued in tort, its liability for damages resulting from highway defects is purely statutory and that statutes waiving sovereign immunity must be strictly construed. We stated that a statute which in general terms provides for the payment of interest does not apply to the state unless it expressly so provides. We concluded that the general interest statute K. S. A. 16-204, providing in substance that all judgments shall bear interest from the date they are rendered, has no application to a judgment against the state based upon a claim of liability of the State Highway Commission for a defective highway under K. S. A. 68-419.
We have concluded that Brown does not control the right of the plaintiff to recover interest under the circumstances shown in this case for the reason that the doctrine of sovereign immunity should not apply to a claim based upon the breach of an express contract made by KPERS with its members to pay accidental death benefits. By statute KPERS was created a “body corporate” (74-4903) and was given the status of a distinct legal entity which can sue and be sued in its official name. (74-4904.) It has been granted broad powers to carry out the purposes and intentions of the act including the power to contract both with the state (74-4909) and with others. (74-4903.) The statute provides that a members rights in the system shall become vested after ten years credited service. (74-4917 [2].) Various statutes require the allowance of interest on moneys paid into an individual member’s account. (74-4902 [1] and [7]; 74-4968; 74-4919; 74-4922 [1] [a], [c], and [d].) In view of these provisions we think it obvious that the legislature has given its consent that KPERS may be sued on contracts made in relation to performing its powers, duties, and responsibilities under the pertinent statutes. Under similar statutory provisions we have held that the State Highway Commission is liable for its contracts and may be sued thereon. (McCandliss Construction Co. v. Neosho County Comm’rs., 132 Kan. 651, 296 Pac. 720; Atchison v. State Highway Comm., 161 Kan. 661, 171 P. 2d 287; Kiewit & Sons’ Co. v. State Highway Comm., 184 Kan. 737, 339 P. 2d 267; Sanders v. State Highway Commission, 211 Kan. 776, 508 P. 2d 981.)
KPERS does not contest the right of a member to bring an action against it to enforce the members beneficial rights in the system. The problem presented here is whether KPERS may avoid the payment of interest where it wrongfully withholds benefits from a member or his beneficiaries. In a number of past decisions we have held that under the doctrine of sovereign immunity a county is not liable for interest on its obligations, unless some statute expressly so provides. (Jackson County v. Kaul., 77 Kan. 715, 96 Pac. 45; Salthouse v. McPherson County., 115 Kan. 668, 224 Pac. 70; School District v. Kingman County Comm’rs., 127 Kan. 292, 273 Pac. 427; First Nat’l Bank v. Wabaunsee County Comm’rs, 145 Kan. 552, 66 P. 2d 558; Brown v. State Highway Commission, supra.) The rule which precludes a contracting party from recovering interest from the state or one of its political subdivisions in actions brought for breach of an express contract is based in part on a rule of the common law that the charging of interest is ipso facto abhorrent to morals and religion. From the earliest times the term “usury” was synonymous with the term “interest”, and meant the taking of any compensation whatever for the use of money. Later it became recognized that the charging of interest is a vital necessity to develop commerce and trade in a free society. An excellent, comprehensive discussion on the history of interest is contained in Marshall v. Beeler., 104 Kan. 32, 178 Pac. 245.
The antipathy toward the allowance of interest was also expressed in the concept that the state or a governmental body should not be required to pay interest on its contractual obligations unless it has expressly agreed to do so or unless it is required to do so by statute. The theory of the rule is that the sovereign is different from other litigants and always fair. It is a carryover from the theory “that the king can do no wrong.” The reason for the rule was stated by the courts to be that “the government is presumed to be always ready to pay, and it would be against public policy to declare it otherwise.” (Milwaukee v. Firemen Relief Asso., 42 Wis. 2d 23, 165 N. W. 2d 384.) We believe that the theory that a rule of law requiring government to pay interest is by implication a slander that the sovereign does not meet its obligations is not based upon sound factual grounds and cannot be taken seriously today. It needs no documentation to assert that the sovereign on occasion, willfully or not, does do a wrong, and in its dealings with its citizens is not infrequently subject to criticism by the public and correction by the courts. The common-law rule that the state should not be required to pay interest on its just debts is untenable in our times. In our judgment the loss of the use of money, whether occasioned by the delay or default of an ordinary citizen or of the state or one of its political subdivisions, ought to be compensated. This is especially true in those situations where the state has agreed by an express contract to pay retirement and death benefits to its employees and where it has been found to have wrongfully withheld the same. We see no justice in a rule which permits the state to retain for its use without interest money which it was legally obligated to pay over to a widow for her support.
Where the state legislature has consented that one of its agencies may be sued on its express contracts, the waiver of sovereign immunity should extend to every aspect of its contractual liability including the right of the other contracting party to recover interest where it is customarily included as a part of the damages to be awarded for breach of contract. As we stated in Carroll v. Kittle, 203 Kan. 841, 457 P. 2d 21, if the government is to enter into business ordinarily reserved to the field of private enterprise, it should be held to the same responsibilities and liabilities.
Interest has been defined as the compensation allowed by law or fixed by the parties for the use, detention, or forbearance of money. In our society today money is a commodity with a legitimate price on the market and loss of its use, whether occasioned by the delay or default of an ordinary corporation, citizen, state or municipality should be compensable.
In this case the plaintiff’s husband during his lifetime made regular and continuous contributions to KPERS in consideration of which KPERS promised to pay specific benefits upon his death or retirement. A member of KPERS or his beneficiary should be provided the same protection and the same redress as if the breach of contract had been committed by a private insurance company. Interest chargeable as additional compensation for detention of a liquidated sum has traditionally been a part of the damages to be awarded for breach of contract. Since the state legislature has expressly provided that KPERS may be sued on its contractual obligations it seems to us that basic principles of justice require that interest should be allowed as a proper element of damages for its breach of contract. (State Highway Comm. v. Wunderlich, 194 Miss. 119, 11 So. 2d 437.)
We have not overlooked the fact that in 1973 the legislature amended K. S. A. 16-204 to read as follows:
“16-204. Judgments; time and rate. All judgments of courts of this state, including judgments rendered on or after the effective date of this act against the state or any of its agencies or any city, county, school district or other political subdivision of the state, shall bear interest from the day on which they are rendered, at the rate of eight percent (8%) per annum, except as otherwise provided.”
Although the statute is restricted to judgments rendered against the state on or after July 1, 1973, it does not expressly preclude the allowance of interest on claims or judgments based upon a liability of the state or its agencies arising from the breach of an express contract prior to that date.
For the reasons set forth above the judgment of the district court is reversed and the case is'remanded with instructions to determine the proper amount of interest which should be allowed on the accidental death benefits wrongfully withheld by KPERS from the time such benefits should have been paid until they were actually paid.
Fontron, J., dissenting.
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The opinion of the court was delivered by
Owsley, J.:
This appeal arises from an action brought by appellee, Atlas Industries, Inc. (Atlas), for the recovery of the purchase price of an accounting machine and accounting system allegedly sold to it by appellant, National Cash Register Company (NCR), through its agent, Harvey Scott. The trial court awarded damages to Atlas in the amount of $5,655.73 based upon the breach of both express and implied warranties. NCR argues the trial court erred in finding that it sold the machine and system in question to Atlas, when in fact it sold the machine to a third party, United States Leasing Company (U. S. Leasing), which in turn leased it to Atlas. Based on these facts NCR contends the transaction does not fall within the scope of Article 2 of the Uniform Commercial Code, and accordingly is barred by the statute of limitations for oral contract actions. (K. S- A. 60-512.)
Atlas, originally doing business under the name of McCulleyCook, Inc., is a small Kansas corporation engaged in the prefabrication of steel buildings. During the summer of 1967 Atlas decided its business needs were such as to require a more sophisticated accounting system than the simple hand accounting system it was then using. Cbnsequently, the board of directors of Atlas decided to explore the possibility of setting up a machine accounting system.
Soon thereafter Atlas contacted Harvey Scott, a sales representative of NCR, in regard to' the acquistion of a suitable accounting system. A demonstration meeting was held in July of 1967 at which time Scott recommended a Model 33 accounting machine and a system based upon an analysis of Atlas’ current system of accounting and its future needs. Present at this meeting in addition to Scott were Lee McCulley, president of Atlas; Richard Lowry, attorney-accountant for Atlas; and Ethel Jones, Atlas’ bookkeeper. Whereas Scott had been company-trained in accounting, and by his own testimony was an expert in the field, none of the representatives of Atlas possessed such knowledge of accounting and they had to rely substantially on Scott’s representations and recommendations.
One week later McCulley informed Scott that Atlas could not afford such an expensive machine. As an alternative Scott suggested that Atlas purchase a used machine which had been factory reconditioned and would cost only half as much. The record indi cates Scott represented to McCulley that the used machine would be capable of doing the same job as the Model 33 he had demonstrated earlier. Based on these representations an agreement was reached.
Instead of purchasing the machine directly from NCR, however, Atlas agreed to a lease plan whereby NCR sold the machine to a separate and independent company, U. S. Leasing, which in turn “leased” the machine to Atlas. This type of equipment-leasing arrangement has become common in recent years due to the beneficial tax aspects and the avoidance of the large initial capital outlay otherwise necessary in the purchase of expensive equipment. Through this device a user of goods is able to obtain sole and exclusive use of equipment for a period of time economically beneficial to it. In effect, the leasing company operates as a financing agency for the transaction, with the lessee paying the equivalent to the full purchase price plus interest. The supplier, in this case NCR, gets the benefit of a sale without the burden of having to extend credit.
Under the lease plan NCR had Atlas sign what was denoted as an “Equipment Order and Retail Installment Contract” in which Atlas was referred to as the retail buyer and NCR was aligned as the seller. According to the testimony of Scott, the plan required the customer, Atlas, to pay two or three months’ “rent” in advance to NCR, and the contract was sent to U. S. Leasing, a California corporation. U. S. Leasing then either accepted or rejected the customer. If it accepted, as here, it issued a “purchase order” to the supplier for the equipment and leased it to the customer.
Atlas entered into the leasing agreement on or about October 18, 1967, with U. S. Leasing, to lease from said company the accounting machine identified in the retail installment contract. The agreement was termed a lease, and referred to Atlas as lessee and U. S. Leasing as lessor. It provided for sixty monthly payments of $124.43, or a total payment of $7,465.80. The total cost of equipment to the lessor was $5,655.73, which included a sales tax of $164.73. The terms and conditions of the lease included a disclaimer by lessor of any warranty, express or implied, as to any matter whatsoever. The lease specifically stated that no defect or unfitness of the equipment would relieve the lessee of the obligation to pay rent. A provision was included, however, which required the lessor to place a condition in the purchase order authorizing the lessee to enforce in its own name all warranties, agreements and representations which were made by the supplier to the lessee. In accordance with that requirement such a condition was included in the purchase order contract between NCR and U. S. Leasing. Renewal terms of one year each for a maximum of nine years at the option of lessee were at an annual rate of $124.43 (the amount of monthly payments under the original term). In lieu of renewal, lessee had the obligation of returning the equipment, at its expense, to lessor.
NCR began installing the accounting machine soon after the contracts were executed, but, according to the testimony of Scott, installation was not completed until almost one year later.
