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The opinion of the court was delivered by
Bükch, J.:
The origin and general nature, of the action are described in the opinion in the case of Hart v. Bank, 1Ó5 Kan. . 434, 185 Pac. 1, and need not be restated. The facts involved are very numerous, and with respect to some subjects, somewhat complicated. The legal questions deserving attention, however, are few, and the solving principles are well settled. Therefore, the court will burden the pages of the Kansas reports with as little of the controversy as possible, and will" announce its conclusions with as little elaboration as possible.
Nellie D. Stadden, whose will created the trust, died on December 2, 1900. Leo I. Stadden, a son of the testatrix, qualified as trustee on December 10. Lillian M. Prager, a daughter of the testatrix, succeeded him. on May 26, 1902, and will be referred to hereafter simply as the trustee. The will specified no property which should constitute the corpus of the trust estate. On December 29, 1900, the personal property belonging to the estate of the testatrix, including a large credit on the books of the grocery company, was partitioned by a contract which the trust beneficiaries have expressly ratified. By that contract Leo. I. Stadden, trustee,' became vested with substantially one-third of the credit, in the sum of $10,072.12, the remainder being divided with approximate equality between Leo I.. Stadden, personally, and Lillian M. Prager. Capital stock of the grocery company,' belonging to the testatrix, was similarly divided. On May 26, 1902, the grocery company sold its stock of merchandise, went out of business, and proceeded to wind up its affairs. The trustee asked her predecessor, who was president and manager of the grocery company, and asked McLaughlin,’who was, and long had been, bookkeeper of the grocery company, for statements of account. On June 3 McLaughlin furnished a statement of the debts of the grocery company to others than Lillian M. Prager as an individual and as trustee. The statement showed:
Bills and accounts payable......■............. $13,553.65
Due bank ................................. 10,000.00
Sundry accounts ........................... 165.30
Due Leo I. Stadden......................... 388.61
A total of................................ $24,107.56
The statement did not purport to be complete. It recited that it did not include bills to the amount of about $2,000 due that month. It gave the bank balance on June 1 as $6,851.17. On June 4 a partition of real estate was made by a contract which included disposition of the real estate of the grocery company. By the partition the trustee received a farm, Leo I. Stadden received the Stadden home and some other tracts of small value, and Lillian M. Prager received the grocery-company store building and warehouse. Differences in value were adjusted by a satisfactory method. This contract was approved by the court, and was ratified by the beneficiaries by an election which precluded them from disputing its propriety or conclusiveness. On July 1 Leo I. Stadden and McLaughlin furnished the trustee statements of her account with the grocery company, and under date of June 30 McLaughlin furnished her a statement of the assets and liabilities of the grocery company, which reads as follows:
“Port Scott, Kan , June 30, 1902.
“STATEMENT.
“Cash in bank...................... $3,046.89
Cash in bank (Cruce)........... 8.88
Bills receivable ................... 9,888.32
Ledger balance, store fixtures, worth, 1,527.41
Accounts receivable from all sources, 40,705.25
-$55,176’. 75
“Bills payable ..................... $7,686.57
W. Prager........................ 186.78
L. M. Prager...................... 7,424.73
L. M. Prager, Trustee.............. 13,293.35
Odds and ends...................... 104.95
-$28,696.38
“Some entries made since June 1 have changed accounts receivable a trifle.”
The increase in the indebtedness of the grocery company to the trustee from $10,072.12 in December, 1900, to $13,-293.35 on June 30, 1902, resulted from the bank-stock transaction considered in Hart v. Bank, supra, the real-estate partition, and balancing of some minor debits and credits. With the statements referred to before. her, the trustee allowed liquidation of the grocery company to proceed, without suit or other demand for payment of her claim. In October she received a partial payment. There is no finding that diligence was not used in collecting the assets of the grocery company, that more money could have been realized than was realizéd, or that any of the money derived from the grocery-company assets' was misapplied or improvidently consumed. The trustee received 36 per cent of her claim.
The findings of fact approved the conduct of the trustee in her administration of the Trust for nearly fourteen years, except in the single respect that she failed to collect of the grocery company and of her predecessor the full amount of the debt due from the grocery company, when she might have done so. The trustee moved to set aside the findings on which liability was predicated. The beneficiaries, entertaining a conception of the case radically different from that reflected by the.findings, moved to set them aside. Both motions were denied. Judgment was rendered against the trustee for $15,-527.21, and.she appeals. The beneficiaries file a cross appeal.
The findings of fact of which the trustee complains are the following:
, “24. On December 29, 1900, the date of said [personal property] contract, the debt of $10,072.12 as specified in said contract as due from the I. Stadden Grocery Company to the said Leo I. Stadden as trustee for the respondents, was at said time worth said sum in cash, and that said sum of $10,072.12 could have been collected from the I. Stadden Grocery Company.
“25. That during the lifetime of the said Nellie D. Stadden and during all the time that the said Leo I. Stadden was trustee for these respondents, the said I. Stadden Grocery Company was solvent and able to pay all of its debts and obligations, including the said sum owing to the said Leo I. Stadden, as trustee.
“28. While the said Leo I. Stadden acted as trustee for the respondents, he neglected the interests of the respondents and of the trust estate, and made no effort whatever to collect in, preserve or invest the said trust estate for these respondents. That during the time the said Leo I. Stadden was trustee, no part or portion of said trust estate whatsoever was- used for the benefit, the education, or maintenance of these respondents, nor did these respondents, during said time, receive any benefit of any nature whatsoever therefrom. That the said Leo I. Stadden failed to keep or preserve any books, records or papers showing the way in which said trust properties were handled. That it was his duty as such trustee so to do. Said Leo I. Stadden violated his duty as trustee, and his acts and conduct in the handling of the properties belonging to the trust estate, by reason of his carelessness and willful neglect, resulted in loss and damage to the respondents.
“31. On May. 26, 1902, the I. Stadden Grocery Company’s assets consisted of real estate of the value of $9,000, a stock of merchandise of the value of $32,137.81, of cash in bank of $6,851.17, of accounts receivable of $40,705.25, of bills receivable $9,888.32, and of store fixtures estimated to be worth $1,527.41, making an aggregate of book assets of $100,109.96. On the same day, the said company was indebted to the Citizens National Bank in a sum of more than $27,000, to other note holders in the sum of $5,263.75, to merchandise and other creditors $20,972.24, to city creditors $165.30, to 'Leo I. Stadden $388.61, to Leo I. Stadden, Trustee, $13,293.35, to Lillian M, Prager $7,424.73, to W. Prager $186.78, and to odds and ends S104.95, aggregating aftotal indebtedness of more than $74,799.71; and at this time, Leo I. Stadden, Lillian M. Prager, and every other person interested in or connected with the I. Stadden Grocery Company, thought and believed that its assets were much more than sufficient to pay all of its debts and obligations, and this belief and opinion was a reasonable one under all the circumstances and the facts as known to them, and as shown by the books of the I. Stadden Grocery Company, and such belief and opinion was held and shared in by Lee B. Hart, the father and natural guardian of the respondents herein, who was more familiar with the affairs of the grocery company than any other person, with the exception of Leo I. Stadden, and who was present in Fort Scott several times during the year and five months from the death of Nellie D. Stadden to June 1, 1902.
“49. That during the years 1901 and 1902, the said Leo I. Stadden and the I. Stadden Grocery Company and each of them owned properties and assets from which they could have paid or could have been compelled to pay all sums due from either of them to the said trust estate; that the capital stock of the I. Stadden Grocery Company, held in trust for the respondents, on the 26th day of May, 1902, the date of the appointment of Lillian M. Prager as trustee, was practically worthless; that the said Lillian M. Prager, trustee, made no effort to collect from the said Leo I. Stadden and the I. Stadden Grocery Company, sums due from them or either of them to the trust estate, except that she or her husband received such sums as Leo I. Stadden. paid to them; that had she made proper effort to do so, she could have collected the same; that in her failure to make proper effort to collect in and take possession of all moneys due and belonging to the trust estate, she violated her duties as a trustee and is guilty of neglect and carelessness, and has rendered herself liable and is liable for the failure to collect from the said I. Stadden Grocery Company and the said Leo I. Stadden, the former trustee, the amounts due from the said grocery company, as hereinafter set forth in finding No. 50, which should have been collected within a reasonable time after she became trustee; that such reasonable time would be to June 1, 1903.”
When considering these findings, several others must be taken into account. Finding No. 32 reads as follows:
“On May 26, 1902, the I. Stadden Grocery Company sold its stock of merchandise to the Fort Scott Wholesale Grocery Company, for the sum of $32,137.81; and this money was promptly used by said grocery com pany in the payment of its indebtedness to the bank, its indebtedness to its other note holders, and its indebtedness to its merchandise creditors; and from the proceeds of said sale and such collections as were made between that time and June 30, 1902, the grocery company reduced its indebtedness to $28,696.38, consisting of the following items: Bills payable $7,686.57, W. Prager $186.78, L. M. Prager $7,424.73, L. M. Prager, Trustee, $13,293.35, and odds and ends $104.95.
“The hooks of the Citizens National Bank, showing the account of the I. Stadden Grocery Company with that hank from May 23, 1902, until the close of the account on October 6, 1903, were introduced in evidence; and those accounts show that on May 23, 1902, the grocery company had a balance on deposit of $2,176.42, and the subsequent deposits, including the $32,137.81 realized from the sale of the stock of merchandise of the company and the subsequent collections of the company upon its accounts and bills receivable; and said accounts also show the subsequent checks of the company against its deposits, during said time, for the payment of its debts and obligations.
“Until the sale of its business, as herein set forth, the I. Stadden Grocery Company appears to have kept a very full and complete set of books, showing the condition of its affairs and business, through A. J. McLaughlin, an experienced and capable bookkeeper; after the sale of the business of the company, these books passed into the possession of Leo I. Stadden, who was the president of the company at the time of the sale. These books were not only very numerous in number but were very bulky, and required considerable space in which to keep them. The said Leo I. Stadden retained possession of them until just before he removed to California to live, in the year 1907, at which time he destroyed them, except three leaves which purport to show the account of Lillian M. Prager as an individual, and Lillian M. Prager as trustee for the rer spondents, with the company, and these leaves were introduced in evidence; and while those leaves differ in some of the items from the statements furnished by McLaughlin and Stadden to Lillian M. Prager on July 1, 1902, the differences do not affect the determination of this controversy.”
Finding 36 relates to the real-estate partition, and reads in part as follows:
“This contract was promptly recorded in the office of the register of deeds of Bourbon county, Kansas.
“Just before the making of this contract, Lee B. Hart, who was an attorney at law and the father of the Hart heirs, was in Fort Scott, Kan., and the contract was written at his request, and at the request of Leo I. Stadden, by W. W. Padgett, an attorney of Fort Scott; the valuations of the real estate, inserted in the contract, were fixed and agreed by the said Hart and the said Stadden, and as fixed and agreed, furnished to the said Padgett; Lillian M. Prager, while a party to the contract, in her individual right and as trustee, took no part in lire valuations of the real estate, and relied upon the wishes and opinions of her said brother and her said brother-in-law; it was the expressed wish and desire of the said Lee B. Hart that his children should receive and have the farm, and his wishes and desires in this particular were acquiesced in and acceded to by Leo I. Stadden and Lillian M. Prager; the said Hart left Fort Scott for the state of Washington shortly before the making of the contract, but he was, immediately after it was executed, furnished a copy by Leo I. Stadden, and that copy remained in his possession until his death, and was found among his papers after his death by his brother, John B. Hart, the uncle and one of the attorneys of respondents in this proceeding; the • said Lee B. Hart died in Arizona in the year 1908; he was in Fort Scott frequently from 1902 until his death, visiting his brother-in-law, Leo I. Stadden, and his sister-in-law, Lillian M. Prager; he was familiar with the manner in which the said farm was being rented and being handled by Lillian M. Prager, as trustee for his children, and during his lifetime he made neither demand nor complaint to said Lillian M. Prager that any different manner of handling the said farm should be adopted, or that the contract of division was not just and equitable; . . .”
Finding 47 reads as follows:
“At the time of her appointment as trustee for respondents, Lillian M. Prager owned and held in her individual right, a debt against the I. Stadden Grocery Company of more than fifty per cent of the indebtedness of that company to her as trustee for respondents, and also more than $10,000 worth of stock of the I. Stadden Grocery Company that was turned over to her as trustee for respondents; in all her transactions with reference to the trust estate of respondents, she acted with the same care and prudence with which she acted in the management and conduct of her own interests in the I. Stadden Grocery Company; she adopted and pursued for the collection of her own claim and interest the same course of action which she adopted and pursued for the collection of the trust estate.”
The trust estate consisted of some articles of personal property which were duly accounted for, and which may be omitted from further consideration; of bank stock accounted for as shown in the case of Hart v. Bank, supra; of an interest in real estate accounted for by the partition contract; of shares of grocery-company stock which came into the trustee’s hands, but which were worthless when received; and of the claim against the grocery company, arising from the credit on its books. The trustee’s liability for this claim is not for something which she received and for which, under well-recognized principles of trust administration, she must strictly account, but is for something which she never had. It was no fault of hers that her predecessor had not collected the debt from the grocery company before her appointment. She can be held responsible for none but her own delinquency, and the measure of her duty was good faith and reasonable prudence and diligence.. The court based its conclusion that the trustee should account for the full amount of the debt on solvency of the grocery company on the day of her appointment, and loss to the trust estate by reason of failure to collect the debt by June 1, 1903. The trustee asserts that the finding of solvency of the grocery company rests entirely on evidence improperly received.
A part of the evidence objected to is the account of the grocery company with the Citizens National Bank’ of Fort Scott for the month of May, 1902, and the account of the grocery company with the bank from May 23, 1902, to the close of the account on October 6,1903. The account for the month of May appears to have been disregarded in making up the findings of fact. The other account discloses the information stated in finding 33, was the best evidence obtainable regarding liquidation of the grocery company, because of destruction of its books, and was quite informing. The objection made to it really reduces to lack of certification of the particular tran-.script of the bank books which was offered, an objection which the. court regards as formal rather than substantial.
In a deposition given by Leo. I. Stadden on February 2, 1917, the following questions and answers appear:
“Q. When you resigned as trustee you were perfectly solvent, were you not? A. I was.
“Q. And you could have paid the value, of the [bank] stock had you been compelled to pay it, could you not? A. I expect I could.
“Q. At the time when the contract, Exhibit ‘A’ (the personal-property division contract), was entered into December 29, 1900, was the I. Stadden Grocery Company solvent? A. Yes.
“Q. Could it have been forced to pay this sum of money if a suit had been brought and collection forced? A. Yes, I think so.”
The trustee objected to consideration of the answers because the questions called for conclusions of the witness instead of for facts — that is, for some fair enumeration and valuation of assets and liabilities from which the court might determine the question of solvency or insolvency. The action was not directed against Leo I. Stadden, but against Lillian M. Prager, and his admissions, made long after the events under investigation occurred, could not bind her. The sub jeet to which the testimony related was not simply the general standing or credit of the grocery company. The issue was not one permitting a mercantile condition to be indicated by abbreviating or summarizing word or phrase. The trustee was called on to account for the loss of real money, and she could not be made liable by judgment for a definite sum except on proof of facts from which ability to collect a definite sum from the grocery company might be asserted with reasonable assurance.
The presumption is that in its final decision the court disregarded testimony which it ought not to consider. The presumption may be indulged in this instance if proper evidence of solvency may be discovered; otherwise the finding of a material fact is vitiated.