Atlas continued to make rental payments to> U, S. Leasing until about October 1, 1971. At that time it refused to make further payments, claiming the machine had innumerable mechanical difficulties and that NCR had failed to perform the services and furnish the materials as represented by its agent. U. S. Leasing subsequently sued Atlas for nonpayment of the monthly rentals and an out-of-court settlement was reached requiring Atlas to pay U. S. Leasing the total cost of the machine, $5,655.73.
On October 19, 1971, Adas filed suit against Scott and NCR, alleging Scott had enticed and encouraged it to enter into the leasing agreement with U. S. Leasing; that as part of the transaction NCR represented and warranted it would furnish all necessary forms and charts of account, would redesign Atlas’ bookkeeping system, and would retrain Atlas’ personnel in the operations of said machinery and equipment; that NCR further represented and warranted the machinery would be sufficient to handle Atlas’ bookkeeping and accounting requirements up to $4,000,000 per annum in sales; but that despite these obligations NCR wholly failed to perform as represented and the system failed to work as promised.
On November 2, 1973, the trial court found generally in favor of Atlas, and specifically that “the warranties, both statutory and implied, written and oral, . . . were breached.” The court further found the machine and system furnished and “sold” by NCR to Atlas did not operate in accordance with the recommendations and representations given by its agent, Harvey Scott. In accordance with those findings, Atlas was awarded damages in the sum of $5,655.73.
NCR contends on appeal that the trial court erred in failing to find Atlas’ cause of action was barred by the statute of limitations. The contention is based on the application of K. S. A. 60-512 (three-year provision of the Civil Code) rather than K. S. A. 84-2-725 (four- year provision of the Uniform Commercial Code). NCR argues application of the three-year statute is proper since the four-year statute applies only to “contracts for sale” and the facts disclose no sale arrangement between the parties to this action. NCR also contends that even if the four-year statute of limitations is applicable a disclaimer is contained in the equipment order limiting liability of NCR to six months after delivery against defects in material, workmanship and operational failure from ordinary use, and further limiting liability to correcting the defect or failure.
The threshold question concerns the nature of the relationship between Atlas and NCR, and whether under the facts and circumstances of this case the transaction is subject to the provisions of the U. C. C. If it is, the limitation of actions and the disclaimer provisions of the U. C. C. must be applied and tested. A search of case law relating to similar factual situations reveals several cases involving litigation between the lessor and the lessee (in this case U. S. Leasing and Atlas). A typical case is Sawyer, etc. v. Pioneer Leasing Corp., 244 Ark. 943, 428 S. W. 2d 46, reh. den. 244 Ark. 962A, 430 S. W. 2d 457, which held in an action between lessor and lessee under facts similar to those in the instant case that 2-316 (2) is applicable to leases where the provisions of the lease are analogous to a sale.
Another cáseas Hertz Corp. v. Trans. Credit House, 59 Misc. 2d 226, 298 N. Y. S. 2d 392 (revd on other grounds, 64 Misc. 2d 910, 316 N. Y. S. 2d 585), which held in a like situation that an equipment lease was subject to Article 2 of the U. C. C., and particularly the disclaimer of warranty provision of 2-316. Noting the great volume of commercial transactions which are entered into by the device of a lease rather than a sale, the court reasoned that it would be anomalous if such a large body of commercial transactions were subject to different rules of law than other transactions which tend to have the identical economic result. To the same effect is Fairfield Lease Corp. v. Commodore Cosmetique, Inc., 7 U. C. C. Rep. 164 (N. Y. C. Civ. Ct. 1969), and KLPR TV, Inc. v. Visual Electronics Corporation, 327 F. Supp. 315 (D. C. Ark. 1971).
Two recent cases from the courts of New York State have taken a contrary view as to the status of the ‘lessor” and classified the lease agreement as a “title retention contract and lease intended as a security.” In Leasco Data Proc. v. Starline, 74 Misc. 2d 898, 346 N. Y. S. 2d 288, the court said:
“Plaintiff and defendant, two corporate entities, dealing at arm’s length through officers and agents (presumably well advised, alert, knowledgeable businessmen) negotiated a written contract which by its terms required plaintiff to purchase a defendant-specified, sophisticated billing machine from a defendant-designated seller of such machines and lease it to defendant for five years and five months at a fixed monthly rental of $274.20 to be paid by defendant, with the option to defendant of renewing the lease at its expiration for a nominal yearly rental of $274.20, the same amount as the monthly rental during the term. . . .
“A proper construction of the written leasing agreement must find it to be a ‘title retention contract and lease . . . intended as security’ within the meaning of subdivision (2) of section 9-102 of the Uniform Commercial Code, designed to afford defendant the advantage of having the possession and use of its own free choice of a particular machine throughout its usable expectancy, by means of long-term installment payments of $274.20 per month without the large, initial outlay of $13,710 necessary to outright purchase.
“Subdivision (37) of section 1-201 of the Uniform Commercial Code defines ‘security interest’ as ‘an interest in personal property . . . which secures payment . . . of an obligation.’ And goes on to say ‘whether a lease is intended .as security is to be determined by the facts of each case; however . . . an agreement that upon compliance with the terms of the lease the lessee . . . has the option to become the owner of the property . . . for a nominal consideration does make the lease one intended for security.’
“Article 2 of the Uniform Commercial Code (Sales), at section 2-102, expressly excludes from the application of its provisions (Uniform Commercial Code, § 2-101 to and including § 2-725) ‘any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction.’ ” (pp. 899, 900, 901.)
A more detailed statement as to reasons for finding a “lease agreement” to be a security agreement is found in In re Sherwood Diversified Services, Inc., 382 F. Supp. 1359, (S. D. N. Y. 1974). The court said:
“Sherwood, if acting as a financing agency, would not be considered a buyer or seller of the goods. The pivotal issue, then, is to determine whether Sherwood was acting as a financing agency or as a seller. This Court agrees with the Bankruptcy Judge that the proper method for analyzing the transactions in question is to ‘look through’ the form of the agreement and to examine the intent of the parties and the facts and circumstances which existed at the time of the agreements. Pursuant to this approach, the following factors become pertinent: (1) the equipment ordered by the purchaser-lessees was shipped directly to them by the manufacturer-vendors; (2) Sherwood would remit the full sales price plus any applicable sales tax to the manufacturer-vendors; (3) the purchaser-lessees had often placed purchase orders with the manufacturers-vendors prior to approaching Sherwood for financing; (4) Sherwood did not select or inspect any of the equipment; (5) the lessees were given options to purchase the equipment for nominal sums, usually from $1.00 to $10.00; (6) U. C. C. financing statements were executed and delivered to the lessees and filed by Sherwood; (7) the agreements were almost always discounted with a bank or other lending institution; (8) the monthly payments under the lease were calculated to return to Sherwood the purchase price, sales tax, interest and filing fees; (9) Sherwood does not maintain a warehouse for the storage of machinery and equipment; (10) Sherwood did not carry the leased property as assets on its books but rather as accounts receivable; (11) Sherwood did not take any depreciation deductions on the equipment; and (12) Sherwood has never taken possession of any of the leased equipment at the end of the leased term.
“The combined effect of these factors supports not only the conclusion that the equipment lease transactions were security agreements, but also the fact that Sherwood was a ‘financing agency’ and not a ‘seller’ of the equipment. . . .” (pp. 1363, 1364.)
In the instant case three documents were executed which must be considered and construed in order to determine the relationship between the parties. The first was entitled “Equipment Order and Retail Installment Contract.” This document was executed by both Atlas and NCR, as well as by U. S. Leasing. We should note that both Atlas and U. S. Leasing were listed as purchasers. The document also contained the six-months disclaimer provision herein-before mentioned.
The second document, entitled “Purchase Order,” was signed by U. S. Leasing and referred to NCR as supplier of equipment. This document provided that NCR would comply with all warranties, agreements and representations made by it to lessee Atlas; and NCR agreed that all warranties, agreements and representations made by it to Atlas and to U. S. Leasing would be fully enforceable by U. S. Leasing or by Atlas in its own name.
The third document is identified as a “Lease” and lists Atlas as lessee, U. S. Leasing as lessor, and NCR as supplier of equipment. The lease provided U. S. Leasing would include as a condition of its purchase order that NCR would authorize Atlas to enforce in its own name all warranties, agreements, and representations, if any, which were made by NCR to Atlas or to U. S. Leasing, and that U. S. Leasing made no express or implied warranties as to any matter, including fitness for any particular purpose. It appears from the copy of the lease shown in the record that NCR did not sign this document.
It is a well settled principle of law that where two or more documents are executed by the same parties at or near the same time in the course of the same transaction and concern the same subject matter they will be read and construed together. (Topeka Savings Association v. Beck, 199 Kan. 272, 428 P. 2d 779.) This rule should also apply if the parties involved comply with the provisions of interrelated documents although one of the documents was not executed by a party to the transaction. Construction of the involved documents is also subject to the rule that the true nature and character of a document is not determined by the name attached thereto but by the intent of the parties as reflected by the terms or the contents thereof. (Atwell v. Maxwell Bridge Co., 196 Kan. 219, 409 P. 2d 994.) It follows that the three described documents should be read and construed together and although the third document is called a lease its true nature and character should be determined by the intent of the parties as reflected by its terms and conditions.
Extensive research fails to disclose any cases involving disputes between the lessee (here Atlas) and the supplier (here NCR). In order to determine the relationship between Atlas and NCR it is necessary to determine the relationship between Atlas and U. S. Leasing. Rased on the general rules of construction and the reasoning of the cases cited herein, we conclude U. S. Leasing was a financing agency and as such held a security interest in the subject matter of the transaction. This conclusion is based on the following: (a) The equipment ordered was shipped and installed by NCR; (b) U. S. Leasing did not select or inspect the equipment; (c) U. S. Leasing was not a manufacturer or dealer in like equipment; ( d) the monthly payments under the lease were calculated to return to U. S. Leasing the purchase price, sales tax, and interest; (e) is was not contemplated the equipment would be returned to- U. S. Leasing; and (†) the renewal rental was for a nominal amount and extended to a period beyond the usable life of the equipment.
A realistic approach to the role played by NCR in this transaction results in the conclusion that NCR was the seller. The record clearly discloses NCR dealt in accounting machines and solicited purchasers through its sales force. The designation of the parties to this lawsuit as buyer and seller is in harmony with those provisions of the written instruments involved, fixing responsibility of NCR for all warranties made to Atlas. The only deterrent in designating NCR as seller was the possibility that we would be required to assign the role of seller to U. S. Leasing. Having eliminated U. S. Leasing from that role, we are free to designate NCR as seller. In these circumstances we conclude the provisions of the U. C. C. are applicable to this transaction, including 2-725 (four-year statute of limitations) and 2-316 (2) (disclaimer of warranties).
Having determined that Article 2 of the U. C. C. applies to the present transaction, we are left with the question of whether suit was brought within four years after the cause of action accrued. Subsection (2) provides that a cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. Furthermore, the subsection provides that a breach of warranty occurs when “tender of delivery” is made, with the exception that if the warranty explicitly extends to future performance of the goods the cause of action accrues when the breach is or should have been discovered.
Under the facts and circumstances of this case we conclude that tender of delivery of the accounting machine, sold to Atlas by NCR and installed by NCR in Atlas’ plant, did not occur until installation of the machine was completed. Scott testified it took approximately six months to complete the installation. By his own admission, “[i]t was in March or April of 1968 before the machine was completely installed and operational.” The record shows Atlas instituted the present action on October 19, 1971, within four years of the date of installation. This result is consistent with the intent of 2-725 and recent cases considering this issue. (Val Decker Packing Co. v. Corn Products Sales Co., 411 F. 2d 850 [6th Cir. 1969].)
NCR argues that even if we decide the four-year statute of limitations governs, the warranties in the transaction were limited to those contained in the agreement, and the agreement takes precedence over any oral or implied warranties. NCR is referring to the provision in the “Equipment Order and Retail Installment Contract” which limits NCR’s liability to defects in material, workmanship and operational failure from ordinary use during a period of six months after delivery. Examination of the disclaimer discloses no effort to make it conspicuous; in fact, the provision for disclaimer is in much smaller type than the other provisions of the contract. K. S. A. 84-2-316 (2) provides that in order to “exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.” See also Christopher & Son v. Kansas Paint & Color Co., 215 Kan. 185, 523 P. 2d 709.
NCR argues this action was not based on an implied warranty and the requirement that the disclaimer be “conspicuous” is not applicable. The petition alleges NCR warranted the equipment would be sufficient to handle the bookkeeping and accounting requirements of the business. Such an allegation could be supported by either an oral express warranty or by an implied warranty of fitness as set forth in 2-315. We see no merit in NCR’s claim that Atlas cannot rely on an implied warranty. Discovery in its broadest scope is available under the code of civil procedure. The need for technical pleading has vanished. We now require only a bare bones pleading which outlines the nature of the claim. (Gard, Kansas Code of Civil Procedure Annotated, § 60-208 [a], p. 31.)
Under the facts and circumstances of this case, and for the reasons herein stated, we conclude the transaction herein described is subject to the provisions of the U. C. C. and resulted in a buyer-seller relationship between Atlas and NCR with a security interest in U. S. Leasing.
The judgment is affirmed.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from an order of the district court denying defendant Danny Joe Wisner’s motion for post-conviction relief, filed pursuant to K. S. A. 60-1507. Defendant was convicted by a jury of rape in violation of K. S. A. 21-3502, and sentenced to a term of not less than five years nor more than twenty years.
In the information filed by the state, defendant was charged with the crime of aggravated kidnapping. After presentation of the evidence the trial court instructed the jury that the crime of rape was a lesser included offense of the crime of aggravated kidnapping. The jury returned the verdict of guilty tn the offense of rape.
Defendant rightfully contends that an accused is denied due process of law when he is convicted in a criminal action based upon a charge not made in the information. Procedural due process requires that a defendant have notice of a specific charge so that he has an opportunity to defend himself and be heard on trial of the issues raised by that charge. (Cole v. Arkansas, 333 U. S. 196, 92 L. Ed. 644, 68 S. Ct. 514.) In a criminal action the information or indictment is the jurisdictional instrument upon which the accused stands and it follows that a judgment of conviction for an offense not charged in the information is void for lack of jurisdiction of the subject matter. (State v. Minor, 197 Kan. 296, 416 P. 2d 724; Dejonge v. Oregon, 299 U. S. 353, 81 L. Ed. 278, 57 S. Ct. 255.)
The constitutional right of the criminal defendant to be given notice of the charges against him does not prohibit the conviction of one found guilty of a lesser included offense of the crime charged in the information. It is reasoned that in the case of an included crime, the notice and charge on the greater offense as a matter of law includes notice of the included offense. (Geitner v. State, 59 Wis. 2d 128, 207 N. W. 2d 837.)
In accordance with these principles, K. S. A. 21-3107 (2) permits a defendant to be convicted of either the crime charged or of an included crime, but not both. A lesser included crime is defined in 21-3107 (2) as any of the following:
“(a) A lesser degree of the same crime;
“(b) An attempt to commit the crime charged;
“(c) An attempt to commit a lesser degree of .the crime charged; or
“(d) A crime necessarily proved if the crime charged were proved.”
In overruling defendant’s motion to set aside and vacate the judgment, the district court relied upon pro-vision (d) of that subseotion to support its conclusion that the trial court did not err in instructing the jury that rape is a lesser included offense of aggravated kidnapping. In so doing, we conclude the district court misconstrued the applicable statutory provision and prior cases defining a lesser included offense.
A trial court’s duty to instruct as to any lesser included offense is spelled out in K. S. A. 21-3107 (3). That subsection merely codified the existing law as expressed in State v. Fouts, 169 Kan. 686, 221 P. 2d 841. In substance, it provides the trial court has a duty to instruct the jury as to all lesser included crimes of which the accused might be found guilty “under the information of indictment and upon the evidence adduced.”
Based on these statutory directives the state argues the trial court was justified in ruling that rape is a lesser included offense of aggravated kidnapping. The state contends the controlling factor in construing 21-3107 (3) is the consideration of the evidence adduced at trial, rather than the elements of the charge in the information or indictment. The state cites the case of State v. Brown, 181 Kan. 375, 312 P. 2d 832, for the proposition that forcible rape itself constitutes bodily harm. This being true, it argues the reference to bodily harm in the aggravated kidnapping charge necessarily refers to rape. In effect, the state’s contention is that rape is the equivalent of bodily harm and as a consequence it is a lesser crime of aggravated kidnapping.
On the other hand, defendant contends the lesser included offense of rape was not one of which the accused might be found guilty under the information. It is the argument of defendant that “under the information” as used in 21-3107 (3), means the greater offense must contain all the elements of the lesser to be considered a lesser included offense.
In State v. Woods, 214 Kan. 739, 522 P. 2d 967, we stated the test to be that if a lesser offense is to be considered a lesser included offense under the law, all elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged. Under this test, if the lesser offense requires proof of an element not necessary in the greater, the court should not instruct the jury that the defendant can be found guilty of the lesser offense.
The trial court in its instructions to the jury set out the elements of aggravated kidnapping and rape:
“Aggravated kidnapping is kidnapping, as defined in Section 21-3420, when bodily harm is inflicted upon the person kidnapped. The latter statute defines kidnapping as the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person and to inflict bodily injury or to terrorize the victim of another.
“If you find from the evidence beyond a reasonable doubt that the defendant committed .an act of sexual intercourse with Jeri Luriee Flinn, a woman not his wife, and without her consent when her resistance was overcome by force or fear, then you may find the defendant guilty of rape.”
While it is true that the state offered evidence of rape in the instant case to provide the factual element of “bodily harm” required by aggravated kidnapping, it is clear that rape is not a necessary element of the greater offense of aggravated kidnapping. For a lesser offense to be necessarily included in the offense charged it must be such that the greater offense cannot be committed without also committing the lesser. Obviously, it is possible to commit aggravated kidnapping without committing rape. The act of sexual intercourse is not a necessary element of aggravated kidnapping. (State v. Schriner, 215 Kan. 86, 523 P. 2d 703; Sharp v. State, 203 Kan. 937, 457 P. 2d 14; State v. Brown, supra.)
Accordingly, in the present case the trial court erred in instructing the jury that rape was a lesser included offense of the crime of aggravated kidnapping. This conclusion is not only consistent with the law of this state, but it is also in accord with, the law in other jurisdictions. (See, People v. Higgins, 86 Ill. App. 2d 202, 229 N. E. 2d 161; State v. Smith, 55 Wis. 2d 304, 198 N. W. 2d 630; Geitner v. State, supra.) The trial court was without jurisdiction to find the defendant guilty of rape.
The judgment of the district court is reversed, and the trial coturt is directed to discharge the defendant.
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Per Curiam:
The district court granted a divorce to both parties on the ground of incompatibility. The property was divided equally between the parties. Included in this division of property were several shares of United Income Fund Securities, of substantial value, which were either gifts to the wife by or inherited from her parents. No alimony was awarded.
On appeal to this court, the appellant wife contends the district court abused its discretion in the division of the property by giving the husband one-half of her separately acquired and owned property.
We have carefully examined the record and we do not find the division of the property was so unreasonable as to amount to an abuse of discretion when all circumstances are considered, including the duration of the marriage for forty-four years, the physical condition of the parties, respective earning capacities, and their sources of income.
There was evidence to support a finding of fault on the part of the appellee husband from excessive use of intoxicating liquor. The appellant urges the decision of the district court in giving the husband one-half of her separate property is plainly unreasonable if this element of fault is considered. However, the testimony as to the extent of her husband’s drinking habits was disputed and no finding as to fault was made. This court will not retry the issue of fault on appeal as a basis for setting aside the district court’s division of property as arbitrary or capricious. (McClaren v. McClaren, 214 Kan. 217, 519 P. 2d 720.)
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
These appeals stem from default judgments entered in favor of the plaintiff, Steven L. Tyler, d. b. a. Tyler Acoustical Ceiling and Drywall Company against Cowen Construction, Inc., defendant. For convenience we will refer to the parties as plaintiff or Tyler, on the one hand; and defendant or Cowen on the other.
The pertinent facts in each case are identical except as to dates, times and amounts. The parties are the same, the appeals were consolidated for hearing, and we shall attempt, as best we can, to make one opinion do for both appeals.
The defendant construction company, with offices in Tulsa, Oklahoma, had prime contracts on two jobs in Montgomery County, Kansas, (1) a medical clinic in Coffeyville, and (2) a Catholic community center in Cherryvale. Tyler had subcontracts with Cowen for the drywall work on both jobs, in the amounts of $8,877.17 and $1944, respectively. A dispute arose between Tyler and Cowen over Tyler’s performance of his work on the Coffeyville job. Cowen contended the work was faulty and had to be re-done. Apparently no controversy existed over Tyler’s work on the Cherry-vale project.
On November 5, 1973, Tyler filed mechanics’ liens against both properties, showing a balance of $1014.90 due on the clinic job and $1944 on the community center. November 7, Mr. Steve Cowen, president of defendant company, retained Mr. William B. Lee, a Tulsa lawyer, to represent the defendant in its controversy with Tyler, and sent him copies of the lien statements. November 15, 1973, Tyler filed suit against Cowen to foreclose the lien on the Coffeyville property and to recover personal judgment against Cowen, as well. November 27, 1973, Tyler sued to foreclose the lien on the Cherryvale property and to recover a personal judgment.
Service in both cases was had on Cowen’s registered agent residing in Kansas City. Mr. Biersmith, the agent, forwarded copies of the petitions and attachments to Cowen in Tulsa, where they were received December 10.
In the meantime, Mr. Lee had written Robert L. Eastman, of the Coffeyville firm of Becker, Hildreth & Eastman, requesting a reasonable time to research the case and to discuss the possibility of settlement. In response Mr. Eastman phoned Lee on December 4. There is disagreement as to whether Eastman advised Lee in this conversation that suits had been filed. Eastman said Lee was advised, while Lee contends he was not. At any rate, Lee conveyed Eastman’s offer of settlement to Cowen, which rejected the offer, and Lee advised Eastman to this effect by phone the following day. Lee also told Eastman in this conversation that bonds would be filed to obtain release of the liens. The bonds were filed December 7 by B. D. Watson, a Coffeyville attorney.