If the court derived its inference of solvency from the statements of account included in the findings of fact, and from the bank account of the grocery company incorporated in the findings of fact by finding 32, it was mistaken. Finding 31 undertakes to state the financial condition of the grocery company on May 26, 1902, just before sale of its stock of merchandise for its value, $32,137.81. On May 26 the grocery company did not have cash in bank in the sum - of $6,551.17. That sum was evidently taken by the court from McLaughlin’s statement of the bank balance on June 1, which was not, in fact, the correct balance on June 1. No bank transaction is recorded for May 24 or May 25, and the balance carried over from May 23 to May 26 was $1,550.31. Besides the proceeds of the sale of merchandise, collections made between May 26 and June 1 were deposited, checks drawn on the account were paid, and the actual bank balance on June 1 was $8,553.52. The bills receivable and accounts receivable stated in finding 31 as assets on May 26, are the bills receivable and accounts receivable contained in McLaughlin’s statement of June 30. From May 26 to July 1 more than $18,000 were collected from this source. The total assets on May 26 are called “book assets.” No value whatever is assigned to the bills and accounts receivable, listed at more than $50,000, and consequently, finding 31 does not present the true -financial condition of the grocery company on May 26, at all. Finding 31 includes among the assets of the grocery company on May 26, real estate of the value of $9,000. The trustee, as such, received the full benefit of this real estate by the partition contract made on June 4. Having once had the benefit of this item, the beneficiaries cannot use it again as a source from which the trustee might have derived funds wherewith to satisfy the grocery-company book account.
McLaughlin’s statement of June 3 shows that if the cash in bank were applied to the payment of general debts of the grocery company — that is, debts other than those to Lillian M. Prager in her two capacities — there would remain unpaid but $17,256.39, plus bills for about $2,000 due in June. The deposits for June and July were $19,217.28. Substantially the entire bank account was appropriated to the payment of general debts before August 1, the bank balance on that day being $13.61; yet, in August and September more than $9,000 were paid out through the bank, on general obligations.
McLaughlin’s statement of June 30, adopted by the court in finding 32, shows the total general debts of the grocery company remaining unpaid to be $7,978.30. The cash in bank was given as $3,046.89. The true balance was $3,081.84. If the cash stated were applied to the payment of the debts stated, the unpaid balance would be $4,931.41, due on June 30. The deposits for July were $5,837.70; yet, as indicated, in August and September general debts amounting to more than $9,000 were paid from the bank account.
Finding 32 states that-the bank books show a balance of $2,176.42 in favor of the grocery company on May 23. The statement is not correct. Taking May 23, however, as a starting point, the bank books show a credit of $2,176.42 and a debit of $1,309.46, or a balance of $866.96. On May 26 the proceeds of the sale of merchandise were deposited, which, added to the balance, made a total on deposit of $33,004.77. This deposit was followed by others made in May, June, July, and August, amounting to $31,835.35. On September 1 the bank balance was $1,325.28, so that before September 1 there were paid, through the bank, on general debts of the grocery company, more than $63,500. After that, approximately $4,300 were paid on claims of the same character, making a total of $67,800. The court stated the total liabilities of the grocery company as $74,799.71. If to the debts actually paid there be added the debt to the trustee, $13,293.35, plus the debt to Lillian M. Prager, as an individual, $7,424.73, or $20,-718.08 altogether, it is apparent the liabilities of the company-must have exceeded $88,500.
From September 1 to the close of the bank account in October, 1903, the total deposits were approximately $8,500. The bank balance on September 1 was $1,325, making a total of $9,825. This amount would not satisfy the claim of the trustee alone by more than $3,400. Out of bank deposits the trustee received, in her two capacities, approximately $4,500. The proceeds of grocery-company assets which she received from all sources, she distributed, two-thirds to the trust estate and one-third to herself. She derived nothing at all from grocery-company liquidation until October, 1902.
The result of the foregoing is that McLaughlin’s statements cannot be reconciled with the story told by the bank books. The assets of the grocery company were less, and the liabilities were greater, than the court found. The undisputed testimony of those who handled the grocery company’s bills and accounts receivable was that large sums were uncollectible. The grocery company was insolvent when it sold out and went into voluntary liquidation, and the bulk of the collectible assets were reduced to cash and were paid out on general debts with great rapidity, and before the trustee received anything.
In meeting the challenge of the trustee, that there is no evidence, considered by the court, proving solvency, unless it be Leo I. Stadden’s declaration, the beneficiaries say the McLaughlin statement of June 30 shows assets of more than $55,000 after all debts were paid. The McLaughlin statement did not place a valuation on the assets listed, and has been demonstrated to be unreliable. It is said that after the general debts of the grocery company were paid, it had in bank from $15,000 to $18,000. The computation ignores the portion of finding 32 relating to what the bank account shows, and the finding is abundantly supported by the testimony of Leo I. Stadden, and other evidence. It is said that on the death of the testatrix the grocery-company stock was appraised at $65 per share, and that in a certain transaction which has not been mentioned, the trustee and Leo I. Stadden dealt with the stock at a valuation of approximately $65 per share. The court properly found the stock was worthless. It is said that neither the trustee nor her husband, William Prager, who was her agent, and who was secretary and treasurer of the grocery company, denied solvency of the grocery company. Their opinions would have been quite as inadmissible as the opinion of Leo I. Stadden. It is said that solvency is shown by some mercantile reports made by the grocery company. The court excluded those reports from the evidence. It is said that a huge volume of assets of the grocery company have been chased into the possession of the trustee, and the question is asked, Who got the money? The statement and question disclose the theory of the case propounded by the beneficiaries, which, for reasons already indicated, is unsound, in fact and in law. Finally, it is said that Stadden’s statement was properly received in evidence. This court holds otherwise, and there is nothing else in the record sufficient to overcome the evidence of insolvency.
With the true condition of the grocery company determined, the conduct of the trustee is easily appraised. Everybody believed, and the court properly found the belief to be reasonable, under all the circumstances, that the grocery company was solvent. The trustee did not rest on that belief. She promptly applied to the proper persons for statements of account, with the result that it appeared the assets were liquid and sound, that on July .l the outstanding general obligations amounted to less than $8,000, that there was more than $3,000 cash in the bank, and that there were other assets totaling more than $52,000. There is no dispute that realization on the grocery company’s assets was well conducted. Collections were speedily being made, and' there was no valid reason whatever for the trustee to interfere. The fact that in October, November, and December, 1902, she received only $2,550, was sufficient to put a reasonably prudent person on inquiry; but until the- close of the year, or near the close of the year, nothing occurred to require the trustee to resort to adversary measures. By that time only the husks of the grocery company remained, to the amazement of everybody, excepting, probably, Leo I. Stadden, and Lee Hart, father of the beneficaries. The only practicable method by which the trustee could then have reached the assets of the grocery company, consisting of claims of divers kinds against numerous debtors scattered through several states, was by a receivership, which would not have netted her more money than she did in fact obtain. The testimony was that she received everything collected after close of the bank account.
The brief of the beneficiaries is filled with charges of deception, bad faith, dishonesty, fraud, conspiracy in the concoction of vicious schemes to deplete the trust estate, ■ and other moral delinquencies on the part of the trustee. - Many of the contentions of the beneficiaries in their cross appeal depend on the truth of these charges. To debate the subject in all its aspects and applications would require a volume, and the court contents itself with saying, once for all, that the findings of honesty, good faith, and innocence of intentional wrongdoing, are all approved. The prudence and reasonableness of the conduct of the trustee are to be judged by the facts as they existed in 1902, not as they appeared fifteen years later; and from the findings of fact, modified by eliminating solvency of the grocery company, the court concludes the trustee is not chargeable with the grocery-company debt on the ground of breach of duty in not enforcing payment by the grocery company.
In stating the account of the trustee with the grocery company, the court made use of the ledger leaves singularly preserved by Leo I. Stadden, referred to in finding 32. The trustee asserts they were improperly received in evidence. That the trustee had an account with the grocery company is, of course, not in dispute. Indeed, that account disclosed a large portion of the assets of the trust estate, and the trustee herself depended upon it with respect to both debits and credits. The first thing she did after appointment was to ask for statements of that account, which she received. Leo I. Stadden testified that she was regularly furnished statements of the account, and she admitted receiving statements other than those specifically requested. Identity of the ledger leaves was established by the testimony of Leo I. Stadden, and William Prager gave it as his best judgment that the sheets were leaves from the ledger of the grocery company. The entries were in the handwriting of McLaughlin, the bookkeeper, up to the time he left the company.' After that the entries were in the handwriting of Leo I. Stadden, who had possession of the books and kept the accounts. Under these circumstances, the evidence was properly received.
The court found the grocery-company debt could have been collected from Leo I. Stadden, and that the trustee was at fault for not doing so. The debt of the grocery company was not an asset of the trust estate by virtue of any act or conduct of the trustee. She was not accountable for any depreciation in value suffered before it came to her, and she accounted for it as it came to her. Her breach of duty, if any, consisted in not realizing the debt by judgment and execution against Leo I. Stadden. There is no law declaring that an incoming trustee must always sue his predecessor. The duty to sue comes into existence, or does not come into existence, according to circumstances, very often circumstances of considerable variety and complexity. One circumstance is whether or not anything may be gained by suit. Lillian M. Prager was trustee of the estate in controversy, not the district court, or this court, or anybody who might clamor about her conduct. One of her functions as trustee was to determine whether or not she ought to sue her predecessor. There is no law which declares an exercise of the judgment and discretion vested in a trustee to be prima facie a breach of duty. The legal presumption is the other way, and before the debt of the grocery company can be charged to the trustee, diminution in value before it came to her, and ability to recoup the loss to the trust estate from Leo I. Stadden personally, must be established.
The finding that Leo I. Stadden had assets from which he could have paid, or could have been compelled to pay, all sums due the trustee from the grocery company and from him, rests largely on his admission of solvency. He had received some personal property from his father’s estate in 1888, but what he had done with it is not disclosed. His bank account from September 6, 1902, to the close of the account by taking up an overdraft on July 26, 1903, was introduced in evidence, over objection of the trustee. The court is of the opinion the account was admissible for what it was worth, but it had practically no probative value because there was no explanation of either debits or credits. . The account begins after he had collected the balance due him from the grocery company, shown on the McLaughlin statement of June 3, and begins with a balance of $3.70. The only real estate of consequence which he derived from the partition of June 4 was his homestead. The remainder was designated as odds and ends. He turned over his bank stock to the bank on the grocery company’s indebtedness. His grocery company stock was worthless. During the five years he remained in Kansas he possessed common articles of personal property, and owned some horses, one a driving horse; but what his assets and liabilities were at any time was not established, and the finding that more than $13,000 could have been collected from him between May 26, 1902, and June 1,. 1903, is not sustained without taking into consideration his admission of solvency.
The reason for excluding evidence of that kind in cases of this character becomes apparent when the particular testimony is scrutinized. The witness said he was perfectly solvent. When asked if he could have been compelled to pay the value of the bank stock, which was $2,000, he became less positive, and returned a qualified answer. There can be no doubt whatever that he did not regard the entire book account of the grocery company as an additional charge upon his assets, and likewise collectible from him. Therefore, in such a situation, the law does not dally with random opinions and conclusions, but demands production of facts.
The result of the foregoing is that finding 49 and dependent findings 50 and 51 must be modified.
Finding 21, relating to the bank-stock transaction described in Hart v. Bank, supra, requires notice because, if a breach of trust occurred, the bank might have been held responsible. The finding is approved, because the transaction did not constitute the common case of a loan or investment of trust funds on unauthorized security. The grocery company was the golden horn of plenty out of which the trust estate came. A part of the estate consisted of a credit standing in the name of the testatrix on the grocery company’s books. A part of the estate consisted of 190 shares of stock of the grocery company, to which, under the existing statute, double liability attached. The will gave the trustee express authority to hold the stock. Its value was lessened in proportion to liability for the bank debt, and would be increased by payment of the bank debt. The grocery company was supposed to be as sound as the bank. The transaction was conducted in entire good faith, the trustee using $2,000 of his own bank stock in the same way at the same time. The trustee exercised his best judgment in what at the time appeared to be a reasonable and prudent way, and while a trustee differently situated might not be allowed to use funds differently related in similar manner, the court holds it cannot be' declared, as a matter of law, that the trustee was guilty of a breach of trust. In the opinion in Hart v. Bank, supra, the transaction was treated as a breach of trust, solely for purposes of a decision applying the statute of limitations.
Finding 39, relating to adjustment of differences in value of real estate partitioned, reads as follows:
“In the contract of June 4, 1902, in and.by which the real estate was partitioned among the interests involved, the sum of $890.58 was declared to be due from Lillian M. Prager as an individual, to Lillian M. Prager as trustee for the Hart heirs, by reason of the difference in the value of the real estate agreed upon which was partitioned to Lillian M. Prager as an individual and to her as trustee for the said Harts; this sum was not paid by Lillian M. Prager to herself as trustee in money, but the matter was handled in the same way that other transactions were handled, and which have been hereinbefore set forth. There was also a sum to be paid by Lillian M. Prager to Leo I. Stadden, growing out of the difference in value of the real estate awarded to them. In both instances, these differences were settled by having the account due from the I. Stadden Grocery Company to Lillian M. Prager as an individual, charged with the respective amounts and the accounts due Leo I. Stadden and Lillian M. Prager as trustee, credited with the respective amounts. I find that at the time of this transaction both Leo I. Stadden and Lillian M. Prager, as well as every one connected with or interested in the I. Stadden Grocery -Company, was of opinion and believed that there was not the slightest question about the ability of the I. Stadden Grocery Company to pay in full all its debts and obligations, and that Lee B. Hart, the father of the Hart heirs, not only shared this belief and opinion, but was fully cognizant of the entire transaction from the beginning, and during his lifetime made no objection to nor complaint of it, or to the manner in which the difference was adjusted, and that in wha.t she did, Lillian M. Prager intended no fraud, wrong or injury to the trust estate, and was actuated by an honest' purpose toward her nephew and nieces, and had no thought of benefit or advantage to herself.”
The court approves the finding as stating the facts, but the facts are not sufficient to excuse the trustee from liability. The law regards the money due from Lillian M. Prager to herself as trustee as being in her possession the moment the contract became effective. Being in her possession, she is required to account for it, and it is not enough for her to say that she satisfied her obligation by procuring the grocery company to. undertake payment. The grocery company was no longer a going concern, as it was at the time of the bank-stock transaction. It had gone out of business, was engaged in paying its debts, instead of contracting new ones, derived no benefit from the attempted increase in its liabilities, and in the end did not pay; consequently, the trustee should be charged with 64 per cent of the item, with simple interest from June 4, 1902.
Many other subjects are dealt with in the briefs. There is no substantial disagreement between counsel for the respective parties regarding the rules of law governing the case, except in respect to matters already discussed. They are very far apart in their interpretations of the evidence. The court has carefully considered the findings of fact in the light of the evidence abstracted and in the light of some of the original evidence, and has carefully considered all the elaborate arguments of counsel. The conclusion is that the findings are sufficiently complete; every material finding, except as noted, is sustained by sufficient competent evidence; and the findings so sustained are approved. Because solution of the controversy depends on what the facts are, it would not be profitable to extend this opinion further.
Lee Hart, father of the beneficiaries, was himself a lawyer. As the court found, and the finding is well sustained, he was probably more familiar with the affairs of the grocery company than any other person except Leo I. Stadden. During the five or six years he lived after the events of May and June, 1902, he made no complaint of the conduct of the trustee, who accepted appointment at his solicitation. Fourteen years after the bubble of the grocery company burst, it fell to an uncle of the beneficiaries, also a lawyer, to commence and conduct vicarious litigation. When the beneficiaries became arrayed against their aunt and trustee, their father was dead. McLaughlin was dead. Leo I. Stadden had long been a resident •of California. The books of the grocery company had been destroyed. Apparently, all discoverable documentary evidence has been produced, and all other evidence which the parties desired to introduce has been canvassed at a very full and fair trial. Under these circumstances, the controversy ought to end.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment in accordance with the views which have been expressed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action of replevin brought by the Davidson and Case Lumber Company to recover the possession of the forms and material used in the construction of a concrete building, the right to possession being claimed under a chattel mortgage executed to the lumber company by R. A. Anderson and his wife. The Widmer Engineering Company claimed the right of possession under a provision of a building contract. It was found by the jury that the plaintiff was entitled to the possession of the property, and a judgment against the engineering company which had retained possession of the property was rendered, awarding the plaintiff damages in the surmof $4,100. The engineering company appeals.