Here matters stood until January 2, 1974, when Tyler filed motions for default judgments. On January 7, Mr. Lee received copies of these motions. That same day he wrote Biersmith in Kansas City. Mr. Badgerow, an attorney in Biersmith’s office, called Mr. Lee the next morning and told Lee the lawsuits had been filed and service perfected on Cowen. A conference ensued between Lee and Steve Cowen following the.call from Kansas City, during which Lee was given a copy of Biersmith’s letter of December 6.
Mr. Lee contacted Mr. Watson in Coffeyville to represent Cowen at the hearing of the motions for default judgment which were set for hearing January 11. On January 10, Watson filed motions (1) to dismiss the actions and (2) for permission to file pleadings out of time. Because of bad weather the hearings were continued, first to January 12, and then to January 18.
Before January 18, Tyler filed motions to require Cowen to inorease the face amount of the bonds already filed from $8,877.17 on the Coffeyville job, to $176,823, the total project cost, and from $1,944, the subcontract price on the Cherryvale job, to $63,549, the total cost of that project.
A hearing was held January 18 on all motions, both Tylers and Cowen’s. Cowen appeared by Mr. Watson. The court concluded at this time that “Cowen Construction, Inc., should be given one week to file a bond which complies with K. S. A. 60-1110” and “that tihe hearing on the motions should be continued” to January 25, 1974. (The dispute over the size of the bonds centered over whether the amount thereof should be the cost of the entire projects or that portion of the cost attributable to the subcontracts.)
At the adjourned hearing of January 25, 1974, Watson again represented Cowen and Tyler appeared by Eastman and Richard L. Becker. Mr. Lee was not present. Neither was Steve Cowen, president of the defendant company, or any member or any employee of that firm. No evidence was introduced but Mr. Watson filed and read an affidavit signed by Mr. Lee and received the day before. Many of the facts heretofore related have been gleaned from Lee’s affidavit. In the affidavit Lee stated that Biersmith’s letter of December 6, 1973, together with its enclosures, was received by Cowen on December 10, 1973, and “due to reduced office personnel during the holiday season same was inadvertently not directed to my attention.” Lee further stated that Cowen was prepared to defend Tyler’s claims and to cross-petition for damages which far exceeded Tyler’s lien statements. In concluding his affidavit, Lee said he was prepared to appear personally at any time and answer all questions propounded, and that personnel from Cowen’s firm “are also available to testify that I was not afforded sufficient knowledge to assist Cowen in the timely defense of Tyler’s claim.”
During the course of a somewhat lengthy colloquy between court and counsel, Watson advised the court that he had asked Lee “to come up here today” to explain to the court the failure to answer in time and that Lee had called the other day and said he had a conflict and could not appear but was mailing an affidavit. Watson also reported that Cowen had not increased the size of the bonds because the cost would be substantially more than the amounts in controversy.
After counsel from both sides had their say, the hearing was concluded by the court as follows:
“The Court: The court finds there is no excusable neglect. This is based on a number of things. No. one, time after the answer date — but there was proper notice served upon these people. They didn’t answer until long sifter the answer date. They sent Mr. Watson in here without the information necessary to represent them properly. They didn’t furnish him what he needed to know. This matter was set at various times and it was set a week ago at which time Mr. Watson appeared on their behalf and was not informed sufficiently well to adequately represent them. This was due to their failure to inform him of what he needed to know. The matter was continued until today in order to give him an opportunity to show cause why default judgment should not be entered, why excuseable [sic] neglect could be shown. They appear only by affidavit in spite of the fact they state in the affidavit they are a large construction company with numerous personnel who can appear at any time. Nobody appears but Mr. Watson. Once again he is without the information necessary to properly represent them. He requested them to appear. They do not appear except in the person of Mr. Watson, although he specifically requested that they appear, they appear in the form of affidavit which cannot be cross-examined. The Court cannot acquire the information that it needs in order to make any decision other than inexcuseable [sic] neglect. I think they have just bungled this whole thing and failed to pay attention to this lawsuit and I also think they have failed to give this court the attention and respect that it needs in order to properly conduct its business. Under the circumstances I find the neglect to be inexcuseable [sic] and default judgment will be entered. As I understood it that applies to both cases, is that correct, Mr. Watson?
“Mr. Watson: Yes, sir.
“The Court: Both cases,
“Mr. Watson: We would like the record to show that we object to the granting of default judgment without introduction of any evidence, without any support or basis shown to the court in any manner.
“The Court: Well, Mr. Watson, you will admit you were given an opportunity to appear today and present any evidence that you wish to present and you requested your clients to be here to offer evidence and they totally failed to appear.
“Mr. Watson: I would agree to that.
“The Court: All right.
An application for rehearing was presented February 8, 1974, with Mr. Watson again representing Cowen. Mr. Lee made no appearance at this hearing nor did Mr. Cowen or anyone else from his organization. No testimony was introduced at this hearing, with Mr. Watson telling the court:
“Judge, I could frankly have presented testimony at this hearing but it would merely have been cumulative to what is set out in the affidavit and I didn’t think that was necessary. There is no dispute about, as I recall — any substantial dispute about what the facts are as set out in the affidavit that we submitted in support of our motion for permission to file out of time. I don’t think the facts set out in that affidavit are substantially in dispute. . . .”
Much the same ground was gone over during this hearing as had been traversed before; it was largely an abbreviated re-run. The position taken by Mr. Watson was fairly summed up in his words:
“. . . [I]t is our position that the matters set forth in the affidavits show a reasonable excuse and excusable neglect. . . .”
The court’s final words were these:
“The Court: Well, the Court’s ruling was based upon the fact that the defendants did not appear except through their attorney who had not been furnished sufficient information with which to conduct defendant’s case. The Court continued the case in order to give the defendants an opportunity to appear and show excusable neglect. They failed to appear although stating they could and would appear at anytime, they totally failed to appear — instead filed affidavits on details which were in dispute — weren’t available for cross-examination. It was impossible for the court to determine excusable neglect unless ft accepted as totally true the statement of the defendants contained in the affidavit.
“The Court does not consider this an adequate performance on the part of the defendants. It does not consider that the defendants availed themselves of the opportunity to show excusable neglect. The Court’s ruling that they failed to show excusable neglect is affirmed and the motion is denied.”
Two points are briefed on appeal. It is first contended the judgments are void in purporting to enforce liens which were discharged by the bonds filed under K. S. A. 60-1110 (Corrick 1964). This relates to the argument between counsel over whether the statute required a bond in an amount equaling the cost of the entire projeot or only in such amount as the subcontract called for.
We. see no need to determine that dispute. In his petition Tyler prayed for judgment not only foreclosing the mechanics’ liens but for personal judgments against Cowen, as well. No judgment has been taken in either case foreclosing a hen and whether the bonds filed were sufficient to discharge the liens is immaterial at this stage of the proceedings.
The serious point is whether the trial court abused its discretion in denying the defendant’s motion for leave to file an answer in each case and in entering a default judgment in each.
It is clear that defendant seeks to excuse its failure to answer or plead within the statutory time allowed on the basis of “excusable neglect.” This is a ground recognized by our law, K. S. A. 1973 now (1974) Supp. 60-255 (b): “For good cause shown the court may set aside a judgment entered by default in accordance with K. S. A. 60-260 (b)’\ which in turn provides for relief on the grounds of mistake, inadvertence, surprise or excusable neglect.
Excusable neglect is a term somewhat nebulous. It touches an area in which there are few if any clear tangible signposts or guidelines. Whether excusable neglect is present or not in any given situation requires the judicious application of discretion. In Boyce v. Boyce, 206 Kan. 53, 476 P. 2d 625, we spoke of the term in these words:
“Excusable neglect as used in K. S. A. 60-206 (b) is not susceptible of clear definition. What constitutes excusable neglect under the statute must be determined by the trial court on a case by case basis under the facts presented in support of and in opposition to the enlargement of time. The trial court should consider the circumstances under which the neglect to act occurred as well as the effect of an enlargment upon the rights of all parties affected thereby.” (pp. 55, 56.)
This court is mindful of the legal philosophy which favors the hearing of the claims of litigants on their merits, but we recognize also the necessity of achieving finality in litigation. (Lackey v. Medora Township, 194 Kan. 794, 796, 401 P. 2d 911; Wilson v. Miller, 198 Kan. 321, 322, 424 P. 2d 271; Cadwallader v. Lehman, 202 Kan. 738, 750, 451 P. 2d 163.) In the Wilson case, we said:
“. . . [T]hat our entire judicial process for trial of civil controversies would be destroyed if a court’s summons or other process were permitted to be treated with neglectful indifference.” (p. 322.)
Any refusal to set aside a default judgment will, we are sure, seem harsh to the defaulting party. However, resulting severity, while a factor which might be given consideration in balancing equities,' is by no means the sole yardstick for measuring excusable neglect. In Montez v. Tonkawa Village Apartments, 215 Kan. 59, 523 P. 2d 351, we <discussed matters justifying a court in setting a default judgment aside. Our holding is expressed as follows:
“A motion to set aside a default may be granted whenever the court finds (1) that the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that the default was not the result of inexcusable neglect or a willful act.” (Syl. ¶ 4.)
That there was neglect in this case cannot be gainsaid. Cowen clearly failed to plead or answer within the time required. The de lay was Cowen’s own, however, not Mr. Lee’s. Servi-oe was properly obtained on Cowen through its resident agent, who promptly forwarded the papers to Cowen. Cowen did nothing about them for 29 days. In the meantime, the answer date had come and gone and motions for default judgments had been filed. And what excuse was offered to the court for this neglect? None whatever by any of Cowen’s officers or employees who might -have been in a position to explain the delay. The only attempted explanation came by way of an affidavit by Mr. Lee, who could have had no personal knowledge of the facts, that “due to reduced office personnel during the holiday season same was inadvertently not directed to my attention.”
But laying aside the fact that Mr. Lee knew nothing of the papers which had been served on Cowen, until after the answer dates had expired, may it be said that Lee’s explanation would amount to excusable neglect? Lee’s explanation was that the papers were “inadvertently not directed to my attention.” Inadvertent neglect, in our opinion, is not to be equated with excusable neglect. As we understand these terms, from a look at Webster’s Third International Dictionary, inadvertently means inattentively, carelessly, heedlessly, while excusable means justifiable, pardonable, allowable, defensible.
How long may one be inadvertent, anyway, and still be excusable? It would depend on the circumstances of course. But, without any explanation at all, may neglect from December 10 to January 8 be said to be excusable because of the Christmas season? Is carelessnes to be justified — or excused — by a 29-day holiday, And what office personnel were gone for 29 days? Did the list include anyone whose duty it was to attend to matters in litigation; anyone who should have sent the papers to Mr. Lee? There is no explanation! It appears to us there is little -distinction between the inadvertence referred to in Lee’s affidavit and the neglectful indifference of which we spoke in Wilson v. Miller, supra.