It appears that a contract was let to the Selden-Breck Construction- Company to erect a ten-story hotel at Wichita, and that the company sublet the furnishing and installing of the forms and frames into which the concrete was to be poured, to the engineering company, and that company in turn sublet the furnishing and installation of the forms to R. A. Anderson. The contract with Anderson was executed on September 13, 1917. Shortly afterwards Anderson purchased the lumber and material for the forms from the lumber company, and on November 7, 1917, he began the work of making and installing the forms for the concréte construction. This work was continued until he had reached the fourth story, following the ordinary plan that when the concrete for the first story was poured and had hardened, the forms were removed and used for the story above. On March 2, 1918, and while at work on the fourth story, Anderson found himself in financial stress and unable to pay his workmen or go forward with the work. At that time he was owing the lumber company $3,700 for material used in his forms, and also $400 to a bank, which he had. borrowed to carry on the work. The claim of the bank was assigned to the lumber company, and on March 5, 1918, Anderson executed a chattel mortgage on the forms and appliances he was using in the work to the lumber company. On the evening of March 2,.after the engineering company had been informed of Anderson’s default, it caused a notice to be served upon him to the effect that if Anderson did not proceed with the work, the engineering company would at the end of three days cause it to be performed by others, at the expense of Anderson. The lumber company served notice upon the Selden-Breck company and the engineering company that it deemed itself insecure and demanded possession of the property under its mortgage. The engineering company claimed the right to the possession of the same under its contract with Anderson, and refused to deliver possession. The present action was then brought, and the engineering company gave a redelivery bond, retaining possession of the forms and material, and has continued to use them throughout the construction of the hotel. The right to the possession of the property was the principal question involved in the controversy, and with it the extent of damages sustained by the plaintiff because of the detention and use of the property by the engineering company. In connection with the general verdict that the lumber company was entitled to the possession of the forms and appliances, the jury returned special findings to the effect that Anderson was in the possession of the property at the time the chattel mortgage was executed, that the lumber company had a special ownership in the property to the extent of $4,268.28, and found that the property had deteriorated in value since the commencement of the action, to the extent of $4,100. It is insisted by the engineering company that it had-a superior right to the possession of the property under section five of its contract with Anderson, which is as follows:
“5. Should the subcontractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper-quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, the contractor, with the approval of the architects, shall be at liberty, after three days’ written notice to the subcontractor, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the subcontractor under this contract; and if such refusal, neglect or failure is sufficient ground for such action the contractor shall also be at liberty to terminate the employment of the subcontractor for the said work and to enter upon the premises and take possession, for the purpose of completing the work included under this contract, of all materials, tools and appliances thereon, and to employ any other person or persons to furnish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the subcontractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the contractor in finishing the work, such excess shall be paid by the contractor to the subcontractor; but if such expense shall exceed such unpaid balance, the subcontractor shall pay the difference to the contractor. The expense incurred by the contractor as herein provided, either for furnishing materials or finishing the work, and any damage incurred through such default, shall be chargeable to the subcontractor.”
In pursuance of this provision the engineering company gave the following notice to Anderson:
“Mr. R. A. Anderson, St. Louis, Missouri.
“Dear Sir — This is to notify you, R. A. Anderson, that you have failed and neglected to fulfill the items of your agreement with the Widmer Engineering Company, of St. Louis, Mo., as contained in article 6 of your contract with the said Widmer Engineering Company. You have further admitted and represented to the said Widmer Engineering Company that you would be unable to continue under the said contract. It appears further that you will be unable to fulfill said contract.
“This, therefore, is a three days’ notice provided for in said article 5 in said contract, and you are further notified that unless you fulfill completely each item in said article 5 in said contract, with the said Widmer Engineering Company, that said company, after three days’ notice, expects to have said work performed and said materials furnished and said contract fulfilled in whatever particular you may fail, and that the expense for said work shall be charged against you and deducted from any money in the hands of the said Widmer Engineering Company owing to you.
“This notice is given as provided for in said contract and is sent by the approval of the architect for said building. '
“(Signed) E. V. Guyther,
“Widmer Engineering Company.”
It appears that the chattel mortgage had been executed and filed for record before the expiration of the time fixed by the notice. Under the facts, the lumber company had the superior right to the possession of the mortgaged property. While the property was used on the hotel premises it comprised forms and appliances which did not enter into the construction of the building. It was the property of Anderson, when the mortgage was executed, and the engineering .'company did not even assume to be entitled to the possession of the property when the notice was given. The contract provided that if Anderson neglected or failed to perform the condition of the contract, the engineering company would be at liberty after three days’ notice to terminate the employment, take possession of the material, tools and appliances used in completing the work, and further might appropriate any unpaid balance due Anderson on the contract so far as it was needed to finish the work. Instead of claiming the right to immediate possession, the engineering company by its notice, in effect, said to Anderson: “Your failure to continue the work has been brought to our attention and if you do not proceed with it in fulfillment of the terms of the contract, we will, at the expiration of the three days fixed in the notice, provide the material and complete the work at your expense, and such expense will be deducted from any money in our hands owing to you. The lumber company was given a specific lien on the property while it was owned and in the possession of Anderson, and before the engineering company had the right to take possession of it. Its right to possession did not accrue until the expiration of the three-day period provided for in the contract, the measure of which was fixed in the notice itself. It is urged that the inability of Anderson to complete the contract was well known to the lumber company on March 2, and before the prescribed limit had expired. However, the engineering company did not assert a right to possession until after that period, and only proposed to assert the right and go into possession in case Anderson did not then go on with the work in fulfillment of his contract. Much reliance is placed by the engineering company upon Duplan Silk Co. v. Spencer, 115 Fed. 689, where it was held that materials brought by a contractor on the premises for the erection of a building under a like contract gave the owner a qualified right to the material as against the claim of a trustee in bankruptcy who was seeking to subject the property to the claims of general creditors. The essential facts of that case differed materially from those involved here. There the contract was between a contractor and the owner of the premises upon which the building was being erected. The material delivered upon the land of the owner was brought there for the purpose of being incorporated in the structure which the contractor was building. Besides, there was a supplemental oral agreement between the parties that the material so delivered should stand as security for an advance of a large sum of money made by the owner to the contractor. In this situation it was decided that the owner had a qualified possession and right in the materials which he would assert against the contractor or the general creditors represented by the trustee in bankruptcy. In this case the contract is not between the owner and the contractor, but is between two subcontractors. The forms and appliances involved here were not intended to be incorporated into the building under construction as was the material in the cited case. There was no supplemental agreement that the forms and appliances should stand as security for an advance of money and no turning over of the possession. In the cited case it was held that the materials which were to be built into the structure were sufficiently within the possession of the owner to protect its right under the agreement made with the contractor, and to give notice of such possession and right to all interested parties. There the contractor could not have asserted a right to possession as against the owner, and the general creditors could only claim such rights as the contractor held. Here the forms and appliances were to be used in erecting the building substantially as tools are used, and were not to be built into the hotel. The exclusive possession of them remained in Anderson, and this was recognized by the engineering company in the notice that it gave. Until this possession was lost, Anderson had the right to mortgage the property and, as we have seen, the mortgage to the lumber company was executed before the lapse of the time specified in the notice. Whatever the right of the engineering company under the contract may be designated, it is clear that it had not acquired possession of the property when the mortgage to the lumber company was executed. The nature of the property is an important element in determining the rights of the parties. All understand that material to be incorporated in a building is in a sense in the possession of the owner, but tools and appliances of a contractor are not so regarded. Here the forms and appliances had not been purchased by Anderson and were not in existence when the contract in question was made, and the use of them in making the building did not carry notice to the world that another subcontractor had a special interest or right of possession in them. We think the mortgage to the lumber company gave it the superior right to the property. (Titusville Iron Co. v. City of New York, 207 N. Y. 203.) The case of In re Shelly, 235 Fed. 311, and the same title in 242 Fed. 251, follow the authority of Duplan Silk Co. v. Spencer, supra, and are not applicable to the facts of the present case.
The right of the lumber company was not impaired by the fact that one of its officers knew that Anderson had a subcontract under the engineering company, nor that he had ceased work before the mortgage was executed. The lumber company had a valid claim and was entitled to the benefits of its diligence in securing a lien until someone else gained a superior right. Besides, the engineering company itself interpreted its contract that it had no right to possession unless Anderson should fail to resume and carry on the work at the end of the three days named in the notice.
A question is raised as to the measure of damages sustained through the use and detention of the property by the engineering company. Market value could not be shown, as property of that character manifestly had no market value. The forms were made for a special purpose, and their value was greatly lessened by use. In the absence of market value, it was proper to show the value of the material and labor in making them and any depreciation from their use until they were wrongfully detained by the engineering company. That company having given a redelivery bond and retained the property, became responsible for any deterioration in the value of the property since the action was commenced, and this the jury has specially found.
A motion was made to dismiss the appeal because the engineering company had set forth the judgment appealed from in an action brought in a court in Missouri. On the papers presented we have concluded that the engineering company did not intend to treat the judgment as a finality or waive its appeal, and hence the motion to dismiss was properly overruled.
Finding no error in the record, the judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff’s barn and contents were destroyed by fire claimed to have originated from sparks from one of defendant’s trains. The property was insured, and the company settled and joined the plaintiff in suing the defendant for the full amount of damages. On the same day a fire occurred a mile southwest, caused by burning shingles from the Hammon barn, burning a pasture of prairie grass belonging to Mr. Otey. Otey brought suit and the case was tried immediately after the Hammon case. In the latter case the jury found for the defendant, and in the former, in which the testimony was practically the same, they found for the plaintiff. The trial court granted a new trial in the Hammon case, and from this ruling the defendant appeals.
The Midland Valley Railroad crosses the Kansas state line almost at right angles, and the Hammon barn was located in Oklahoma, 353 feet directly west from the nearest point on the railroad. The mow of the barn had been recently filled with' dry hay, and some loose hay was lying on the ground by the east door. This door was open. On the day of the fire a wind was blowing from the northeast, so strong that it carried burning shingles a mile away, setting fire to a pasture of prairie grass. There was testimony to show that no one was seen around the barn on the day in question after seven o’clock, and there was no fire on the place. The fire was first seen ten or fifteen minutes after the train passed.
Counsel for the defendant say the only question presented is:
“Is there any evidence that the fire originated from defendant’s train?”
While several railroad men testified that when an engine is coasting, as this one had been doing for about a mile, sparks cannot be emitted. F. W. Warf testified for the plaintiff that he got to the fire about thirty minutes after it had started and the barn was then all burned down. His attention was first called to smoke which he noticed ten or fifteen minutes after the train passed. He had noticed the train going past from the north when it hit the curve east of Hammon’s barn. Fred Campbell testified that he was a passenger on the train, that the lower barn door was open and he saw the hay in the mow, and saw the smoke after he got off the train at Hardy. Bert Gilliland testified that he was working northeast of the barn and noticed the fire ten or fifteen minutes after the train passed. He also testified that he saw clouds of smoke coming out of the engipe as the train passed; that an engine does not have to be pulling to make sparks go out of the smokestack; that the engine may be going idle and throw sparks. F. R. Ready was working for the plaintiff in a field three-eighths of a mile southeast of the house, and he testified that he helped fill the mow with hay and that there was some loose hay dropped around the door on the ground.
There was nothing to indicate any other source of the fire than the engine, and as the plaintiff’s ba,rn was seen to be on fire in ten or fifteen minutes after the train passed, with the wind blowing in the proper direction to carry sparks, it might be reasonably and logically concluded, and not as mere guesswork, that the fire originated from the defendant’s train.
It was not error, therefore, for the trial court to grant a new trial, and the ruling is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs commenced this action to cancel oil and gas leases given by them to W. S. Thomson, on certain property in Greenwood county. Judgment was rendered in favor of the plaintiffs on their motion for judgment on the pleadings, and the defendants appeal.
The questions argued are that the court committed error in sustaining the plaintiffs’ motion for judgment on the pleadings, in rendering judgment cancelling the leases, and in refusing the motion of the defendants to set aside the judgment and permit them to amend their answer.
The defendants became the owners of the leases by regular assignments from W. S. Thomson. Two leases were given, each identical with the other except in the description of the property leased. Each lease was dated January 17, 1916, and contained the following provisions:
“It is agreed that this lease shall remain in force for a term of three years from this date, and as long thereafter as oil or gas, or either of them, is produced from said land by lessee. . . . If no well is completed on said land on or before the 17th day of January, 1917, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the First National Bank at Eureka, Kansas, or its successors, which shall continue as the depositor regardless of changes in the ownership of said land, the sum of Three Hundred Eighty and no-100 dollars, which shall operate as a rental and cover the privilege of deferring the completion of a well for twelve months, from said date. In like manner and upon like payments or tenders the completion of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first receipted herein, the down payment, covers not only the privileges granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred.”
No well had been completed under either lease on January 17, 1919, and none was commenced until about December 7, 1918. The answer alleged as excuses for not commencing to drill before the 7th day of December, 1918, that it was necessary to have an adequate supply of water to furnish power for running the machinery; that the defendants were dependent on water from rainfall that collected in ponds and creeks in the vicinity of the lands described; that until November 7, 1918, rain did not fall in a quantity sufficient to supply water for drilling; that they immediately thereafter began preparations for drilling a well, but on account of excessive rainfall the roads became muddy so that fuel for the engine and casing for the well could not be transported over the public roads; that a blizzard intervened which prevented the defendants, from carrying on their work; and that their employees became sick and were compelled to cease work and thereby interfered with the drilling of the well. The answer also alleged that it was impossible for them to obtain coal and casing on account of the action of the United States government in taking charge of coal supplies, in promulgating rules and regulations governing the use of coal for drilling purposes in the vicinity of these lands from about December, 1917, to May, 1918, in taking charge of all casing, and in prohibiting the purchase, sale and use of casing in drilling wells in territory not proven, which included these lands.
1. The principal question argued by the defendants is that on account of the excuses given by them, the leases should not be forfeited by reason of the failure to complete a well before January 17, 1919. The leases provided that they should remain in force for three years from their date, and that they should terminate in one year if no well was completed within that year; they also provided for an extension of the terms of the leases for another year, and still another year, by the payment of the rental named therein; but the leases terminated absolutely at the end of three years from their date, unless a well was drilled producing oil or gas. The leases did not contemplate that any circumstance or condition should excuse the lessee from performing the conditions of the leases on his part. By their terms ample time was given in which to drill a well. The lessee was compelled to take notice of the climatic conditions and of the topography of the country in the vicinity of the lands; he was likewise compelled to take notice of the powers of the government over coal and iron industries. The lessee with knowledge of these things contracted positively that he would do certain work within a certain time, and that after that time his rights in the premises should cease, unless gas or oil should be produced from the land by the lessee. Neither was produced.
This is not an action for a breach of a contract where excuses for its nonperformance might be pleaded. It is an action to cancel leases that by their terms had expired on account of the lessee’s nonperformance of their conditions. By paying the rent provided for in the leases, the lessee could neglect to drill until the leases expired, but the lessee, if he failed to produce oil or gas from the lands, could not, by paying rent, extend the leases one day beyond the time fixed for their expiration, nor could excuses for nonperformance extend the leases beyond that time. Doornbos v. Warwick, 104 Kan. 102, 177 Pac. 527, supports this conclusion.
The defendants cite Kays v. Little, 103 Kan. 461, 175 Pac. 149. That action was to cancel a ten-year lease because the rent due at the end of the first year did not reach the lessor on time on account of delay in the mails. The court refused to cancel the lease. In the present case the leases had expired and the lessee is attempting to extend their duration. Kays v. Little is not in point.
2. During the term at which the judgment was rendered, the defendants moved that the judgment be set aside and that they be permitted to amend their answer by alleging:
“That during the spring of 1918, the exact date of which the defendants are unable to give, but before drilling was actually commenced on said lands, the defendants informed the plaintiffs that they were contemplating drilling on the lands covered by said lease, but that the time was getting short, and that unless the defendants were assured that the lease would be extended so that they could complete the well, in case they were prevented from completing it within the time fixed by the lease, because of misfortune of unforeseen delays, they would not drill thereon, and thereupon the plaintiffs informed the defendants, that they did not care to enter into a formal contract to extend the lease, but that if the defendants should be prevented from completing said well by the 17th day of January, 1919, that the plaintiffs would make such concessions to the defendants as would permit them to finish said well, and be fully protected in their investment, and the defendants relied on said statements, and relying thereon went into possession under said lease and expended a large sum of money as aforesaid, and by reason of said facts the plaintiffs are now estopped from maintaining this action.”