Can it be said the trial court abused its discretion by finding “there is no excusable neglect.” We believe not; we believe that no abuse of judicial discretion can be attributed to the court under the showing made by this record. The subject of judicial discretion has been treated in -a variety of -situations and h-as been variously defined. In Reliance Insurance Companies v. Thompson-Hayward Chemical Co., 214 Kan. 110, 519 P. 2d 730, Chief Justice F-atzer said:
“The exercise of judicial discretion requires a judge have due regard for what is just under prevailing circumstances and not exercise that discretion in an arbitrary fashion. . . .” (p. 117.)
With respect to the exercise of judicial discretion, we said, in Tilley v. International Harvester Co., 208 Kan. 75, 490 P. 2d 392:
“In the oficial reports of this court many decisions can be found relating to judicial discretion and the bounds of its exercise. In Willoughby v. Willoughby, 178 Kan. 62, 283 P. 2d 428, it was said of judicial discretion that it implies the liberty to act as a judge should act, upon fair judicial consideration, and not arbitrarily. The Court of Appeals for the Tenth Judicial Circuit, in Atchison, Topeka and Santa Fe Railway Co. v. Jackson, 235 F. 2d 390, described judicial discretion in these words:
“ . . The term discretion when used as a guide to judicial action means sound discretion exercised with due regard for that which is right and equitable under the circumstances. It means discretion directed by reason and conscience to a just result, and it frequently involves painstaking consideration of many factors, giving to each the weight to which it is appropriately entitled. . . .’ (p. 393.)” (pp. 78, 79.)
Abuse of discretion was succinctly put in the recent case of Stayton v. Stayton, 211 Kan. 560, 506 P. 2d 1172, in this way:
“Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial corut abused its discretion. . . .” (p. 562.)
In two of our most recent cases, Reliance Insurance Companies v. Thompson-Hayward Chemical Co., supra, and Montez v. Tonkawa Village Apartments, supra, this court directed that default judgments against defaulting defendants be set aside on the basis that exousable neglect had been shown. Both cases can be distinguished on the facts.
In the Reliance case suit was filed against Thompson-Hayward (Thompson), and a co-defendant. Thompson did not plead by answer date and Reliance moved for default judgment, which was granted. Thompson moved to set the judgment 'aside. At an evidentiary hearing it was shown that Thompson, which was a subsidiary of a New York corporation, had transmitted the summons and petition to New York where they were received at the home office and placed on the desk of the company’s corporate insurance officer. No action was taken for some eleven days because of the officer’s absence due to the company’s recent change of insurance carriers. Other and shorter delays were occasioned ‘by transmittal of the papers to New York and from there to the Hartford Insurance Group. We held the trial court erred in refusing to set the judgment aside.
A different set of facts, appears in Montez. The plaintiffs lived in an apartment house owned by the defendant corporation. The action was filed to recover damages resulting to Mrs. Montez from a fall on icy steps leading to her apartment. Service was had on the resident manager of the apartment complex who managed its day-to-day operations. The manager put the papers on his desk, and no one ever saw them again. He speculated they must have fallen off the desk and were caught up in the trash. He forgot to tell any of his superiors about it. They first learned of the lawsuit some two months after default judgment was taken in Mrs. Montez’ caise. These facts were established by affidavits. The defendant moved to set the default aside, attaching thereto an answer. The trial court overruled defendant’s motion. We reversed. In doing so we noted, among other factors to be considered, that “none of the principals, nor anyone else connected with the defendant with responsibility for such matters, had any actual knowledge of the suit; they cannot be charged with neglect of any kind.” Such is not the case here. The suit papers in this case reposed in the defendant’s own office for 29 days; they had not been placed on the desk of a distant apartment manager.
In Montez the following language is apropos:
“It may be observed that despite the wording of the rule the federal courts will refuse relief only where the neglect can be branded as ‘inexcusable.’ Such terminology is closely akin to our own phrase ‘reckless indifference.’ (Reliance Insurance Companies v. Thompson-H ay ward Chemical Co., supra, and cases cited therein.) It implies something more than the unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind. . . .” (p. 65.)
Throughout the entire course of this litigation the defendant’s attitude adds to the appearance of indifference. On three occasions, opportunity was provided both Mr. Lee and Cowen representatives to be present. On the second occasion an affidavit was filed by Mr. Lee stating he was prepared to appear personally and answer questions propounded of him. In the same affidavit he said that Cowen’s personnel were available to testify. Yet not one of them appeared at the hearing on Cowen’s motion for new trial, and Mr. Watson, again, was alone.
We see no abuse of discretion and the judgment of the court below is affirmed.
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Per Curiam.
This is a direct appeal from the judgment and sentence in a criminal action in which Joseph Blassingill (defendant-appellant) was tried for burglary (K. S. A. 21-3715 [Weeks]) and felony theft (K. S. A. 21-3701 [Weeks]). The jury found the appellant guilty of felony theft, but acquitted him on the burglary charge.
The evidence established that a burglary of an apartment and the theft therefrom of a television set occurred on October 20,1972. The appellant lived in the apartment house at that time. On October 28, 1972, the appellant sold the television set to the owner of a tavern. The appellant testified that he bought the television set from an unidentified man, driving a blue Cadillac, who came to his door and asked if he wanted to buy a television set.
The instructions included one on the possession of recently stolen property. No objections were made concerning the instruction before the jury retired. During its deliberations, the jury made inquiry of the court as to whether it would be bound to find the appellant guilty of burglary if it found the defendant guilty of theft. The court, with the approval of appellant’s attorney and the prosecutor, advised the jury that it had four choices under the instructions, i. e., the appellant might be found guilty of burglary and theft, burglary only, theft only, or not guilty, and it could make any one of those choices.
The appellant in his motion for a new trial and on appeal complains that the jury was improperly instructed on unexplained possession of recently stolen property. The appellant’s second point, which is raised for the first time on appeal, is that the verdict of guilty on the theft charge and not guilty on the burglary charge were inconsistent and that by reason of his acquittal on the burglary charge he should be acquitted on the theft charge.
Ordinarily this court will consider only the objections to instructions made before the jury retires to consider its verdict. (State v. Darling, 208 Kan. 469, 493 P. 2d 216; and State v. Morris, 208 Kan. 464, 493 P. 2d 274.) However, we have examined the instructions complained of and find that it substantially reflects the law on the point as expressed by this court for many years. (State v. Wilkins, 215 Kan. 145, 523 P. 2d 728; State v. Atkinson, 215 Kan. 139, 523 P. 2d 737; and State v. Brown, 203 Kan. 884, 457 P. 2d 130.)
Neither do we find any merit in the appellant’s contention that by reason of his acquittal on the burglary charge he should be acquitted on the theft charge. This court has consistently held that where a defendant is charged with two offenses which are independent, separate and distinct he may be convicted of one charge notwithstanding an acquittal as to the other. (State v. Ogden, 210 Kan. 510, 502 P. 2d 654; and State v. Finley, 208 Kan. 49, 490 P. 2d 630.)
The judgment of the lower court is affirmed.
Fromme, J., not participating.
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Schroeder, J.
Affirmed in part and reversed in part.
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The opinion of the court was delivered by
Hutchison, J.:
This was a condemnation action commenced by the state highway commission to condemn other and additional land after having procured a deed from the landowner to that part of his land upon which the actual roadway and its embankments were located. One of the tracts condemned is an irregularly shaped tract, or rather, several small narrow tracts and one large tract on the east bank of Grouse creek, all in the northwest quarter of section 23, and amounting to 5.37 acres; and the other was a tract immediately north of the highway 1,050 feet east and west and 200 feet wide, located in the northeast quarter of section 22. It contained 4.83 acres and is frequently referred to as a borrow pit, these two tracts making a total of 10.2 acres.
The landowner continued to own 552 acres in the tract from which the right of way was conveyed and this 10.2 acres were condemned. It was in a body two miles long and all but one. fourth of it one half a mile wide north and south. It was described as being about three fourths pasture land. Silver creek ran in a southerly direction through the northeast quarter of section 22 near the east side of that quarter section. Grouse creek ran in a southerly direction through the northwest quarter of section 23 near the east side of that quarter section. There were deep draws where these creeks crossed the half-section line or south edge of this tract of land. The old road had been.on this half-section line until it approached these deep draws. It then veered south and crossed these creeks at easier crossings, then returned northerly to the same half-section line. When this road became state highway No. 166 the highway commission decided to straighten it and have it continue across these draws on the half-section line, and for that purpose purchased from John De Vore and wife the necessary right of way for that purpose. Later, and for. use in the construction of this road, the highway needed the additional land and commenced this action to condemn this additional 10.2 acres, claiming it was needed mainly for borrow pits or from which it could get extra dirt needed for the fills. The appraisers appointed by the court returned an appraisement of the 5.37-acre tract, at $200 and the 4.83-acre tract at $300, or a total of $500. From this appraisement the landowners appealed, and the highway commission deposited this sum with the county treasurer.
On the trial in the district court before a jury much of the evidence of the landowners went to show the probability of damages to the remaining 552 acres from flood waters by reason of the method of the construction of the highway, embankments, fills and bridges. Such evidence was introduced over the objections of the highway commission until the plaintiffs rested their case, although the trial' court had frequently expressed doubt as to the correctness of the rulings thereon. At the close of plaintiffs’ testimony the court excluded from the consideration of the jury evidence as to damages to the remaining land by reason of floods and prospective floods, informing the jury that it had nothing to do with any damage that comes from the building of the road, nor from the grade, nor from the sufficiency of the bridges.
After the introduction of testimony by the highway commission and the giving of instructions the jury brought in a verdict for the landowners for $6,431, and answers to special questions, showing that $1,431 was for the 10.2 acres of land taken and $5,000 was for the depreciation in value of the 552 acres by reason of the land taken. On the hearing of the motions of both parties for a new trial the court reduced the verdict from $6,431 to $5,000, with interest thereon, and overruled both motions. The highway commission appealed from the judgment rendered thereon, and the landowners filed a cross-appeal.
The highway commission, the appellant, urges its grounds for error under the following questions involved:
“1. Does the record contain any substantial, competent evidence to support the verdict and judgment, or was the verdict rendered upon conjecture and speculation, or under the influence of passion and prejudice?
“2. Did the admission of evidence of damages, not flowing out of the condemnation, and not directly resulting therefrom, substantially prejudice the rights of this defendant?
“3. Is the defendant required to pay interest upon a judgment in a condemnation appeal?”
The appellees urge the negative of each and all of the questions, and under their cross-appeal propose the following question:
“Does not the act of the trial court in ruling out all evidence concerning flood damage, and taking such evidence from the jury, require a new trial as to the amount of damages arising from waters and flood water?”