In the motion the defendants said:
“As grounds for said motion, the defendants allege and say that through an oversight, the attorneys who drew the answer for said defendants, were not informed of the facts set out above, and as a result said facts were not incorporated in said answer, and the defendants did not discover that said allegations were not in said answer until after the court had rendered judgment in said cause.”
The motion was denied, and the defendants urge that the court thereby committed error. The facts which the defendants desired to set up in an amended answer were known to them at the time their original answer was filed. They should have communicated their whole defense to their attorneys. Judgment was rendered on May 28, 1919, but the motion to set aside the judgment was not filed until October 4, 1919. It was overruled on October 9, 1919. The defendants were not diligent in undertaking to have the judgment set aside. Permission to amend the answer before judgment was rendered or before trial was within sound discretion of the court and could have been granted or refused without error. After judgment and after a delay of four months there was no error in refusing to set aside the judgment and permit the defendants to amend their answer.
3. The defendants pleaded a tender of $860 on the 16th day of January, 1919, as rental under the leases, which tender was refused by the plaintiffs. The effect of that tender was within the issues presented by the pleadings and may have been considered by the trial court, but is not argued in this court. The parties probably rightly construed the contract as terminating on the 17th day of January, 1919, and probably understood that the tender did not have the effect of extending the lease for another year. This question would not be noticed but for the fact that it was presented to the trial court by the motion for judgment on the pleadings. The tender did not extend the leases beyond January 17, 1919.
No error appears, and the judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
The action was upon a promissory note. There was a verdict and judgment for the plaintiff', from which the defendant appeals.
On July 6, 1914, the plaintiff, Fred Shrader, was president, and the defendant, B. J. McDaniel, had been for a number of years cashier, of the Farmers and Merchants State Bank of Dexter. McDaniel, who had sold his stock to Shrader and was retiring as cashier, borrowed $490 from the bank, giving his note therefor. The bank gave him credit for the amount, and he gave a check to Shrader for the $490, which the bank paid. Subsequently, Shrader, who had guaranteed the bank’s paper to the reorganized bank, purchased the note from the bank and brought this action on the note. The answer set up two defenses ; that there was no consideration for the note, and that it was procured by duress of the bank and of Shrader.
The bank was originally organized with a paid-up capital of $10,000. It desired to come within the provisions of the bank guaranty law, and it was necessary to have a surplus of $1,000. Mr. Pollard, of Kansas City, Mo., owned a large portion of stock and was president of the bank. The defendant, B. J. McDaniel, had been connected with the bank from its organization, was the cashier, and in the active management of the bank. In order to show a surplus, Pollard and Mr. Esch, another stockholder, gave their note to the bank for $1,000 without any consideration. The bank transferred this note to a bank at Caney and took credit on the books of that bank for $1,000. This credit was reported as surplus, and in August, 1909, the bank was admitted to the benefits of the state guaranty fund. The books of the bank showed no liability to Pollard or Esch for the $1,000, which was carried as a balance in the Caney bank until March, 1911, when the Dexter bank purchased what is known as the Nicholson building for $2,500. The bank paid Nicholson $1,500 in cash and in the deed assumed and agreed to pay a mortgage of $1,000 on the building, held by Mr. Herpich. The mortgage was not due for five years, and the mortgagee did not care to accept payment. At Pollard’s suggestion, McDaniel, who wrote the deed, stated the consideration as $3,500. McDaniel represented the bank in the negotiations for the purchase of the building and secretly received a commission from Nicholson of $100 and a box of cigars. He testified that he did not believe that the president of the bank knew that he received the commission. After the deed had been recorded and returned to the bank, according to McDaniel’s testimony, Pollard advised him that it would have been better if it had not shown the assumption of the mortgage, and that it should have been assumed verbally. McDaniel thereupon put the deed in a typewriter and crossed out the statement that the bank assumed the mortgage. The altered deed was carried in a drawer where bank papers were kept,' until the latter part of June, 1914. Shrader had become connected with the bank and had bought some shares of stock in 1909. In 1911 he purchased half of the 52 shares owned by Mr. Pollard, and procured another stockholder to purchase the other half, and was made president. Sometime in June, 1914, there were negotiations for a consolidation of the bank with the First National Bank of Dexter. McDaniel sold his 14 shares of stock to Shrader and arranged to retire as cashier. The parties interested in the other bank learned of the $1,000 mortgage on the Nicholson building, and a bank examiner who was examining the bank and supervising the consolidation, learned of the false surplus and the alteration in the deed to the bank building. The negotiations between the two banks were held up until certain requirements of the bank commissioner were complied with. In order to carry out the consolidation, Shrader agreed with the bank commissioner to guarantee the owners of the bank that the surplus of $1,000 would be made good. McDaniel and Shrader talked the matter over by themselves, and according to McDaniel’s testimony, Shrader said, “We have got to straighten this up.” I said, “I don’t know how to do it.” He says, “We will make an assessment on all stockholders of ten per cent.” Shrader claimed that he had purchased McDaniel’s stock and the other stock on the representations that its book value was $110 a share. Two of the stockholders refused to be assessed, and McDaniel’s testimony is that he said:
“Rather than have trouble over it I will pay all of it. He (Shrader) said one time that he could cause the cashier trouble over this. I got afraid. I was afraid of a lawsuit. This is exactly what caused me to make the note.”
It is very evident that he did not desire a lawsuit, in view of his admissions that while cashier he had secretly taken a commission for negotiating the purchase of the bank building, and had falsely altered the deed so as to conceal the fact that the bank had assumed the mortgage; and it is probable that he did not care to have made public the facts concerning the manner in which the surplus of the bank had been increased, and especially the fact that, without any authority, he had directed the deposit which the bank had in the Caney bank applied to the payment of the Pollard and Esch note. The jury heard his explanation and that given by Shrader as to what transpired in the conversation between them when the note was executed, and found that there was nothing substantial in the claim that the note was executed under duress. The findings are that the plaintiff did not demand or request defendant to sign the note; and that he did not impliedly hold out the hope that if defendant signed it he would not be troubled with criminal charges. This disposes of the defense of duress.
The jury made a finding that there was a valid consideration for the note, consisting of the credit of $490 which the bank gave the defendant and paid out on his check. They further found that at the time he executed the note he was indebted to the bank, but this, we assume, means that at the same time he gave the note he got the credit. There was, manifestly, a valid consideration as between McDaniel and the bank. In exchange for his note, the bank gave him credit for $490 and paid out that sum on his check. It is true, the check was paid to Shrader, but the note was not satisfied; and afterwards the bank sold the note to Shrader, so that there was a consideration for the execution of the note in the first instance to the bank, and a consideration passing to the bank from Shrader for its purchase. It is argued, however, that there was no consideration for the note as between Shrader and McDaniel, because it is insisted the bank lost nothing by the transaction connected with the cancellation of the Pollard and Esch note, or the application of the credit in the Caney bank to the payment of those notes. And attention is called to a finding that the resources or liabilities of the bank were not changed by that transaction, and also to a finding that plaintiff knew and had been informed of the existence of the mortgage prior to the time the note sued upon was given. The plaintiff objected to the submission of the special questions to the jury. In our opinion, some of the questions should not have been submitted. The facts with respect to the execution of the Pollard and Esch note, and its sale to the bank at Caney by which $1,000 was placed to the credit of the Dexter bank, are not disputed. At Pollard’s request, McDaniel directed the Caney bank to apply the bank’s $1,000 deposit to the payment of the note, mark the note paid, and send it to Pollard. This is in substance what he admits. At that time Pollard had sold his stock and apparently had no further interest in the bank; but if he had been president of the bank, neither he nor McDaniel had any authority to decrease the surplus of the bank by directing the Caney bank to wipe out the deposit and apply it upon the note. When Pollard requested McDaniel to do this, the latter should have refused to do it, unless the bank commissioner authorized it to be done. He had no right to determine for the bank that Pollard and Esch were not liable on the note. They could not have resisted payment of the note in the hands of the Dexter bank; and the facts being undisputed, the question whether the bank sustained a loss of $1,000 by the cancellation of the deposit and the return of the note became and is a question of law and not of fact. It was, to say the least, a question of serious doubt whether Pollard and Esch could have recovered from the bank the voluntary payment they made for the purpose of increasing its surplus. By reason of his unauthorized act in applying $1,000 of the bank’s surplus to the payment of this note, McDaniel rendered himself liable to an action by the bank to compel him to restore the full amount. The subsequent muddying of the waters by the concealment of the true consideration for the purchase of the bank building (which the jury found occasioned no loss to the bank) could not relieve McDaniel from liability for his unauthorized disbursement of the bank’s credit in the Caney bank. The finding of the jury that the bank lost nothing by this transaction was contrary to the undisputed facts, and the question should not have been submitted.
The court submitted to the jury the issue of whether the note sued upon was given in compromise of a disputed claim the bank held against McDaniel, and although there was no direct finding to this effect, the general verdict must be held, to include such a finding. The numerous authorities cited by the defendant in support of the proposition that the existence of a dispute or controversy between parties is not a sufficient consideration to support a promise to pay money in settlement of it, where no valid demand for anything whatever exists in favor of the promisee (Price v. Bank, 62 Kan. 743, 754, 64 Pac. 639, and cases cited in the opinion) require little comment. Defendant’s entire argument on this question is based upon the unwarranted assumption that the bank could not have maintained an action to recover anything from him by reason of the manner in which he managed and controlled its affairs. It cannot be said that there was no foundation in law or in fact to support a claim that he was liable to the bank for his action in disposing of its surplus, wholly aside from what transpired in connection with the concealment of the assumption by the bank of the mortgage on the building.
On the subject of considerations for a compromise and settlement, Ruling Case Law has this to say:
“Like all other contracts, a compromise must be supported by a consideration. . . It is enough to support the agreement that there was a doubtful question, and a compromise fairly and deliberately made upon consideration, and the actual rights of the parties, whatever they may he, cannot affect the question. ... In general a moral obligation will not be sufficient to support a promise made upon a compromise of a disputed but otherwise legally groundless claim; but where there is a clear moral obligation on the part of one of the parties to a compromise, equity will consider it in support of the agreement.” (5 R. C. L., pp. 889, 890.)
In the same authority it is stated:
“If the element of good faith characterizes the controversy, and this, in the larger sense, is saying it is free from fraud, the best considered cases hold that the compromise should be supported without regard to the character of the claims; for if the merits of the claims are to be adjudicated in every instance the right of honest disputants decisively and finally to compromise and settle their controversy is denied, and this without assurance that the judgment imposed on them is less fallible than their own.” (p. 882.)
“It has been held that the dispute itself is not required to have been about a claim or matter actually doubtful. If the parties bona fide, and on reasonable grounds, believed it to be doubtful, it is a sufficient consideration to support the compromise, even if there is a certain defense to it” [citing Smith v. Farra, 21 Ore. 395]. (p. 882.)
Applying these rules to the undisputed facts, it is clear that as between Shrader and the defendant there was a consideration for the compromise of his liability to the bank. The amount it was claimed the bank had lost was agreed to be $1,000. The defendant, who, as cashier, was responsible for the loss, in order to avoid a suit to compel him to pay it, agreed to pay the assessment on 49 shares, 14 of which he had just sold to Shrader, and 35 of which were owned by two other stockholders. The rest of the deficit was paid by Shrader. The fact that Shrader had already assured the bank commissioner that he would see that the surplus was paid, did not relieve the defendant of liability.
In one instruction the court charged that before defendant could avoid the payment of the note, he must prove by a preponderance of the evidence that the bank would lose nothing by reason of his failure to pay the note. The bank was not a party, and there was no claim that the bank could lose anything by reason of the failure of the defendant to pay the note. The instruction should not have been given, but we fail to see how it could prejudice the defendant. - The court did instruct upon the controlling question, and the jury were told that there was some evidence that at the time of the giving of the note there was a compromise and settlement of the disputed liability on the part of the defendant to the bank. “And if you are satisfied from all the evidence that there was in fact a good faith dispute as to the liability of the defendant to the plaintiff or said bank, and if as a compromise and settlement of such dispute the note in controversy was given, then such settlement would be sufficient consideration to uphold ■ said note.” In view of this instruction and facts sufficient to sustain a general verdict upon that theory, most of the complaints with respect to the instructions need not be considered. The criticism of the instructions is largely based upon defendant’s theory that the bank sustained no loss in any way by the conduct of the defendant.
It follows that the judgment is affirmed.
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The opinion of the court was delivered by
' West, J.:
The plaintiff applied to the judge of the district court for the appointment of a receiver, alleging that the defendants were occupying the improvements on his farm and claiming the right to harvest the crop of wheat growing thereon, and were unlawfully keeping him out of possession to which he was immediately entitled; that the defendants were without means; and that the plaintiff would be without any adequate remedy at law if they were permitted to harvest the crop, which would be matured in about three weeks. The petition was filed on June 7, 1919, and on the same day the court appointed William Obley receiver of the crops and of the vacant untilled ground on the farm, authorizing and directing him to take charge of the property, to harvest the crop and care for it and have it thrashed, to market it subject to the further direction of the court, and to put in such crops on the unoccupied land as might be suitable. The receiver gave bond to the state of Kansas for the use and benefit of the defendants in the sum of $5,000, reciting that if he should well and faithfully perform his services and well and truly account to the court for the moneys had by him in virtue of the appointment, it should be void, otherwise of force.
The defendants moved to vacate the order of appointment, alleging that it was made without jurisdiction and without notice; that Obléy was not a proper party because interested in the outcome of the action; that no proper bond had been filed, and that the order adjudicated the issues involved without the,intervention of a jury. On the hearing of the motion Obley testified that he farmed other land of the plaintiff and did some other work for him on a salary, such as taking care of cattle and feeding them; that on being appointed receiver he cut the wheat and thrashed it, paid the grocery bill for the food for the men and their wages, and that he put the proceéds in the bank in the name of one of his bondsmen, and had cut all the wheat worth cutting, putting 420 bushels in the granary for the landlord, and selling the remaining 480 on the market. The motion for his discharge was denied, and the defendants appeal from this and from the order of appointment.
The plaintiff has 'filed no brief. The defendants’ counsel contend that the judge exceeded his power in appointing a receiver; that he had no jurisdiction of the subject matter or the parties, and had no authority to make the appointment in an ex parte proceeding at his chambers outside the county; that the province of a jury was usurped, and that the order was issued without notice and without a hearing.
In Feess v. Bank, 84 Kan. 828, 115 Pac. 563, it was said that it is only in cases of the greatest emergency that courts are warranted in tying up business or property or in taking property from the owners without notice to the opposing parties, but it was also said:
“In this instance the appointment that was made would not have been justified even if notice had been given.” (p. 834.)
It must be remembered that no complete business or going concern was taken over by the receiver in this case, but the appointment involved only the maturing wheat crop and some fallow ground, leaving the defendants in full possession of everything else.
It is argued that the action had not been commenced and summons was not served until two days after the receiver was appointed, and that the application had not been filed when the appointment was made; also, that the judge had no power at his chambers outside of the county to make the order; that a receivership is only an ancillary matter at most, and that in an ejectment case like this the defendant’s right to a trial by jury cannot be taken away by an order of this sort. It is said that the receiver was appointed to take possession of the farm, or in other words, to take from the defendants the possession of the premises, which was virtually an ejectment. Still further, that the bond was insufficient under section 7171 of the General Statutes of 1915; and finally, that Obley was not such a disinterested person as required by section 267 of the civil code.
Section 107 of the civil code provides, among other things, that the judge at his chambers may hear and determine all demurrers and motions and other questions arising on the pleadings, after reasonable notice, which shall not be less than three days. (Gen. Stat. 1915, § 6999.) We think counsel are correct, that this gave the judge no authority to appoint a receiver. We are equally sure, however, that he did not need to look to this section for authority. Section 266 of the civil code provides for the appointment of a receiver in five different cases, and—
“In all other cases where receivers have heretofore been appointed by the usages of the courts of equity.” (Gen. Stat. 1915, § 7164.)