We will first consider the cross-appeal where the appellees maintain that the highway is to be regarded as one entire thing and the landowner is entitled to recover all damages directly resulting to. the remainder of his land from the location and construction of -the road, whether the roadbed be actually placed on that portion of the right of way taken from his land or not, citing C. K. & N. Rly. Co. v. Van Cleave, 52 Kan. 665, 33 Pac. 472. This was a case where there was only one effort to acquire the land for the construction of a railroad either by condemnation or by deed, and because the railroad company actually placed the railroad entirely on the adjoining land to the south and used the plaintiff’s land only for embankments and borrow pits, it was held that the owner was entitled to recover any damage suffered as depreciation in the value of the remaining land by reason of the construction of the railroad crossing and improper construction of the road. In this Kansas case Blesch v. Chicago & Northwestern Ry. Co., 48 Wis. 168, 2 N. W. 113, is cited with approval, and it was where only six inches of plaintiff’s land was needed for embankment, and the court held it was all one right of way and the owner was entitled to recover all loss which he had sustained by reason of the road being built and operated on or over part of his land. This instance, too, was the first and only attempt to procure the land for railroad purposes.
The case of Smith v. Wyandotte County, 113 Kan. 244, 214 Pac. 104, cited by appellees, is more nearly like the case at bar in that the land on which the highway was located had already been appropriated and the highway constructed and in use. The condemnation proceedings were to condemn land for the widening and improvement of the highway, and the court there held:
“Where a strip of land is taken from an entire tract for the widening and improving of a highway, the owner is entitled to compensation to the extent of the value of the land taken and for injury to and depreciation of the remainder of the tract resulting from the appropriation; and in determining the damages to which he is entitled, consideration may be given to the character of the improvement and its effect upon the part of the tract not taken, including interference with access to the tract and the use to which it is devoted or reasonably adapted.” (Syl.)
All the damages to the land not taken is therein definitely limited to that caused by the improvement, not to the construction of the road originally. The only difference between these cases is that in the Smith case the highway was constructed and in use before the attempt to widen and improve it. In the case at bar before the highway was constructed, but after the deed for the right of way had been secured, borrow pits and additional land were found to be necessary.
Suppose instead of getting a deed from the landowners for the right of way, it had been condemned, would this subsequent condemnation proceeding for additional land have properly included all the damage to the remaining land on account of floods or other inconveniences caused by the building of the highway, which had been covered in the allowance of damage in the former condemnation action? We think not. The deed grants all the rights and privileges that could be acquired by a condemnation action, and its consideration covers not only the value of the land taken, but also the damage to the land not taken. This is and has been the general rule, as is stated in 2 Lewis on Eminent Domain (3d ed.), § 474:
“The conveyance of land for a public purpose will ordinarily vest in the grantee the same rights as though the land had been acquired by condemnation. The conveyance will be held to be a release of all damages which would be presumed to be included in the award of damages if the property had been condemned.”
This same rule is stated in the following cases: Norris v. Vt. Central R. Co., 28 Vt. 99; C. R. I. & P. Ry. Co. v. Smith, 111 Ill. 363; Kotz v. I. C. R. R. Co., 188 Ill. 578, 59 N. E. 240; and Tacoma Mill Co. v. Northern Pac. R. Co., 89 Wash. 187, 154 Pac. 173.
Attention is called to the testimony of one of the owners that when he gave the deed for the right of way he was told there would be no fill. But it is stated there is no reservation in the deed.
We think the trial court properly instructed the jury by limiting the damage to the land not taken to “such damage as you find from the evidence such appropriation of the 10.2 acres damaged the reasonable fair market value of the remaining portion of appellant’s farm,” and there was no error in the withdrawal from the consideration of the jury of the evidence of flood and other damages caused to the remainder of the land by the construction of the highway, that damage, if any, being properly included in the consideration of the conveyance.
The first and second questions involved, as stated by the appellant, deal mostly with passion and prejudice of the jury as evidenced by its verdict, and the verdict apparently was supported only by the conjectural and speculative character of evidence admitted and later withdrawn from the consideration of the jury. The trial court was undoubtedly impressed along this line when it reduced the verdict nearly one fourth. The amount of the damage found by the jury to the remaining land was $5,000, which was approximately one third as much as the largest estimate given by any of the witnesses for all the damages for every reason including construction of the highway and floods, which was later withdrawn from consideration of the jury. In fact, only one witness is mentioned as having given an estimate of the damages caused to the remainder of the land by the taking of the 10.2 acres, and appellees construe one of his answers on cross-examination as placing such specific damages at $7,000. This witness was being cross-examined as to the detailed items making up the difference in value of the land remaining which he said was $25,000 before and $8,000 or $9,000 after, and after detailing to some extent he was asked the following question, and gave the following answer:
“Q. How do you make out this other $7,000 damage — tell the jury that? A. Depreciation in the valuation of the land — -what it would be worth now and what it was worth.”
The force of this theory is seriously affected when we consider an earlier question put to him in the same cross-examination and his answer thereto, as follows:
“Q. Now, in coming to that conclusion, how much, if any, did you allow for the possibility of damage by reason of the water that is caused by the fill in the highway? A. That is practically all of it — it has caused it all.”
Without any other estimate of amount of damages caused by the taking of these 10.2 acres than the last, which is convincing along that line, we cannot help believing the jury was unable to disniiss from their consideration the impression 'made by large figures of the flood testimony, although the court instructed that it be not considered. Eliminating the $7,000 statement, which we feel was so modified by the former answer of the same witness as to make that necessary, the jury was without any estimate of damages on the only question of damages submitted. We are aware that evidence improperly admitted and later withdrawn cannot, in the absence of some affirmative showing, be held to have worked material prejudice. (Cox v. Chase, 99 Kan. 740, 163 Pac. 184, and Burke v. Missouri-K.-T. Rld. Co., 132 Kan. 625, 635, 296 Pac. 380; Whittaker v. Voorhees, Sheriff, 38 Kan. 71, 15 Pac. 874; and K. P. & W. Rld. Co. v. Quinn, 45 Kan. 477, 25 Pac. 1068.) But there is an affirmative showing here of prejudice when no evidence as to amount of damages was left in the case, but the jury brings in a verdict and answers to special questions for an amount that would have been reasonable if the flood evidence had not been withdrawn.
Perhaps some witnesses may be permitted to describe injuries or damage without naming amounts, but others usually supply that omission. The jury in this case went out under instructions to see the premises, but that would not be sufficient without substantial evidence on the matter submitted to it for determination.
What we have said here does not by any means infer that there are no damages or that there was no evidence of damage to the remaining land. One witness spoke of the water collecting in the borrow pit and the little ditch that drained it. Another spoke of the borrow pit being an eyesore. The engineer said the borrow pit was entirely outside the right-of-way line. Another witness said the owner was required to change some fences by reason of the borrow pit. The borrow pit land is too low for a truck garden. Another said the borrow pit is not worth anything now. Another said after a shower the rain would run into the borrow pit, the drain sometimes fills up and the water becomes stagnant.
The evidence makes a proper basis for some damages just as it was submitted by the trial court, but we are compelled to hold that the verdict and answers to some of the questions are not supported by the evidence and were necessarily the result of passion and prejudice on the part of the jury, and the verdict must therefore be set-aside. There is sufficient evidence to support the answers to the special questions as to the value of the 10.2 acres of land taken being $1,431. This part of the finding and judgment will be sustained, but we hold a new trial should have been granted appellant as to the question of damages for the taking of the 10.2 acres.
Appellant complains of the allowance of interest on the judgment in condemnation cases, but we think this assignment of error is not well taken under the decision in the case of Fleming v. Ellsworth County Comm’rs, 119 Kan. 598, 240 Pac. 591, in the -opinion of which on page 602 the case of Salthouse v. McPherson County, 115 Kan. 668, 224 Pac. 70, is distinguished. (See, also, Miltimore v. City of Augusta, 140 Kan. 520, 38 P. 2d 675.)
The judgment of the district court is affirmed except as to the question of damages, and the cause is remanded with instructions to render judgment against defendants for the value of the 10.2 acres of land taken in the sum of $1,431, as found by the jury and approved by the trial court, with interest, and to sustain the motion of the appellant for a new trial, limiting the trial to the question of damages to the remaining land by reason of the taking -of the 10.2 acres. It is so ordered.
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The opinion of the court was delivered by
Burch, C. J.:
The action was one to quiet plaintiff’s title to land, held under an instrument executed and delivered to plaintiff by his father, the former owner. The principal question was whether the deed operated as a conveyance or was testamentary in character. Plaintiff recovered, and defendants appeal.
Gust Gustason, the former owner, resided on the land until he moved to Hugoton in October, 1920. R. D. Gustason was born on the land in May, 1898, was reared on the land, and has been in possession since October, 1920. There were transactions between father and son relating to the land previous to execution of the instrument in controversy which need not be recited.
On August 22,1925, W. B. Crawford, a notary public of Hugoton, went to the residence of Gust Gustason in Hugoton, at Gust Gustason’s request, and from information given by Gust Gustason, Crawford prepared the instrument. The general form is that of an ordinary warranty deed of the land to R. D. Gustason, executed and acknowledged by Gust Gustason and his wife, Laura Gustason. A mortgage on the land was excepted from the warranty and was assumed by the grantee. The following was inserted between the granting clause and the habendum:
“It being one of the provisions of this deed and fully understood by the grantors and grantee that should this deed be placed of record in the office of the register of deeds in Stevens county, Kansas, at any time prior to the death of the grantor, Gust Gustason, that it shall have no legal existence until the death of the said grantor, Gust Gustason, and at the death of the said Gust Gustason then this deed shall become absolute and in full force and effect.”
The deed was subsequently delivered to the grantee.
On December 18, 1926, Gust Gustason made a will. Two days later he died, and in due time the will was admitted to probate. The will purported to devise to the testator's daughters a portion of the land described in the deed. On December 27, 1926, the deed was filed for record.
After finding the facts, the district court returned the following conclusion of law:
“That the instrument of August 22, 1925, executed by Gust Gustason and wife to R. D. Gustason was a deed conveying a present interest in real estate, with a condition subsequent. The deed was not recorded by the plaintiff in the life time of the grantor, and the legal effect, if any, of this condition subsequent is not determined in these conclusions of law.”
The conclusion of law is approved, and the contention of defendants that the instrument was testamentary in character is not well founded.
At the trial oral testimony was offered to the effect that when the deed was prepared Gust Gustason told the notary he wanted a Jim Crow deed, one that would not amount to anything and would not stand in law. Objection was made, and the court admitted the testimony provisionally. In finally disposing of the case the court held the parol-evidence rule forbade consideration of the testimony, and sustained the objection. The ruling is approved. Whatever the preliminary conversation between the grantor and the notary concerning preparation of a flimflam, the deed as written was in fact executed and delivered, is not ambiguous, and speaks for itself.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover under the workmen’s compensation act. (R. S. 44-501 et seq.) A demurrer by the defendant to plaintiff’s petition was overruled and the defendant appeals.
The petition alleged substantially that William Riggs, while in the performance of his duties for defendant, covering a period of years, breathed cement dust and gases to such an extent that his lungs were filled, resulting in weakness of the arteries of the heart and especially of the aorta, causing the mucous membrane of the lungs and the arteries surrounding the heart to become diseased and weakened; that while in this condition, as part of his duties, he was compelled to climb a ladder, the exertion of which overtaxed him, and that the arteries of the heart gave way, failed to function and caused instant death.
The defendant contends that there are no facts set out in the petition showing or tending to show that the death of the deceased was due to an accident arising out of his employment; that “there is no time, place or circumstance alleged where the thing called an accident occurred.”
It is apparent that the pleader intended to bring himself within the rule announced in Gilliland v. Zinc Co., 112 Kan. 39, 209 Pac. 658, wherein it was held that where one became overheated and drank ice water which caused congestion of the vascular system and death, the death resulted from an accident within the scope and purpose of the workmen’s compensation act; that the workman’s death was caused by an accident arising out of and in the course of his employment. Also, within the rule announced in Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, wherein it was held that where the workman had worked for three years in the sacking department of the cement plant, which was a very dusty place, and up until the time of his death apparently was in good health and spirits, and at the time of his death his employment required him to break large rock with a sledge and shortly after he ate his lunch and while using the sledge to break rock he suffered a pulmonary hemorrhage from which he died, under such facts and circumstances the injury arose out of the employment within the meaning of the workmen’s compensation act. Also, within the rule announced in Blackburn v. Brick & Tile Co., 107 Kan. 722, 193 Pac. 351, where it was said that if by weakening resistance, or otherwise, an accident so contributes to or influences the progress of an existing disease as to cause a disability, it is sufficient to justify an award under the workmen’s compensation act. In Stringer v. Mining Co., 114 Kan. 716, 220 Pac. 168, it was said:
“A workman was employed as a sludge man in the mill of a lead and zinc mine. While making some ordinary repairs about the mill, which was a part of his duty, he suffered a hemorrhage of the lungs, from which he died in a few minutes. Three years prior thereto he had the influenza, which weakened his lungs so that he coughed and spit up phlegm at night. There was medical evidence that in the weakened condition of his lungs the exertion of his work might have caused the hemorrhage. Held, sufficient to sustain a finding that his death was the result of an accident arising out of and in the course of his employment under the workmen’s compensation act.” (Syl.)
We are of the opinion that the allegations of the petition bring it within the rule announced in the above-cited cases. If the deceased while in the performance of his duties overexerted himself to such an extent that it caused a rupture of the aorta, which immediately caused his death, the rule announced in the cases cited would be applicable. (See, also, Patrick v. J. B. Ham Co., 111 Atl. 912, 13 A. L. R. 427 [Maine]; Peoria Terminal Co. v. Indus. Board, 279 Ill. 352, 116 N. E. 651; St. Clair v. A. H. Meyer Music House, 178 N. W. 705; Kiercok v. Phila. & Reading C. & I. Co., 270 Pa. 17, 112 Atl. 746.)
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action in replevin for the possession of certain cattle.
It appears that on November 1, 1929, the defendants, father and son, sold to Fred Mull, son-in-law of the one and brother-in-law of the other, a herd of cattle. To raise part of the purchase price, on December 30, 1929, he mortgaged the herd to the plaintiff bank. At successive intervals of a few months Mull obtained extensions of the loan and executed corresponding renewals of the chattel mortgage. In these several renewals the exact number and description of the cattle varied somewhat, but the recitals were always sufficient to identify the property. The last renewal was dated March 13, 1933. In all renewals after the one executed on March 31, 1930, there was a recital that the mortgage covered all increase and additions and accretions to the described cattle.
In the meantime, on November 3,1930, Mull returned to defendants thirty-one head of heifers covered by plaintiff’s chattel mortgage, for the alleged purpose of paying the balance due the defendants on the original purchase price.
This action was begun on December 9, 1933. Plaintiff’s petition recited the pertinent facts and alleged that pursuant to a conspiracy to defraud the plaintiff, Mull had delivered thirty-one yearling heifers covered by plaintiff’s mortgage to defendants; that this fraud was perpetrated on or about November 3, 1930; and that in the meantime those yearling heifers had become cows and that their increase, which was considerable, was likewise covered by the terms of plaintiff’s mortgage.
Defendants’ answer contained,a general denial, and pleaded the further defense that plaintiff’s cause of action accrued more than three years before this action in replevin was begun.
The cause was tried before a jury. The plaintiff’s prima facie case was readily established. The defendants gave testimony tending to show that the bank or its president knew about the resale of the thirty-one heifers to the defendants as early as April, 1931.
Only a single question of disputed fact was submitted to the jury. It and the jury’s answer read:
“Q. When did the plaintiff leam of the sale of the thirty-one head of cattle from Mull to the defendants Park? A. November, 1933.
“E. A. Rhoades, Foreman."
Judgment was entered for plaintiff on the jury’s special finding and on other pertinent facts in dispute, and defendants appeal.
Defendants raise two questions, the first of which relates to the jury’s special finding of fact, which they say was contrary to the evidence.
It is true that both defendants gave testimony to the effect that in a conversation with the president of the bank in April, 1931, they apprised him that Mull had returned the thirty-one heifers in payment of the balance due on the purchase price of thé herd they had sold him in November, 1929. Such is a possible interpretation of their testimony — given the 'most liberal significance — but, of course, the trial court and jury were not bound to give it credence. The circumstances, including the relationship of defendants to Mull, may have cast doubt on its truth. (Pfeifer v. Basgall, 112 Kan. 269, 211 Pac. 134, and citations.) Moreover, it is no marvel that the triers of fact gave it no credence in view of the fact that in certain representations to some other financial institution designated “Regional Bank,” also as “Regional Credit Corporation,” in the record, which defendants made for the purpose of borrowing money or otherwise obtaining credit, they did not list these particular heifers and their increase as their property. (Peoples National Bank v. Diven, 135 Kan. 400, 10 P. 2d 883.) The testimony for the bank was to the effect that none of the responsible officials knew anything about the return or resale of these heifers to defendants until shortly before this action in replevin was begun in 1933. It is therefore quite clear that the jury’s special verdict was supported by sufficient competent evidence.
Defendants’ next contention is that the trial court erred in awarding plaintiff possession of the increase of the thirty-one heifers. This contention is based upon the rule of law that things not in esse at the time a contract is made cannot be made the subject of an enforceable contract, which, broadly considered, would include a chattel mortgage. Within limits there is such a rule, but there has also been a familiar rule of law in this state for fifty years that a chattel mortgage covering domestic animals “and their increase” is valid. (Corbin v. Kincaid, 33 Kan. 649, 7 Pac. 145.)
In Holt v. Lucas, 77 Kan. 710, 96 Pac. 30, 127 A. S. R. 459, this court went thoroughly into this subject, and the rule was restated and upheld. See, also, the instructive note to this case in 17 L. R. A., n. s., 203; and our own case of Beall v. Spear, 106 Kan. 690, 189 Pac. 938, where Holt v. Lucas is brought into the discussion of the validity of a chattel mortgage'on an unplanted wheat crop. It is interesting to note that the legislature has recently enlarged the contract right of mortgaging chattels not even potentially in being at the time the instrument is executed. (Laws 1935, ch. 218.) However, the increase of the thirty-one heifers which are involved in this appeal necessarily had a potential existence at the time of the last renewal of the chattel mortgage, and defendants’ contention that such increase was not within the terms of the mortgage as renewed on March 13,1933, cannot be sustained.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, A. B. Kirkpatrick, brought this action against the Chrysler Sales Corporation, defendant, for a sum of money alleged to be due him in consequence of the winding up of a business relationship which had theretofore existed between them.
It appears that for several years immediately prior to June 30, 1926, plaintiff had been a- dealer in automobiles and automobile supplies in Topeka. In 1918 he had the agency for the sale and distribution of the Maxwell Motor Company’s automobiles and repairs for such vehicles. His relationship to that company was defined by a written contract which by its literal terms was to endure for a year. By that contract plaintiff was required to deposit with the Maxwell Motor Sales Corporation a sum of money as a guaranty of the payment of his repair parts account and to avoid the necessity of C. O. D. shipments, and to reimburse the company for any expenditures made by it in protecting the plaintiff’s rights as distributor. The net balance of such deposit was to be returned to the plaintiff at the expiration of the annual contract. The contract also provided:
“At the termination of this agreement the company agrees to repurchase from the direct dealer F. O. B. its factory, all new repair parts in good condition purchased by the direct dealer from the company under this agreement which the direct dealer may have in stock at that time at current prices to direct dealers; the direct dealer to return said parts within thirty days from cancellation.”
However, as this annual contract was renewed in 1919 and again in 1920 and 1921, plaintiff’s deposit was not thus returned, but was transferred to his credit from year to year on the books of the company. Similarly plaintiff’s stock of repair parts was not annually shipped back to the factory and credit given therefor as provided by the literal terms of the contract, but was kept on hand as current supplies for the more efficient discharge of his duties as distributor.
In 1922 the Chalmers Motor Car Company took over the business of the Maxwell company, and made a contract with plaintiff substantially similar to the one which had defined his relationship to the Maxwell company. By its terms.plaintiff was to be supplied with repair parts for both Maxwell and Chalmers automobiles, and his deposit with the Maxwell company was transferred to the Chalmers company and increased from time to time as his business in the sale of repair parts for these cars increased. His annual contract with the Chalmers company was renewed in 1923. •
By these successive contracts both the Maxwell and Chalmers companies had and exercised the right to declare certain repair parts obsolete and the plaintiff had and exercised the right to return to the companies such obsolete parts as he had not disposed of.
In 1924 the Chrysler Sales Corporation took over the business of the Chalmers company and made a contract with plaintiff whereby he was to serve as distributor of its cars and repair parts on terms somewhat similar to those which had theretofore defined his relationship to the Maxwell and Chalmers companies. By its terms plaintiff was required to handle repair parts for Maxwell, Chalmers and Chrysler automobiles, and his deposit with the Chalmers company was transferred to the Chrysler Sales Corporation. In 1925 the latter contract was renewed for the year terminating on June 30, 1926.
On June 7, 1926, the defendant company notified plaintiff that their contract with him would not be renewed. Plaintiff called defendant’s attention to matters which such severance of their business relationship would bring up for disposition — his recent contribution to an advertising campaign set on foot by the defendant, and the large stock of repair parts he had on hand. His letter concluded:
“Do you expect to leave them on my hands? ... I do not know what rights I may have, but before finding out I would like to know your attitude on these matters.”
Defendant replied, citing a clause in the contract touching the rights of the parties with respect to the repair parts, but adding:
“You are well acquainted with our policy regarding our method of giving credits for returned parts. ... It has been our experience that if the retiring distributor or dealer takes a reasonable attitude, the succeeding organization is usually quite willing to negotiate on an equitable basis with everybody concerned. I am referring your letter to our Mr. Spencer, of Kansas City, and he will be glad to talk with you on anything you may care to bring up in connection with the matter at hand.”
The last annual contract executed between plaintiff and defendant, dated July 1, 1925; contained the following:
“(12) The distributor shall sell as repair parts for Chrysler, Maxwell and Chalmers motor vehicles only such parts as are purchased from or have written approval of the company. He shall sell repair parts for Chrysler, Maxwell and Chalmers motor vehicles to consumers at not in excess of the regular list prices published by the company and shall make no charges for government tax, transportation, packing and handling.