What the application amounted to was, that pending the plaintiff’s action for ejectment from the land a receiver be put in charge of the growing wheat crop so that the plaintiff would not lose his landlord’s share, and to put to use the untilled portions of the land so that it would not go to waste. No attempt was made to interfere with the defendant’s possession of the premises further than this, or to anticipate the result of the ejectment action.
The petition had been filed when the application for the appointment was made. The bond was given and the summons issued on the same day, and on the 9th the order and the summons were served on the defendants, who thereafter appeared generally and moved to set aside the order of appointment. This gave the court which acted thereon in term time full jurisdiction.
While a notice and opportunity to be heard should have been granted the defendants, the order of appointment was not void for lack thereof, which lack could have been and was availed of on motion to discharge, which motion seems to have been unsupported by substantial evidence.
Section 272ct of the civil code requires that upon appointing a receiver the applicant may be required to give an undertaking with sufficient sureties in an amount to be fixed by the court or judge for the payment to the defendant of all damages he may sustain by reason of the appointment should the order be made wrongfully or without sufficient cause. (Gen. Stat. 1915, § 7171.) This precise kind of a bond was not required, but one much more favorable to the defendants was required and given, and the failure to exercise the power given by this section of the code was not sufficient ground for holding the appointment void or for setting it aside.
Section 267 of the civil code provides that no person interested in an action shall be appointed as receiver therein. (Gen. Stat. 1915, § 7165.) This section was thus referred to in Reneau v. Lawless, 79 Kan. 553, 100 Pac. 479, at page 555—
“This provision requiring that a receiver shall be a disinterested agent of the court and parties only declares a general rule of law which existed when the statute was enacted. If when the appointment was made there had been an objection on account of interest it should and probably would have been sustained.”
There one of the parties to the action was appointed receiver. Here the receiver was an employee of the plaintiff, but does not appear to have been interested in the action.
“The general rule, undoubtedly, is that a receiver ought to be an indifferent person between the parties. He is an officer of the court, whose business it is to administer his trust impartially for the benefit of all concerned, and hence should have no special interest which might influence him in his conduct of the trust in matters where his interest and the interest of any party to the action may clash. . . . The owner of the property in which another has an interest for services in caring for it is not ineligible to appointment as receiver of such interest. Nor is there any legal obstacle or necessary impropriety in appointing a stockholder, a director, or even the president of a corporation, to the office of receiver, though in particular cases such an appointment would be obviously improvident.” (23 R. C. L. 41, § 41.)
High on Receivers, 4th ed., says that in a case in which the person appointed was the brother of one of the parties to the action and the son of one claiming to be a large creditor, and was admitted by the plaintiff to have taken a large part in the controversy, he was regarded as too much interested in the case to permit him to be as unbiased and impartial as a receiver should be, and he was therefore removed.
“But it is not regarded as an abuse of judicial discretion to appoint as receivers the attorneys of the respective parties to the cause, and the action of the court in making such appointment will not be interfered with upon appeal.” (§ 67.)
Under the general rule of noninterest and impartiality, Mr. Obley was hardly a proper person to select as receiver in this case; but his interest, so far as it appears from the record, was not such as to render the appointment void, nor was the refusal to discharge so prejudicially erroneous as to warrant a reversal.
From the record in other cases we are advised that litigation between the parties has assumed various forms and' phases, and, doubtless, time has wrought changes of conditions and relationship rendering quite unimportant some things that seemed of substantial importance a few months ago.
Finding nothing indicating that the defendants have been substantially injured by the orders complained of, such orders aré affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover damages for the wrongful taking from him of an automobile which had just been sold to him by the defendant. Judgment was rendered in favor of the plaintiff for $550, and the defendant appeals.
In Kansas City, Mo., the plaintiff purchased a used automobile of the defendant for the sum of $775, of which $100 was paid in cash, and the remainder was to be paid in installments, each of which was represented by a promissory note signed by the plaintiff, and all the notes were delivered to the defendant. The plaintiff executed to the defendant a chattel mortgage on the automobile, which chattel mortgage stipulated that:
“If said John Sansone, 415 Kansas Ave., K. C., Kansas, shall default in the payment of said indebtedness, or any part thereof, when the same shall become due and payable, or if he shall sell or attempt to sell, remove or attempt to remove said property out of Wyandotte county, Kansas, a-t any time before said indebtedness is fully paid and discharged, whether the same be due or hot, then it shall be lawful for the said Studebaker Corporation of America or anyone in their name, to take possession of said property, wherever it may be found and sell the same in any manner they shall think fit and out of the proceeds arising from said sale, pay off said indebtedness, or so much thereof as shall be unpaid, together with the costs and expenses of said sale, and the overplus, if any there be, shall be paid to the said John Sansone, 415 Kansas Ave., Kansas City, Kas.”
The plaintiff signed an order for the automobile in which he stated that:
“The title to and right of possession of said motor car shall remain in you until conveyed or until the full purchase price is paid in money.”
When the order for the automobile had been signed, the $100 had been paid, the notes had been executed, and the chattel mortgage had been given, the automobile was delivered to the plaintiff, and he and another person by the name of Terry drove it away. A Mrs. Anderson was also in the automobile at that time. They drove to the home of Mrs. Anderson, in Kansas City, Mo., where she and the plaintiff remained for about an hour. When they came out of the house, Terry drove the automobile to a street crossing to turn around. While at the crossing, Mr. Gutting and another person, employees of the defendant, drove up to Mr. Terry, and Mr. Gutting demanded possession of the automobile. Possession was there given. Mr. Gutting then drove to the home of Mrs. Anderson, told the plaintiff that the deal could not go through, and left with the plaintiff the $100 that had been paid, the notes and the other papers concerning the transaction. When the money and papers were handed to the plaintiff, he said to Mr. Gutting, “This is a hell of a way to do business.” The plaintiff retained the money, the notes, and the papers.
The plaintiff intended to use the automobile in the jitney business between the stockyards and Kansas City, Mo. Four days later he purchased another automobile. The testimony tended to prove that the profits derived from the use of that automobile ran from $10 to $25 a day. The plaintiff sued for $1,000 actual damages and $500 punitive damages. The jury returned a verdict for $1,500. The court directed that $950 of the verdict be remitted, which was done, and judgment was rendered for $550.
1. It is contended that, “The defendant had a right to take possession of the automobile under the provisions of its agreement with the plaintiff, provided it could do so without force or fraud.” This contention is based on the terms of the chattel mortgage and of the order for the automobile. It had just been sold and delivered to the plaintiff. There had been no breach of the conditions of the chattel mortgage. It did not provide that if the defendant felt itself insecure it might take possession of the automobile, and did not contain any other equivalent stipulation. The automobile had been sold in Kansas City, Mo., and had not reached Wyandotte county, Kansas, when the defendant retook it. Neither the chattel mortgage nor the provision in the order that, “The title to and right of possession of said motor car shall remain in you until conveyed or until the full purchase price is paid in money,” justified the defendant in taking the automobile from the plaintff immediately after the sale had been made.
2. The next contention presented is that the “plaintiff can not maintain an action, in any event, after acquiescing in the defendant’s taking the automobile and accepting and retaining the money and notes paid.” This contention is based on the argument that there was a rescission of the contract; that the plaintiff is estopped from demanding the value of the automobile, or of its use; and that the plaintiff, if he had any right of action, had waived that right. This argument is based on the fact that the $100 paid, and the notes and papers given in the purchase of the automobile, were returned to the plaintiff and were retained by him. Rescission, estoppel and waiver were questions of fact. They were submitted to the jury by the instructions, and the jury by its general verdict found that the defendant took the automobile from the plaintiff against the plaintiff’s will; therefore, this contention of the defendant fails.
3. The defendant insists that the plaintiff is not entitled to more than nominal damages for the reason that there was no. competent evidence to show actual damages. The plaintiff introduced evidence concerning the business in which he intended to use the automobile. That evidence tended to prove that the profits on such úse would have been $10 to $25 a day. Four days after the purchase of the automobile, the plaintiff procured another one. During those four days, he was deprived of the use of the automobile sold to him by the defendant. He lost the value of that use. At that time the use of an automobile for the transportation of persons for pay was an established business, and the profits derived therefrom could be ascertained with reasonable certainty. From the evidence to show such profits, the value of the use of the automobile could be ascertained. The plaintiff was entitled to recover the value of that use. (Yandle v. Kingsbury, 17 Kan. 195; Ladd v.Brewer, 17 Kan. 204; Bell v. Campbell, 17 Kan. 211; Palmer v. Meiners, 17 Kan. 478; Kennett v. Fickel, 41 Kan. 211, 21 Pac. 93; Werner v. Graley, 54 Kan. 383, 38 Pac. 482; Bank v. Showers, 65 Kan. 431, 70 Pac. 332; Reeves v. Bascue, 76 Kan. 333, 335, 91 Pac. 77; Cornwell v. Moss, 95 Kan. 229, 231, 147 Pac. 824; Id., 99 Kan. 522, 524, 162 Pac. 298.) These were actions in replevin. There can be no difference in the measure of damages where property is wrongfully taken in an action in replevin and where property is wrongfully taken without a writ of replevin. The value of the use of the property taken can be recovered in either kind of action.
Evidently, when the court directed a remission of $950, it reduced the actual damages found by the jury from $1,000 to $50. The sum of $50 as the value of the use of the automobile was supported by the evidence, which tended to show that the profits of the automobile during the four days in which the plaintiff was deprived of its use were from $10 to $25 a day. The loss to the plaintiff was actual damage, such as will sustain a judgment for punitive damages, if the acts of the defend ant were malicious or wanton. The maliciousness or wantonness of the defendant was submitted to the jury by the instructions, and the jury again found against the defendant. That finding is conclusive if there was evidence from which the jury could reasonably conclude that the defendant had acted either maliciously or wantonly. The defendant took the automobile away from the plaintiff almost immediately after selling it to him. That warranted the jury in finding that the defendant acted maliciously or wantonly.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The appeal was taken from an order offsetting judgments. The question is whether or not the amount in controversy is sufficient to give this court jurisdiction.
On February 12 Denny obtained judgment against Russell for the sum of $94, with interest at six per cent, and for costs. On February 21 Carver, attorney for Denny, perfected an attorney’s lien on the amount recovered to the extent of fifty per cent of it. On March 21 Carver took an assignment of the judgment for $94. Afterwards Russell procured judgment against Denny for the sum of $100, with interest at eight per cent, and for costs. Russell moved that the judgments be offset, and Carver intervened.
Carver’s notice of lien limited his lien to fifty per cent of the amount recovered on the cause of action set forth in Denny’s petition. The assignment to Carver specified the face of the judgment, $94. Interest on this sum to the time the judgments were offset would not bring the amount up to $100. So far as Carver is concerned, the amount in controversy is the amount he lost (Shannon v. Abrams, 98 Kan. 26, 31, 157 Pac. 449). Consequently, the court is without jurisdiction to hear Carver’s appeal (Civ. Code, § 566, Gen. Stat. 1915, § 7470). Denny has no interest in the face of the judgment, having assigned to Carver, and his judgment for costs against Russell amounts to only $34.
The appeal is dismissed.
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The opinion of;the court was delivered by
Porter, J.:
J. R. Maddock held a life insurance policy in a fraternal insurance association. The appellee, Betsey Maddock, was the beneficiary. Riggs, the appellant, held a policy in the same association, and for some years had acted as the agent of the association and its predecessors in collecting monthly dues from members. For several years Maddock had paid his dues each month to appellant, who promptly remitted them. In February, 1917, appellant ceased to be the authorized collector for the association, but Maddock continued, to pay his dues to him, and without objection he continued to remit them. The rules of the association provided that such dues had to reach it before the end of the month for which they were assessed. Mad-dock always paid his dues to the appellant a few days before or a few days after the first of the month for which they were due, so that appellant always had from three to five weeks in which to remit them. On August 29, 1917, Maddock paid his dues to appellant for September. Appellant, however, remitted them, together with his own dues, on October 2. This was two days after they were due. The company notified him that -both he and Maddock had been suspended. There was some evidence tending to show that appellant never communicated to Mad-dock the fact that he had been suspended, but led him to believe that his insurance was still in force; that an application blank for Maddock’s reinstatement was filled out and Mad-dock’s name signed by appellant; that upon receipt of the application for reinstatement of Maddock, the company notified appellant that Maddock would have to take a physical examination; and that appellant never notified Maddock of the fact that he had been suspended and that his policy had lapsed. In ignorance of the facts, Maddock continued until his death, in February, 1918, to pay his dues each month to the appellant, who deposited them in a trust account at the bank. The beneficiary brought this action against Riggs to recover the amount that would have been due on the policy if the premiums had been properly remitted. Two of Maddock’s sons testified that appellant told them he had not notified their father of the lapsing of the policy because he “didn’t have the heart” to tell him. All the correspondence with the company was through appellant. The negligence charged in the petition was his failure to properly remit the premiums paid to him by Maddock, and his wrongful concealment of the fact that the policy had lapsed, thus preventing Maddock from taking the necessary-steps to be reinstated. The judgment appealed from was a general one in favor of the plaintiff for the value of the policy.
The appellant’s contention is that the petition did not state and the facts did not prove a cause of action; that his only duty was to Maddock, and not to the beneficiary. The appellee relies upon the doctrine that when two parties make an agree ment for the benefit of a third, the latter can maintain an action directly thereon, although not a party tó the agreement. In Life Insurance Society v. Welck, as Sup’t, &c., 26 Kan. 632, it was said:
“Now whatever may be the rule in other states, it is well settled in this state that third parties not privy to a contract, nor privy to the consideration thereof, may sue upon the contract to enforce any stipulations made for their especial benefit and interest. (Anthony v. Herman, 14 Kan. 494; Floyd v. Ort, 20 Kan. 162, 164, and cases there cited.)” (p. 641.)
(See, also, Norman v. Rullman, 93 Kan. 791, 145 Pac. 818; Manufacturing Co. v. Deposit Co., 100 Kan. 28, 163 Pac. 1076.)
A leading case upon the doctrine that when two parties make an agreement for the benefit of a third, the latter can maintain an action directly thereon, although not a party to the agreement, is Lawrence v. Fox, 20 N. Y. 268. In a separate opinion, Johnson, C. J., and Denio, J., held that—
“Such promise is to be deemed made to the plaintiff, if adopted by him, though he was not a party nor cognizant of it when made.” (Syl. ¶ 2.)
The opinion approved the following statement from Brewer v. Dyer, 7 Cush. (Mass.) 337:
“Upon the principle of law long recognized and clearly established, . . . that when one person, for a valuable consideration, engages with another, by a simple contract, to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of such engagement. ... It does not rest upon the ground of any actual or supposed relationship between the parties as some of the earlier cases would seem to indicate, . . . but upon the broader and more satisfactory basis, that the law, operating on the act of the parties, creates the duty, establishes a privity, and implies the promise and obligation on which the action is founded.” (p. 340.)
(Lawrence v. Fox and Brewer v. Dyer, supra, were cited in the opinion in Anthony v. Herman, 14 Kan. 494.)
When the appellant accepted the premiums and undertook to remit them, he knew there was some beneficiary named in the policy, and also knew that it was not Maddoek, the assured. It might have been Maddock’s estate or some member of his family. In every insurance policy there are three parties — the assured, the beneficiary, and the insurer. The insurance was not so much for the benefit of the assured as it was for the person designated in the policy as the beneficiary; and the payments of the premium were primarily for her benefit.
The appellant seems to admit in his brief that the agent is liable to third parties for misfeasance in performance of duties, but he contends that he was guilty of nonfeasance only. The question turns upon the distinction between misfeasance and nonfeasance of an agent or bailee.
It is a principle of bailments that both custody and service of some sort are involved in each bailment. In deposits, it is said that custody is the chief purpose; in mandates it is incidental. In mandates, service is primary and custody the incident, and a mandate is defined as the bailment of something for some service upon it by the bailee gratuitously. The consideration in gratuitious bailments is the detriment to the promisee. The promisor by his undertaking prevents the promisee from securing the'desired benefit at the hands of another. Until the moment the promisor has entered upon the undertaking the promisee is still at liberty to secure another to do the service. Accordingly, it has been said that a gratuitous bailee cannot be held liable for any injury arising from nonfeasance, that is, from his entire failure to perform, but may become liable for malfeasance or misfeasance by his defectivé performance. It is clear that if the appellant had declined to undertake the acceptance and remittance of the premiums, that would have been nonfeasance, and he would not be liable for any injury arising therefrom. But it is apparent that by a series of the same kind of transactions, as well as by the acceptance from Maddock of the particular dues which he neglected to remit, he actually entered upon and undertook the performance of the mandate, and the action is to recover for his misfeasance.
A case in point, cited by appellee, is Osborne v. Morgan, 130 Mass. 102, which not only recognizes the .distinction between misfeasance and nonfeasance, but supports the doctrine that the third party, who suffers injury for misfeasance, may maintain his action to recover the damages. It is said in the opinion:
“It is often said in the books that an agent is responsible to third persons for misfeasance only, and not for nonfeasance. And it is doubtless true that if an agent never does anything towards carrying out his contract with his principal, but wholly omits and neglects to do so, the principal is the only person who can maintain any action against him for the nonfeasance.” (p. 103.)
“Nonfeasance does not extend to the omission or failure to do some act, whereby a third person is injured after he has once entered upon the performance of his contractual obligations. For example, if an agent undertakes to perform certain acts for another and he refuses or fails to enter upon such performance, it is nonfeasance; but if he once begins the performance of such acts, and, in doing so, fails or omits to do certain acts which he should have done whereby a third person is injured, it is not a nonfeasance but a misfeasance.” (2 Clark and Skyles, Law of Agency, § 596; Orcutt v Century Bldg. Co., 201 Mo. 424, 449.)
It is well settled that the ordinary rules governing gratuitous bailees “are equally applicable to a mandatary or gratuitous bailee who has actually entered upon the execution of some work or service that he has undertaken to perform respecting the subject matter of the bailment.” (6 C. J., Bailments, § 56.)
From the earliest cases on the subject, the general rule has been that a gratuitous bailee is liable only for gross negligence, and appellant contends that his failure to send' in the premiums was not gross negligence because he exercised exactly the same diligence and care with respect to Maddock’s assessments that he did with his own. While many respectable authorities may be found which regard such a showing as the true test in determining whether there has been gross negligence, the better rule is that taking such care of the property or thing as of one’s own repels a presumption of gross negligence, but this may be overcome and liability fastened upon the bailee nevertheless by showing the failure to exercise the care that under all the circumstances was required of him, because, manifestly, one may take risks with his own property that he has no right to take with another’s, and because it is not a question of the care exercised by him as an individual, but as a class. The rule as to the degree of care required of the appellant in this case is thus stated in 6 C. J., Bailments, § 57
“The true measure of liability is that the bailee is bound to that degree of diligence which the manner and the nature of his employment make it reasonable to expect of him, and that anything less than this is culpable in him” [citing Briggs v. Taylor, 28 Vt. 180],
Many of the decisions laying down what constitutes gross negligence in a particular case state that a gratuitous bailee is bound to slight diligence only, and have stated that the measure is that degree of diligence which persons of less than common prudence, or indeed of any prudence at all, take of their own concerns. In reference to this statement of the measure of diligence, it is said in Ruling Case Law:
“The measure, abstractly considered, has no reference to the particular character of an individual, but looks to the conduct and character of a whole class of persons. Hence, a gratuitous bailee will not, under this interpretation, be permitted to absolve himself from all responsibility for the care of an article bailed merely by proving that he has been likewise grossly negligent with his own goods.” (3 R. C. L., Bailments, § 26.) (Italics ours.)
In the old case of Doorman v. Jenkins (1834), the plaintiff proved the delivery of the money to the defendant for the purpose of taking up a bill. The defendant was the proprietor of a coffeehouse and the account he gave of the loss was that he unfortunately placed the money in his cash box which was kept in the taproom, and that the cash box with the plaintiff’s money in it, and also a larger sum belonging to the defendant, was stolen from the taproom on a Sunday. Lord Chief Justice Denman told the jury that it did not follow from the defendant’s having lost his own money at the same time as the plaintiff’s, that he had taken such care of the plaintiff’s money as a reasonable man would ordinarily take of his own. The case is reported in 2 Ad. and Ellis, 256; 29 E. C. L. 80, where the action of the court, in leaving the question whether there had been gross negligence, to the jury, was approved. (See, also, Coggs v. Bernard, 1 Smith’s Leading Cases, 11th ed., 173, 199.)
In Gray et al. v. Merriam, 148 Ill. 179, which has been regarded as a leading case, the court, while recognizing the general rule in such cases, approved the doctrine that each case must be judged by its own complexion, and that in the main “gross negligence is a question of fact upon all the evidence for the jury; and that what constitutes slight diligence or gross negligence will depend in each case upon a variety of circumstances, such as the occupation, habits, skill, and general character of the bailee.” (p. 186.)
We quote further from the opinion of judge Magruder in that case, as follows:
“Story, after stating the rule that when the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, subsequently adds that, in every case, good faith requires a bailee, without reward, to take reasonable care of the deposit; ‘and what is reasonable care must materially depend upon the nature, value, and quality of the thing, the circumstances under which it is deposited, and sometimes upon the character and confidence and particular dealings of the parties.’ Story on Bailments, §§ 23, 62.” (p. 186.)
To the same effect, see 3 R. C. L., Bailments, § 27.
In Skelley v. Kahn, 17 Ill. 170, the general rule recognized by an abundance of authority is stated to be that—
“A mandatary or bailee, who undertakes, without reward, to take care of the pledge, or perform any duty or labor, is required to use in its performance such care as men of common sense and common prudence, however inattentive, ordinarily take of their own affairs, and they will be liable only for bad faith, or gross negligence, which is an omission of that degree of care.” (p. 171.)
In 4 A. L. R. 1196-1229 will be found a very comprehensive note upon the liability of gratuitous bailees, with a citation to many quite recent cases. Referring to the general rule that a gratuitous bailee is liable only for gross negligence, the author of the note states in his summary that the expression, gross negligence, “has received so varied a content of meaning that it has ceased to be a satisfactory formula of decision,” because it leaves out of consideration every circumstance other than the bare fact of bailment and diverts “attention from the inquiry on which it properly should be centered, namely, what is the undertaking of the bailee in the particular case, as implied from the concomitant circumstances and defined by the express understanding between the parties?” (p. 1228.) The author says:
“The first article of his implied undertaking is, in the ease of a depositary, that he will take the same care of the property intrusted to him as he might reasonably be expected to take of his own property of the same character; in the case of a mandatary, that he will exercise the same diligence that he might reasonably be expected to exercise in his own affairs.” (p. 1229.)
In this state it has been declared in a number of cases that, “The classification of negligence into three degrees is no longer recognized.” (Railway Co. v. Walters, 78 Kan. 39, syl. ¶ 2, 96 Pac. 346.) In Jones v. Railway Co., 98 Kan. 133, 136, 157 Pac. 399, it was said:
“In the absence of statutory standards of negligence, the courts of Kansas have generally ignored the classification of negligence into the degrees of slight, ordinary and gross, and have held that in each case the true measure is due care; that is, the care and diligence proportionate to the risk and which the peculiar circumstances of the case demand” [citing Railway Co. v. Walters, supra].
To the same effect, see Logan v. Electric Co., 99 Kan. 381, 388, 161 Pac. 659; Kennedy v. Railway Co., 104 Kan. 129, 134, 179 Pac. 314.
The modern theory, adopted by many courts, is, that there are no degrees of care or of negligence; that negligence is in all cases the same thing, namely, the absence of due care. “The tendency of modern judicial opinion is adverse to the distinction between gross and ordinary negligence.” (Bradley, J., in Railroad Company v. Lockwood, 84 U. S. [Wall.] 357, 382.)
In Raymond v. Railroad Co., 100 Me., 529, it was said in the opinion: “It seems to us therefore that the measure of duty, owed by persons in the discharge of their mutual relations, would be better expressed by the use of the term ‘negligence,’ if one prefers a negative definition, or ‘due,’ ‘reasonable,’ or ‘ordinary’ care, always having reference to the circumstances and conditions' with regard to which the terms are used.” (p. 535.)
In determining whether the defendant should be held responsible for the damages resulting from his failure to remit the premiums, in other words, whether he exercised due care in view of all the circumstances, it is apparent that the so-called distinction between slight, ordinary and gross negligence over which courts have quibbled for a hundred years can furnish no assistance. Of course, the law did not impose upon him the responsibility of an insurer, nor require of him the exercise of anything unreasonable. It is equally true, however, that it required him to exercise the same care that he might reasonably have been expected to employ with reference to the remittance of his own insurance premiums; and in this connection it can-. not be said that he could make a partial, halfway performance of his duty; he must either have remitted or failed altogether to remit the premiums within the time they could be accepted. He forgot all about the matter and failed to forward the money until after the time had expired. Failing in his duty to forward them in time, he failed to exercise any care whatever. He was required to do something, and did nothing; the net result was gross negligence. As said in Railway Co. v. Walters, supra, “The question always is, Has the care, diligence or skill demanded by the peculiar circumstances of the particular case been exercised ? If so, there is no negligence. If not, there is negligence.” (p. 41.) The language there used was with reference to negligence in a railway case, but the same principle applies to the present case.
The arbitrary rule adopted by some courts, that a gratuitous bailee may absolve himself from liability for loss occasioned by his misfeasance merely by proof that he has been likewise negligent with his own goods, is one to which we cannot assent. It leaves out of consideration the fact that he may have been in the particular instance guilty of gross negligence in the conduct of his own affairs. The question whether he has failed to exercise slight diligence in respect to the goods left with him by the appellant, in other words, has been guilty of gross negligence, is a question for the jury. Undoubtedly, the gratuitous bailee must exercise what many courts have termed (and not inaccurately) reasonable care, which means, in this class of bailments, the exercise of the same diligence he might reasonably be expected to exercise in his own affairs.
The appellant raised his contentions by a demurrer to the evidence and a request for an instructed verdict. No errors are pointed out in the instructions. It must be held that the appellee is entitled to maintain the action, although she was not a party to nor cognizant of the contract or arrangement between Maddock and the appellant; the law operates upon the acts of the original parties so as to establish a privity and to imply a promise and obligation on the part of the appellant in favor of the appellee. The general verdict, which includes a finding of gross negligence, is abundantly sustained by the evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
This direct criminal appeal comes to us after the
defendant, Rilly Ray Ward, entered a plea of guilty and was sentenced to the state reformatory for the offense of burglary in the third degree (K. S. A. 21-521) by the district court of Reno county.
In order to present the defendant’s assignments of error adequately, it is necessary to relate in detail the chronology of the rather involved events leading up to this appeal.
On April 16, 1965, Ward, while serving a sentence imposed by the Cherokee county district court, escaped from the state reforma tory and burglarized two rural dwellings. Following bis arrest, Ward was charged in a complaint and warrant with three counts of felony: Count I — breaking prison, in violation of K. S. A. 21-732; Counts II and III — burglary in the second degree, contrary to K. S. A. 21-516. On May 3, 1965, Ward personally appeared with his court-appointed counsel, Edwin R. Rrabets, in city court and waived preliminary hearing on Counts I and II. A hearing was held, however, on Count III, and thereafter Ward was bound over to the district court for trial on all three counts.
On May 18, at defendant’s request, a sanity commission was appointed by the district court. Hie findings of the commission that Ward was sane, able to comprehend his position and make his defense were approved by the district court. An information was filed on June 2 charging him with the same counts as set out in the original complaint. Ward, with his counsel, appeared before the district court for arraignment. On the state’s motion, Count III (one of the burglary charges) was dismissed, and Ward was arraigned on Counts I and II. He pleaded guilty to both counts, but the court refused to accept the pleas, and set the matter for jury trial.
. The matter again came before the district court on June 29, at which time Ward was arraigned, and again he pleaded guilty to the two counts of the information. His pleas were accepted, and he was sentenced to the state penitentiary. On the same date Mr. Victor Goering, present counsel, was appointed by the court to represent defendant at any future proceedings.
On July 2 the state filed a written motion to vacate and set aside die plea and sentence previously imposed on June 29 on Count I of .the information. The motion was heard and sustained. The state, without objection by the defendant, was granted leave to file an amended information as to Count I. Mr. Goering orally moved to vacate and set aside the plea and sentence on Count II of the original information. The state concurred in the motion and in turn asked leave to file an amended information relating to Count II. Mr. Goering stated there was no' objection. The defendant’s motion was acted on favorably, and the result was that the court permitted an amended information to be filed as to both counts. Consequently, defendant stood charged, by the amended information, with two felonies: escape from prison without being guilty of breaking (K. S. A. 21-734), and third-degree burglary (K. S. A. 21-521). He was duly arraigned on both charges and entered pleas of guilty. The court accepted the pleas and again sentenced the defendant to the penitentiary.
On October 1 Ward, his attorney and the county attorney appeared before the district court. Defendant moved the court for an order allowing him to withdraw his plea of guilty to Count I of the amended information and for an order vacating the sentence imposed on that count, for the reason that the original sentence to the reformatory had been vacated and set aside by the Cherokee county district court. The motion was sustained. Ward reaffirmed his plea of guilty to Count II of the amended information, and the court resentenced the defendant — this time to the reformatory instead of to the penitentiary.
Defendant raises two assignments of error, both relating to the judgment and sentence for the offense of burglary in the third degree’ (Count II), as charged in the amended information.
Ward first asserts that after he had already entered a plea of guilty to burglary in the second degree, the court erred in permitting the state to file an amended information charging burglary in the third degree. He contends .the factual basis for the new charge being essentially the same as that for the original charge, the filing of an amended information alleging an offense that could have been charged as a separate count originally placed him in double jeopardy. Ward supports his argument by relying on K. S. A. 62-1449, which provides a bar to subsequent prosecution where an accused is properly charged with an offense and, upon trial, evidence of other offenses, (1) which might have been included as other counts, or (2) on which the state might have elected to rely in the action then being tried, is admitted. The inappropriateness of the statute to the facts here is self-evident. The statute was intended to supplement the existing law upon the subject of jeopardy, and by its language applies only where there is a trial and evidence of other offenses is admitted. (See State v. Momb, 154 Kan. 435, 119 P. 2d 544.) Fascinating as the defendant’s argument may be in his effort to apply the statute, he apparently overlooks the significance of his failing to raise the jeopardy question at the proper time and also his subsequently pleading guilty.
As a general rule, jeopardy attaches in a criminal action where, upon a valid information before a court of competent jurisdiction, the defendant enters a plea of guilty which is accepted by the court. (Markiewicz v. Black, 138 Colo. 128, 330 P. 2d 539, 75 A. L. R. 2d 678; 22 C. J. S., Criminal Law § 248; and cases cited in the Anno. 75 A. L. R. 2d 683.) Double jeopardy, however, is an affirmative defense that a defendant waives by failing to raise it in a timely manner and proceeding to trial the second time (State v. Maxwell, 151 Kan. 951, 102 P. 2d 109, 128 A. L. R. 1315; State v. Ford, 117 Kan. 735, 232 Pac. 1023; State v. White, 71 Kan. 356, 80 Pac. 589); or by entering a plea of guilty (Lawton v. Hand, 186 Kan. 385, 350 P. 2d 28; Hightower v. Hand, 186 Kan. 377, 350 P. 2d 31; State v. Carte, 157 Kan. 673, 143 P. 2d 774, and 157 Kan. 139, 138 P. 2d 429).
The circumstances under which the defense of double jeopardy is waived received the attention of this court in the recent case of Cox v. State, 197 Kan. 395, 416 P. 2d 741, in which many of our prior decisions, as well as federal decisions, on the point were reviewed. There, we held that both the failure of the petitioner to raise affirmatively the defense of double jeopardy and his subsequent plea of guilty to a lesser included offense constituted a waiver thereof.