“(13) At the termination of this agreement by cancellation by the company or the refusal of the company to renew this agreement upon its expiration, the company agrees to repurchase at such prices as distributor has paid for same, including any cash discount, from the distributor F. O. B. the company’s factory, all new current repair parts in good condition purchased by the distributor from the company under this agreement, which the distributor may have in stock at that time; the distributor to return such parts within thirty (30) days from such termination and to prepay transportation to the company’s factory, provided that the company reserves the right to declare obsolete all or any parts for any model and to refuse to buy back or give credit for such parts so obsoleted; it being understood and agreed that the distributor will be given ninety (90) days within which to return such parts for credit after receipt of a notice from the company of their being made obsolete, and mailing of notification by the company of intention to’ obsolete to the last known address of the distributor shall constitute notice under the terms of this agreement. It is further agreed that the company reserves the right at its option to repurchase new current parts at prices paid by the distributor for same if this agreement is terminated by cancellation by the distributor, or if the distributor fails to renew it upon its expiration.
“(17) The company shall not be liable to the distributor for any loss or damage to motor vehicles or parts under this agreement while the same are in the custody or possession of any railroad, express company, or other common carrier in transit, but all such loss or damage, after such motor vehicles or parts are delivered to such carrier, shall be borne by the distributor, the company being ready to lend the distributor its assistance in the collection of any claim the distributor may have.
“(28) This agreement, when executed, supersedes and annuls all former agreements between the parties, their predecessors and assigns, relative to the sale of Chrysler motor vehicles and repair parts, and all orders or schedules outstanding at that time shall be covered by the initial order hereunder.”
Considerable correspondence pertaining to the taking over of plaintiff’s stock of repair parts of Maxwell, Chalmers and Chrysler automobiles passed between the parties, which was not concluded within the thirty days next succeeding the termination of the contract. On August 2 defendant wrote:
“Acknowledging your wire of July 31, with reference to disposition of parts of stock.
“Just at this time Mr. Spencer is out of the city and until his return it will be impossible to advise you just what action to take regarding this parts stock.
“However, you may rest assured that upon his return to the office, we will be very glad to bring this matter to his attention, and will advise you further.”
Nothing came of this correspondence, and on August 12, 1926, plaintiff shipped to defendant’s factory at Dayton, Ohio, 72 packages of repair parts, for which defendant paid certain sums on account, but declined to pay for some 1,200 to 1,500 items on the alleged ground that they were obsolete and not such as defendant was bound to accept and pay for under its last annual contract.
Hence this lawsuit.
Issues were joined, the contract exhibited, witnesses testified or deposed, catalogues and price lists and correspondence were introduced, and the court sitting without a jury heard the parties at length as upon an accounting. The parties agreed that the court need not make special findings on all the issues, but it did make a number of findings to the effect that plaintiff was entitled to reimbursement for various scheduled lists of returned parts, viz.:
Exhibit B. List of returned parts for which defendant issued credit memoranda but refused credit.................................. 8557.44
Exhibit D. List of returned parts for which neither memoranda nor credits were given.............................................. 246.83
Exhibit F. List of parts for which credits were given at wrong prices. Balance due thereon........................................... 386.49
Credit due plaintiff for contribution to defendant’s advertising campaign ......................................................... 42.78
Total ....................................................... 81,233.54
Less item of excess credit allowed by defendant.................... 9.39
Net balance due plaintiff [with interest]...................... 81,224.15
Judgment was entered accordingly, and defendant appeals. It opens its argument by stressing the terms of its last annual contract with plaintiff which expired June 30, 1926. It insists that plaintiff’s rights were exclusively governed by the literal terms of that instrument. Sometimes, however, it happens that the practical construction placed on a contract by the parties thereto is more important than its literal terms. In District of Columbia v. Gallaher, 124 U. S. 505, 31 L. Ed. 526, it was held:
“When, in the performance of a written contract, both parties put a practical construction upon it which is at variance with its literal meaning, that construction will prevail over the language of the contract.” (Headnote.)
In this casé it is not possible to reach either a legal or an equitable determination of the rights and liabilities of the litigants without giving cognizance to the methods by which for several years their business dealings were conducted by plaintiff on the one hand and defendant and its predecessors on the other. By the terms of successive annual contracts plaintiff was required to handle repair parts for the Maxwell and Chalmers cars as well as for the later Chrysler cars. By the 'Operative construction of these contracts plaintiff was neither required nor expected to return to the factory his stock of repair parts at the end of each annual contract. True, each contract so provided, but it was not done, and this customary annual departure from its literal terms was sanctioned. Indeed, it is not too much to infer that the annual return of-the balance of repair parts plaintiff had on hand to whichever of these three companies was functioning at the time and their immediate reshipment to plaintiff with each successive renewal of the contract and the needless and wasteful expense incident thereto, would not have been tolerated by either party. So, too, the annual transfer of plaintiff’s deposit on the books of the company instead of its surrender and redeposit was another departure from the literal terms of the several contracts by which the operative interpretation of the contract is revealed.
In the analogous case of Berg v. Scully, 120 Kan. 637, 243 Pac. 119, one Scully acquired a large acreage of Marion county land when the country thereabout was new. When the country filled up so that land could be rented,' Scully leased his lands on annual contracts, requiring each tenant to furnish his own improvements, with the privilege of removing them at the expiration of his tenancy. In actual practice, by successive renewals of such leases, these “annual” tenancies frequently endured for many years and the tenants built substantial houses, barns and fences, and dug wells and planted orchards on Scully’s lands, all of which improvements by the literal terms of his contract each tenant had a right to remove at the end of the current year specified in his lease — provided he exercised that right promptly, otherwise not. In actual practice, the right of the outgoing tenant to sell his improvements to the incoming tenant was recognized by Scully, who made the purchase of the outgoing tenant’s improvements at a fair price one of the conditions upon which he would lease the premises to any incoming tenant. Berg, a tenant, fell under the weight of Scully’s displeasure, and was given notice to quit and promptly evicted at the end of his “annual” term. Scully would not cooperate with him in choosing an incoming tenant who would buy Berg’s house, barn, shed, granary, henhouse, tool house, windmill and fences, so of course Berg could not sell them; and obviously his literal right to remove his improvements was worthless, so he apparently stood to lose them to his landlord, a la the Irish system of farm tenancy of inglorious memory. But this court held that the operative construction given to the successive annual leases and the landlord’s practical method of dealing with his outgoing and incoming tenants had to be taken into consideration regardless of the literalism of the contract, and under this sound and well-established rule of law a measure of equitable relief was granted to the evicted tenant. Other cases where the operative interpretation of contracts was given controlling significance were: News Service v. Printing Co., 103 Kan. 402, 173 Pac. 980; Merkle v. Hiatt, 103 Kan. 767, 770, 176 Pac. 655; Landon v. Rly. Co., 113 Kan. 628, 216 Pac. 309; Fontana v. Integrity Mutual Casualty Co., 120 Kan. 406, 410, 243 Pac. 1036; Mitau v. Roddan, 149 Cal. 1, 6 L. R. A., n. s., 275, 281; Lowrey v. Hawaii, 206 U. S. 206, 51 L. Ed. 1026, 1033. See, also, 13 C. J. 542, 546; 6 R. C. L. 849, 853.
And so here. That the rights and liabilities of those litigants were not altogether and exclusively defined by the literal terms of the contract July 1, 1925, arid ending June 30, 1926, was clearly revealed by the constant and unequivocal recognition of the continuity of the business relationship existing between plaintiff and the Maxwell, Chalmers and Chrysler companies from 1918 to 1926 regardless of successive changes in their corporate control. Indeed, the whole tenor of defendant’s correspondence with plaintiff is couched in recognition of the practically undisturbed continuity of this business relationship of the parties over a number of years. On occasion plaintiff was given confidential instructions touching the business of all three companies by a communication entitled “Maxwell-Chrysler-Chalmers Confidential Bulletin,” and the price lists of repair parts furnished by this defendant contained lists and prices of Maxwell and Chalmers repair parts as well as those of Chrysler automobiles, and defendant dictated the conditions under which plaintiff was to handle them. Plaintiff could not have rendered efficient service to defendant as distributor of Maxwell, Chalmers and Chrysler repairs without keeping a stock of these on hand, and it is perfectly clear that as long as defendant continued to renew his annual contract the return of such parts at the close of each year would not have been tolerated. Moreover, as in the earlier contracts there was an express provision of the last annual contract whereby a 90 days’ notice of obsolescence was to be given during which period plaintiff had the right to return repairs falling under such classification and receive reimbursement therefor. None of the exhibited lists outlined above were ever subjected to such notice. Defendant says the intimation of obsolescence given to many of these so-called obsolete repairs in its catalogues and price lists was sufficient notice to relieve it of its duty to reimburse plaintiff therefor. We think not. Those price lists were neither intended nor fitted to perform the function of a 90 days’ notice of obsolescence. In giving the price lists of obsolete parts there was a statement that such parts were not returnable for credit. Of course that provision was perfectly fair. If plaintiff ordered a repair part according to that schedule he knew he could not return it and get reimbursement therefor. But that provision did not govern his rights touching repairs already bought and paid for by him before such qualified listing appeared in the catalogue. As to all such as he already had on hand he could confidently keep them until sold by him or until he had a 90 days’ formal notice of obsolescence, during which time he might return them for credit. It is not contended that any of the items listed in the exhibited schedules B, D or F, outlined above, were bought by plaintiff from defendant or its predecessors at times when they were noted in the catalogues or price lists as not returnable for credit.
Complaint is made that the trial court allowed exorbitant prices for some of'the returned parts. But it is not contended that the court allowed any more for them than plaintiff paid for them, and consequently this criticized allowance for reimbursement will have to stand.
Error is also urged upon the fixing of liability on defendant for all the parts returned whether plaintiff was entitled to reimbursement therefor or not, on the mere ground that defendant did not return them to plaintiff. Defendant invokes the rule of law that one to whom unsatisfactory goods have been sent is not obliged to return them in order to avoid liability therefor, but may simply hold them subject to the order of the seller. (24 R. C. L. 435.) But the evidence shows that defendant did not stand on this right of a consignee to whom unsatisfactory goods are sent. It exercised such a dominion over them as to preclude it from claiming that it held them subject to plaintiff’s orders. It retained them for a time and eventually shipped them back to Kansas consigned to its own attorneys, in whose custody, so far as the record shows, they still remain. Under such circumstances defendant was not entitled to invoke the rule governing a consignee’s right to hold unsatisfactory goods subject to the order of the vendor. (Dougherty v. Implement Co., 75 Kan. 450, 89 Pac. 900.) See, also, Peabody School Furniture Co. v. Steel Fixture Mfg. Co., 125 Kan. 278, 264 Pac. 27; and 35 Cyc. 258, 262.
It is also contended that the trial court erred in allowing list prices for all the returned parts; that if liable at all defendant was only liable for their reasonable value, which was merely their value as junk at U/4 cents per pound. This point is untenable. Plaintiff bought all those parts from defendant and its predecessors at list prices, and he was entitled to reimbursement at those prices when their business relationship was severed, seeing that no 90 days’ notice of obsolescence of any of the parts it was adjudged to pay for in this lawsuit had been given by defendant or by the earlier companies to whose business it had succeeded.
The other matters urged against the judgment have been patiently considered, but they suggest nothing to warrant further discussion. No palpable error inheres in the judgment which would permit it to be disturbed. It is therefore affirmed.
Harvey, J., not sitting.
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