In the instant case Ward, on June 29, was before the court on the original information which was valid upon its face. The court had jurisdiction of both the offense and the defendant. When the court accepted Ward’s plea of guilty, Ward was thereby placed in jeopardy. In the proceedings on July 2 Ward’s previous plea and sentence were vacated at his insistence, and he offered no objection to the filing of the amended information. He entered a plea of guilty, and his plea was later reaffirmed at his appearance before the court on October 1. Under these circumstances, the defendant effectively waived the defense of double jeopardy by failing to raise it in a timely manner and by subsequently pleading guilty.
Ward next contends the court erred in not affording him a preliminary hearing prior to accepting his plea of guilty to third degree burglary as charged in the amended information. We note he makes no contention he was not afforded the opportunity of a preliminary hearing on the original charge of second degree burglary. (See Cunningham v. Hoffman, 179 Kan. 609, 296 P. 2d 1081.) We need not belabor the point raised. Any objection Ward may have had to the lack of a preliminary hearing comes too late when asserted for the first time on appeal.
It is a well-established rule of criminal procedure in this state that where there has, in fact, been no preliminary examination afforded the defendant, he is required to raise the question prior to arraign ment by filing a plea in abatement. (State v. McCarther, 196 Kan. 665, 414 P. 2d 59, and authorities cited therein.) In McCarther this court held:
“. . . where a defendant files no plea in abatement that he had no preliminary examination on one or more charges contained in the information, and thereafter is arraigned, pleads not guility, and goes to trial on the information, the subject of preliminary examination is no longer material . . . and objection by the defendant on appeal that he had no preliminary examination comes too late. . . .” (p. 671.)
Additionally, any claimed irregularities pertaining to a preliminary examination are deemed to be waived where the defendant enters a voluntary plea of guilty in the district court (e. g., Tate v. State, 196 Kan. 435, 411 P. 2d 661; Smith v. State, 196 Kan. 438, 411 P. 2d 663; Portis v. State, 195 Kan. 313, 403 P. 2d 959; Chance v. State, 195 Kan. 430, 407 P. 2d 236, cert. denied 382 U. S. 1019, 15 L. Ed. 2d 534, 86 S. Ct. 638), and likewise, his right to the examination itself is waived by his pleading guilty to the information (Plasters v. Hoffman, 180 Kan. 559, 305 P. 2d 858; Foster v. Hudspeth, 170 Kan. 338, 224 P. 2d 987, appeal dismissed 340 U. S. 940, 95 L. Ed. 678, 71 S. Ct. 503; Cooper v. Hudspeth, 166 Kan. 239, 119 P. 2d 803).
Ward also urges it was improper for the court to permit the amendment of the original information, for under the provisions of K. S. A. 62-808 an information cannot be amended in matters of substance after jeopardy attaches. As applied to the instant case, the contention is without merit for the reason defendant expressly consented to the filing of the amended information, and he cannot now be heard to complain. (State v. Allen, 163 Kan. 374, 183 P. 2d 458.)
For the reasons stated, we concluded the court did not err in any of the matters urged herein. The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
In this action, Billy E. Collins, the appellant herein, has sued three Wichita doctors for alleged malpractice. Three pretrial conferences were had as a result of which the trial court entered summary judgment against Collins and in favor of all three defendant doctors. Collins has appealed from that judgment. In this opinion we will refer to him as plaintiff, or Collins.
Before attempting a recital of the facts, we should point out that each of the defendants is charged with separate acts of negligence. There is no claim that the doctors acted in concert, nor is any question of agency involved in this case.
Highly summarized, the facts which we have gleaned from the pleadings, the admissions of the parties, the various depositions taken in preparation for trial and certain hospital records, appear to be as follows: About January 4, 1962, the plaintiff injured his left groin while at work. Shortly thereafter, his employer sent him to the'company doctor, the defendant, Bruce P. Meeker, who upon examination, found a hernia in the left inguinal area. Some three weeks later, Dr. Meeker performed surgery to repair the hernia.
The plaintiff continued to have discomfort and pain in the left groin and down into the scrotum and in May, 1962, he consulted a Dr. Binyon, who is not a party to this lawsuit. Dr. Binyon referred Mr. Collins to the defendant, George J. Mastio. After examining Collins, Dr. Mastio felt he should undergo a period of watching and waiting.
In late November, 1962, apparently at Dr. Binyon s suggestion, Collins consulted D. Cramer Reed, who is also a defendant in this action, and related to him his complaints of pain, nausea and difficulty in having marital relations. Dr. Reed performed a cystoscopic examination of the plaintiff, following which he advised Collins to have more frequent sexual intercourse.
In March, 1963, tire plaintiff returned to Dr. Mastio, again at Dr. Binyon s advice, and reiterated his complaints of pain at the site of the hernia repair and radiating down into the scrotum. On April 3, 1963, Mastio operated at the old incision site. Collins continued to have pain and Dr. Mastio rehospitalized him on August 2, 1963. Shortly thereafter (the exact date not being shown) Dr. Mastio discharged the plaintiff as his patient, telling him (according to the plaintiff) that he should go home and get help the best way he could; that he, Mastio, was sick of the whole deal and that Collins was sick in the head and no medical doctor could do him any good.
On August 6, 1963, still suffering pain, Collins consulted Dr. Curtis C. Drevets, who referred him to Dr. Jack W. Graves. Neither of these doctors is a party to this lawsuit. On August 28, Dr. Graves performed a third operation on the plaintiff in which he removed the left testicle.
Against this factual background, we proceed to tabulate the specific acts of negligence which have been charged against each of the three defendants, individually.
1. Dr. Meeker: (a) Failing to advise and inform the plaintiff of the risks inherent in the hernia operation he was about to perform.
(b) Rebuilding the left external inguinal ring so tightly that it interfered with the supply of blood to and from the left testicle and the flow of secretions therefrom.
2. Dr. Reed: (a) Prescribing more frequent intercourse when the external ring was so tight that it interfered with the flow of blood and secretions.
3. Dr. Mastio: (a) Failing to inform the plaintiff of risks inhering in the hernia operation he was about to perform.
(b) Rebuilding the left inguinal ring so tight so that it interfered with flow of blood to and from the left testicle and the flow of secretions therefrom.
(c) Incising the spermatic cord during his exploratory surgery.
(d) Failure to acquaint himself with previous hospital records pertaining to plaintiff.
(c) Discharging and abandoning plaintiff on August 3, 1964, and informing him there was nothing wrong except “he was sick in the head.”
At this point we take note of the plaintiff’s insistence that the trial court erred in rendering summary judgment at a pretrial conference without previous notice and without a motion for summary judgment having been filed. This identical issue was raised in the recent case of Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019, where it was determined adversely to the plaintiff’s contention. No good purpose would be served by repeating all that was said in the Green opinion. We believe it sufficient here, to reiterate that a trial court has inherent power to dispose summarily of litigation where no genuine issue exists as to any material fact and where, giving effect to every reasonable inference which can be drawn from the evidence, judgment must be for one party or the other, as a matter of law. Such authority may be exercised by a trial court even though no motion has been filed or prior notice given, provided neither party is placed at a disadvantage because thereof.
Although the trial court couched its order in terms of a dismissal, it seems clear that all parties to this action, as well as the court itself, considered the order to be in the nature of a summary judgment in favor of the defendants. Accordingly, the principles governing the rendition of summaiy judgments are applicable. (See K. S. A. 60-212 [b] [7].)
In passing, we may observe that while no formal motion had been filed prior to the conference of November 1,1965, at which the court announced that summary judgment would be entered, we believe it would prove difficult for plaintiff to establish that he had been prejudiced thereby. At a pretrial conference held September 7, the subject of summary judgment came up, so plaintiff may hardly claim surprise. However, of greater significance is the fact that the court, at the conclusion of the November conference, gave plaintiff twenty additional days to show cause why the action should not be dismissed. Nothing new is shown to have been presented by the plaintiff and we must assume he chose to stand on the record already made.
The substantial issue presented on appeal is whether the trial court was correct, as a matter of law, in rendering summary judgment in favor of the defendants. Before we can arrive at a decision on this point, we will be required to examine the charges made against each defendant separately. Eefore doing so, however, we believe it advisable to restate the general rule, long adhered to by this court in malpractice cases of tills character, that expert medical testimony is ordinarily required to establish negligence or lack of skill on the part of a physician or surgeon, in his medical diagnoses, his performance of surgical procedures and his care and treatment of patients. (Tefft v. Wilcox, 6 Kan. 46, 59; Sly v. Powell, 87 Kan. 142, 123 Pac. 881; Rainey v. Smith, 109 Kan. 692, 694, 201 Pac, 1106; Updegraff v. Gage-Hall Clinic, 125 Kan. 518, 264 Pac. 1078.) The significance of this rule will become manifest as we progress in our discussion.
We would also point out at this juncture that an exception to the general rule exists where the results of medical treatment are so patently bad as to be manifest to lay persons or as to come within the common knowledge and experience of mankind generally. (Yard v. Gibbons, 95 Kan. 802, 149 Pac. 442; Stockholm v. Hall, 145 Kan. 291, 294, 65 P. 2d 348; Riggs v. Gouldner, 150 Kan. 727, 728, 96 P. 2d 694.)
Mindful of the foregoing rule and its exception, we first direct our attention to the case charged against the defendant Reed. As to him, only one act of negligence is alleged, namely, that he advised increased sexual activity on the part of plaintiff. The record does not disclose with what alacrity Mr. Collins responded to this suggestion, or with what zeal he pursued it, but whatever may have been his response, the results obtained appear to have been negative.
It is well established that an inconclusive or unsatisfactory result obtained by a patient from following the advice given him by a medical practitioner, after a diagnosis has been made, is not necessarily evidence of negligence on the part of the doctor. In Riggs v. Gouldner, supra, we said:
“A physician or surgeon is not a guarantor of the correctness of his diagnosis or of the efficacy of the treatments prescribed (48 C. J. 1119, 1120), but he is required to exercise the degree of skill and learning ordinarily possessed and exercised under similar circumstances by the members of his profession in good standing and to use ordinary and reasonable care and diligence and his best judgment in the application of his skill to the case. (48 C. J. 1113.) Negligence cannot be presumed from the mere failure to obtain the best results. (Paulich v. Nipple, 104 Kan. 801, 180 Pac. 771.) . . .” (p.728.)
Dr. Reed, himself, performed no surgery and no claim has been advanced that he was in anywise negligent in conducting the cystoscopic examination of the plaintiff. Reed can be held hable, if at all, on the single theory that he was negligent in prescribing more frequent intercourse for Collins under the circumstances known to him.
The record contains no medical or scientific evidence to substantiate the theory that in prescribing increased sexual activity, Dr. Reed deviated from acceptable medical practice. Indeed, the plaintiff makes no pretense of producing expert medical evidence to sustain the charge leveled against Reed. At the second pretrial conference held in September, plaintiff's counsel flatly declared he did not intend to offer expert medical evidence to prove that Reed was negligent or that his advice constituted a departure from sound medical standards. So far as making a case against Reed is concerned, the plaintiff has relied on two factors; one that the inguinal ring was too constricted, the other, that Dr. Reed advised more frequent intercourse.
Although we lay no claim to expertise in the realm of matters sexual, or to knowledge of concerns testicular, we nonetheless hold the opinion that liability on the part of Reed cannot be established without the aid of expert medical testimony. In other words, we do not understand the treatment prescribed by Reed to be so mischievous or fraught with hazard as to come within the common knowledge or experience of mankind. For aught the record shows, and for aught we know, the type of treatment recommended by Dr. Reed may be quite the popular theory in contemporary medical circles.
Nor do we find anything in the record from which knowledge of a constricted inguinal ring may be imputed to Dr. Reed, even though the plaintiff had complained of swelling and pain. The examination conducted by Reed before making his diagnosis revealed no such stricture, and it is conceded he was not negligent in conducting that examination. We consider the trial court was correct in entering summary judgment in favor of Dr. Reed, and we hold that its judgment in such regard must be sustained.
The only two grounds of negligence urged against Dr. Meeker, who performed the first surgery on Mr. Collins, are likewise leveled against Dr. Mastio, who performed the exploratory operation a year or so later. In the interest of brevity, these two charges of negligence, since they are identical, will be considered against the two doctors together.
The first charge is that both doctors failed to inform the plaintiff of the risks inherent in the hernia operation which each one performed. In advancing this contention, the plaintiff takes the position that he is not required to offer medical testimony to establish what disclosures should have been made to him by the respective doctors. Instead, Collins relies on this court’s holding in Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093, reh. den. 187 Kan. 186, 354 P. 2d 670.
In that case, the plaintiff brought suit to recover damages which she allegedly sustained as a result of radiation therapy through the medium of radioactive cobalt. One of the grounds of negligence charged against the defendant, Dr. Kline, was that he had failed to warn Mrs. Natanson that the course of treatment he proposed to administer involved grave consequences, including the risk of bodily injury or even death.
Recause this question had not previously been presented to this court, it was considered and discussed in some depth in two scholarly opinions written by Justice Schroeder. The first opinion, which followed the original presentation of the case, was later amplified by a second opinion denying a rehearing. Together, they contain a comprehensive treatment of tire subject. We shall not burden this opinion by repeating everything that was said in Natanson. Instead, we refer the perceptive reader, who is interested in the ramifications of this legal problem, to a serious study of the decisions filed in that case and the numerous citations and authorities set forth therein.
What we believe does need to be stated at this point is that in Natanson this court held, in practical effect, that in the absence of an emergency, a physician has an obligation to make a reasonable explanation and disclosure to his patient of the risks and dangers which inhere in a proposed course of treatment (and, we may add, in a proposed operation) to the end that whatever consent the patient gives to the prescribed treatment (or operation) may be an informed and intelligent consent; that where a physician, or surgeon, is silent and makes no disclosure whatever, he has failed in the duty owed to his patient and the patient is not required to produce expert medical testimony to show that the doctor s failure was contrary to accepted medical practice, but it devolves on the doctor to establish that his failure to make any disclosure, did, in fact, conform, under the confronting conditions, to accepted professional standards; and that where actual disclosures have been made and are ascertainable, then expert medical testimony is required to establish that the disclosures made did not accord to those which reasonable medical practitioners would divulge under the same or like circumstances.
In the later case of Williams v. Menehan, 191 Kan. 6, 379 P. 2d 292, the subject of informed consent again came before this court and we adhered, in essence, to the rules expressed in Natanson. In the Menehan opinion this court pointed out that the facts before it were unlike those appearing in the Natanson case, where the doctor had made no disclosures whatever. In Menehan we specifically said:
“. . . There is nothing in this action to detract from the rules of law laid down in the Natanson case.” (p. 11.)
At no time has this court ventured to say that a physician or surgeon is under obligation to disclose any and all results which might possibly follow a medical or surgical procedure. Nor would we now deny that there may well be circumstances under which it would be bad therapeutic practice to disclose the nature, the procedures and the possible harsh results of treatment. Even though a patient may be relieved of the burden of showing, by expert evidence, that his doctor’s silence deviated from acceptable medical practice, there is nothing in this rule which would preclude the doctor, himself, from showing that his silence did, in fact, comply with medical standards under the facts then facing him. We continue to believe that the principles enunciated in Natanson are valid.
Examination of the record reveals that Dr. Meeker disclosed no adverse effects whatever which might follow a hernia operation. In his deposition, he testified:
“Q. And you do not recall telling him [Collins] any adverse effects that he might have as a result of the hernia operation?
“A. No.
“Q. Did you at any time tell him that he may have trouble following the operation with his left testicle?
“A. No.
“Q. Did you tell him what the dangers were in connection with this operation?
“A. I did not.
We believe this testimony brings the case against Dr. Meeker, so fax- as the charge of failing to advise Mr. Collins is concerned, within the Natanson rule, and that it would not be incumbent on Collins to present expert evidence on this point. This conclusion will require reversal of the summary judgment entered against the defendant, Meeker.
However, we believe that a different situation exists as to the defendant, Mastio, in this regard. In his deposition, Dr. Mastio stated, in effect, that as he generally did with his patients, he told plaintiff the type of operation he would undergo, what he, Mastio, expected to do and the results plaintiff could expect and that he asked plaintiff if he had any questions about it. This evidence is not denied and, although Mastio does not detail the specific disclosures made and did not recall giving certain information, we think the situation is one where the precise disclosures were ascertainable and where the plaintiff would be required to show by expert testimony that the explanation given failed to comply with reasonable medical practices.
The second charge of negligence brought against both Meeker and Mastio is this: that each was negligent in rebuilding the external inguinal ring so tight that it interfered with the supply of blood to and from the left testicle and the flow of secretions therefrom. Plaintiffs counsel announced at the pretrial conference that he neither had, nor expected to secure, any medical testimony to support this charge of negligence against either doctor. Plaintiff has taken the position, throughout, that expert evidence is not required under the circumstances of this case.
We do not concur in the view taken by plaintiff on this point. It is true that Dr. Graves, who performed the third and last operation, deposed “that the spermatic cord was edematous (swollen) from the external ring due to a tight closure.” He also stated in his deposition that scar tissue will cause the ring to be tight, that some scar tissue is to be expected, and that some room is left for scar tissue to form.
Despite this testimony on the part of Dr. Graves, which we are not inclined to view as wholly unequivocal, we believe that expert evidence would be required to prove that either doctor was negligent in the matter of closing the inguinal ring. In other words, we believe negligence concerning that matter cannot be predicated, as a matter of general knowledge, on the fact which were before the court at the pretrial conference. As we have said before, the failure of a surgeon to achieve the best possible results from an operation does not, of itself, raise any presumption of negligence on his part (Hill v. Hays, 193 Kan. 453, 458, 395 P. 2d 298.)
So far as tightness of the inguinal ring is concerned, we simply are unable to say that such negligence and lack of professional skill has been shown as to negative the need for expert testimony. As examples of a situation in which it might be said the results of medical treatment were so unfavorable as to warrant an inference of negligence from lay testimony alone, when considered in the light of common knowledge and experience, we call attention to McMillen v. Foncannon, 127 Kan. 573, 274 Pac. 237, where a physician failed to set a broken arm and discharged his patient before the bone had set and while the ends overlapped, Bernsden v. Johnson, 174 Kan. 230, 255 P. 2d 1033, where a metal “airway” or tube was left in the throat of a patient, and Russell v. Newman, 116 Kan. 268, 226 Pac. 752 and Rule v. Cheeseman, Executrix, 181 Kan. 957, 317 P. 2d 472, where surgical sponges had not been removed following surgery.
No carelessness of the magnitude appearing in the above examples is shown here. From the information contained in the depositions of medical practitioners filed in this case, we are forced to conclude that a hernia operation, while it may be fairly common, is nonetheless an intricate and delicate procedure requiring considerable dexterity and an intimate knowledge of the groin area itself and the organs which are therein located. The operation, in our opinion, is far too complex and technical, and the possible results too numerous and unpredictable, to permit lay witnesses to express opinions as to the proficiency with which the operation has been performed or to permit a jury to speculate as to the adequacy and skillfullness of its performance solely in the light of their common knowledge and experience.
The plaintiff suggests that the doctrine of res ipsa loquitur is applicable under the facts of this case. We disagree. It is generally held that the doctrine is not available in actions brought to recover damages for malpractice. In 70 C. J. S., Physicians and Surgeons, § 62a, p. 992, we find the following statement of the rule:
“. . . The doctrine of res ipsa loquitur is not applicable where the common knowledge or experience of men is not extensive enough to permit it to be said that plaintiff’s condition would not have existed for negligence of the person charged . . .”
The application of res ipsa loquitur to an action of malpractice was the subject of serious discussion in Voss v. Bridwell, 188 Kan. 643, 364 P. 2d 955, where this court said:
“Established general rules in this jurisdiction which particularly militate against application of the doctrine of res ipsa loquitur in malpractice cases are: (1) That a physician or surgeon is presumed to have carefully and skillfully treated or operated on his patient, and there is no presumption of negligence to he indulged from the fact of injury or adverse result by reason of such treatment or operation; and (2) To establish liability in a medical malpractice case there must be proof by expert mectical testimony that there was a lack of due care or that approved procedure and methods were not followed.” (p. 659.)
It is only in those cases where common knowledge, observation and experience has shown that injury would not have resulted to a patient if reasonable medical or surgical care had been used, that negligence can be inferred from the injury, itself, and the doctrine of res ipsa loquitur can be applied.
While this court has twice applied the rule of res ipsa loquitur in malpractice actions, the circumstances of neither case were comparable to those revealed here. In Voss, an endotracheal tube was inserted into the esophagus of a patient undergoing surgery and was left there during the entire operation, as a result of which the patient was deprived of air and was rendered decerebrate. In Emrie v. Tice, 174 Kan, 739, 258 P. 2d 332, a patient suffered severe x-ray bums to his face, head and neck, during radium therapy for removal of a wait from his right ear. We believe neither of these cases is authority for applying the doctrine here and we decline to do so.
There is, however, expert testimony that Dr. Mastio did not follow approved medical procedures when he cut into the spermatic cord during his operation on the plaintiff. Dr. Mastio said in his deposition that it was necessary to dissect the ilioinguinal nerve from the spermatic cord so the cord could be opened for repair of the hernia inside.
Evidence that incision of the spermatic cord during a hernia repair constitutes a departure from usual standards of medical practice is found in the deposition given by Dr. Meeker, which reads in part:
“Q. In making a hernia repair do you incise the spermatic cord?
“A. No, sir.
“Q. If a doctor incises the spermatic cord in making a hernia repair, is he following the procedure done in this community?
“A. He isn’t following the procedure concerned in any community.
“Q. All right.
“A. If you mean cut the spermatic cord.
“Q. Doctor, there are a lot of terms I may not be familiar with and I understand ‘incise’ means ‘out’ and I used ‘cut’ awhile ago and you didn’t like the word, so ‘incise’ means ‘cut’ as I understand it.
“A. Yes, you certainly don’t incise the spermatic cord. You identify it.
“Q. But you do not cut it open?
“A. No.
“Q. Or stitch it back?
“A. No.
“Q. All right.
“A. Don’t have any excuse to. The only time you would do that would be in sterilization.”
The deposition of Dr. Meeker supplies sufficient substantial evidence of failure on the part of Dr. Mastio to employ the skills, or follow the recognized practices of his profession, to preclude summary judgment in his favor. Summary judgment may not be entered where a genuine issue of fact remains unresolved (Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964; Timmermeyer v. Brack, 196 Kan. 481, 412 P. 2d 984), even though the court may harbor the suspicion that one or the other party will be unable to prevail upon a trial (Green v. Kaesler-Allen Lumber Co., supra).
The plaintiff asserts two additional grounds in support of his contention that the trial court erred in entering summary judgment in favor of Dr. Mastio. We will refer to them briefly:
We understand plaintiff to contend that a surgeon’s failure, prior to performing surgery, to consult previous hospital records relating to his patient is per se a departure from established medical standards and, hence, constitutes negligence. No authority has been cited to support this proposition and our limited research has disclosed none.
As laymen, ourselves, wholly unschooled in the science of medicine, we are not disposed to say that examination of prior hospital records is a required or even a sound medical practice. We conclude that what may be the acceptable medical standard for examining past hospital records does not come within the realm of common knowledge and experience, but must be shown by experts in the field.
In connection with the plaintiff’s claim that Dr. Mastio abandoned him, we need only point out that a similar contention was before this court in Capps v. Valk, 189 Kan. 287, 369 P. 2d 238, where we said:
“It is the settled rule that one who engages a physician or surgeon (the terms ‘physician and ‘surgeon’ are here used interchangeably) to treat his case impliedly engages him to attend throughout tire illness or until his services are dispensed with. In other words, once initiated, the relationship of physician and patient continues until it is ended by the consent of the parties, revoked by the dismissal of the physician, or until his services are no longer needed. A physician has a right to withdraw from a case, but if he discontinues his services before the need for them is at an end, he is bound first to give due notice to the patient and afford the latter ample opportunity to secure other medical attendance of his own choice. If a physician abandons a case without giving his patient such notice and opportunity to procure the services of another physician, his conduct may subject him to the consequences and liability resulting from abandonment of the case . . .” (p. 290.)
Although the time which elapsed between the date on which the abandonment is said to have occurred and the date Collins consulted another doctor may have been quite short, we believe it only logical to assume that the legal principles espoused in Capps would nonetheless be applicable.
That part of the judgment of the court below entering summary judgment in favor of the defendant D. Cramer Reed is affirmed. The summary judgments entered in favor of the defendants Bruce P. Meeker and George J. Mastio are set aside and this action, as to them, is remanded with directions that the court proceed in accordance with the views expressed in this opinion.
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal by the state in a criminal action on questions reserved pursuant to K. S. A. 62-1703 (third). The defendant was acquitted of the charges leveled against him and, regardless of the disposition of the case, cannot be retried. (State v. Inzerillo, 191 Kan. 586, 383 P. 2d 546.)
The questions presented relate solely to the court’s instructions to the jury and can best be understood after a brief factual resumé.
The defendant, a long-time employee of a liquor store in Kansas City, Missouri, was convicted on May 11, 1964, in a justice of the peace court in Wyandotte county of two violations of the Kansas liquor control act: transportation and possession of alcoholic liquor not bearing Kansas tax stamps, contrary to K. S. A. ■ 41-104 and K. S. A. 41-407. On appeal to the district court a jury found the defendant not guilty on both charges. The defendant’s version of the events leading up to his arrest was that he was to deliver some liquor from his employer’s store located at 1801 West Forty-third to the employer’s other store located at 1606 West Seventy-fifth. Both stores are located in Missouri yet are in close proximity to the Missouri-Kansas line. In the process of going from one store to the other, defendant came across the state fine into Kansas to buy a sandwich at the Rosedale Barbecue. Shortly after leaving the barbecue, the defendant was stopped on Mission Road in Wyandotte county by an agent of the Alcoholic Beverage Control. In the station wagon operated by defendant were found several cases of alcoholic liquor and beer, none of which bore stamps evidencing payment of gallonage tax to the state of Kansas. Some of the liquor and beer containers were packaged in brown paper and had on them the name of a Kansas resident who lived approximately two blocks from the place of arrest.
During cross-examination of the state’s witnesses, and the direct examination of the defendant, defendant’s counsel was permitted, over the state’s objection, to pose questions and elicit answers relating to the defendant’s purpose and intent in transporting and possessing the liquor within the state of Kansas. The significance of this evidence becomes apparent when the court’s instructions .to the jury,are scrutinized.
We shall concern ourselves with those instructions which form the basis for the state’s first assignment of error. They are as follows:
“3. Section 41-104 of the Act provides that: ‘No person shall manufacture, bottle, blend, sell, barter, transport, deliver, furnish or possess any alcoholic liquor for beverage purposes’ unless it has the Kansas tax stamp affixed thereto.
“4. The words in that statute ‘for beverage purposes’ may require some definition. The word Tieverage’ is commonly defined as liquid for drinking.’ The word ‘purpose’ for all practical purposes is the same as ‘intention.’
“10. As to the charge made under Section 41-104, it is incumbent upon the State to prove to your satisfaction beyond a reasonable doubt:
“(2) that said liquor was so transported or possessed for beverage purposes.”
The state criticizes the court’s definition of the phrase “for beverage purposes” and claims the above instructions create the impression that the state was required to prove the defendant transported or possessed alcoholic liquor with the intention of drinking the same himself, or that it be drunk by someone else.
The criticism is completely justified. The instructions, in our opinion, not only were misleading, but also were inaccurate statements of what the legislature intended in its use of the entire phrase “alcoholic liquor for beverage purposes” in K. S. A. 41-104. By defining the words, “beverage purposes,” separately, the court removed them from the context of the statute, with the result that the defendant’s intention or purpose in transporting and possessing the alcoholic liquor became the all-important question for the jury’s determination.
It is a fundamental rule of statutory construction that penal statutes are to be strictly construed in favor of persons sought to be subjected to their operation. The rule merely means that ordinary words are to be given their ordinary meanings. A penal statute should not be read so as to add that which is not readily found therein, or to read out what, as a matter of ordinary language, is in it. (State, ex rel., v. American Savings Stamp Co., 194 Kan. 297, 398 P. 2d 1011, and cases cited therein.) Nor does the rule of strict construction permit or justify a disregard of manifest, legislative intent (State v. McGaugh, 180 Kan. 850, 308 P. 2d 85; State v. Brown, 173 Kan. 166, 244 P. 2d 1190), which must be determined from the words used in the enactment to express that intention.
In State v. Summer, 169 Kan. 516, 219 P. 2d 438, the court, in interpreting certain sections of the liquor control act, said:
“In order to ascertain the legislative intent courts are not permitted to consider only a certain isolated part or parts, of an act but are required to consider and construe together all parts thereof in pari materia.
“It is the duty of courts to reconcile various provisions of an act in order to make them consistent, harmonious and sensible if that can be done without doing violence to plain provisions therein contained.” (Syl. ¶¶ 1, 2.)
We note that the term “beverage purposes” is not included in the definitions set forth in K. S. A. 41-102; however, “alcoholic liquor” is said to include:
“. . . the four varieties of liquor as defined herein, namely, alcohol, spirits, wine and beer, and every liquid or solid, patented or not, containing alcohol, spirits, wine or beer, and capable of being consumed as a beverage by a human being, but shall not include any beer or cereal malt beverage containing not more than three and two-tenths percent (3.2%) of alcohol by weight.” (Emphasis added.)
By the provisions of K. S. A. 41-104, a person is prohibited from manufacturing, bottling, blending, selling, bartering, transporting, delivering, furnishing or possessing “any alcoholic liquor for beverage purposes,” except as specifically provided in the act.
K. S. A. 41-105 specifies those items to which the act is inapplicable, and states in part as follows:
“None of the provisions of this act shall apply: . . . (2) to flavoring extracts, syrups, or medicinal, mechanical, scientific, culinary or toilet preparations, or food products unfit for beverage purposes. . . .” (Emphasis added.)
We are cited to no authority that is particularly helpful in construing the phrase “for beverage purposes.” Our limited research, however, reveals a case (Woolworth v. State, 72 Okla. Cr. 125, 113 P. 2d 399) wherein the court in our sister state was called upon to determine whether or not bay rum was a liquid compound “capable of being used as a beverage” within the meaning of that state’s, prohibition statute. In the course of its opinion the court construed the phrase — “capable of being used as a beverage” — as meaning a liquid that
“. . . is reasonably capable of being drunk, either for the pleasure of drinking or its after effect, and does not apply to a liquid that it is possible to swallow, but not reasonably fit or palatable. . . .” (Syl. ¶[ 2.)
The Oklahoma court, in its decision, relied heavily on the language of Mr. Justice Brewer in our early case of Intoxicating-Liquor Cases, 25 Kan. 751, which dealt with the interpretation of our prohibitory law enacted in 1881 (L. 1881, ch. 128).
The similarity between the phrases “capable of being used as a beverage” and “capable of being consumed as a beverage” as found in K. S. A. 41-102(2), defining “alcoholic liquor,” is obvious. The words of the Oklahoma court are enlightening in that inherent in the definition therein stated is the recognition that a liquid, although containing alcohol, may or may not be capable of being used as a beverage. The need for such distinction was recognized by our lawmakers when they sought to delineate between “alcoholic liquor for beverage purposes” in K. S. A. 41-104 and those items, although containing alcohol, spirits, wine, or beer, that are designated as “unfit for beverage purposes” in K. S. A. 41-105(2).
The manifest purpose of the legislature, as expressed in our liquor control act, was to channelize the traffic in alcoholic liquor; to minimize the commonly attendant evils; and to facilitate the collection of revenue. The basic premise of the act, as stated in K. S. A. 41-104, is that of total prohibition of the manufacture, sale, barter, transportation, delivery or possession of alcoholic liquor as a beverage, unless otherwise specifically provided. (State v. Payne, 183 Kan. 396, 327 P. 2d 1071.)
In carrying out its comprehensive, regulatory scheme, the legislature was concerned with the character and nature of the product involved, and sought to regulate, among other activities, the transportation and possession of any product coming within the classification of “alcoholic liquor” as a beverage. Such classification includes the requirement that it be capable of being consumed as a beverage by a human being (K. S. A. 41-102(2)), as distinguished from those items not within the classification which are “unfit for beverage purposes” (K. S. A. 41-105(2)). “Alcoholic liquor for beverage purposes” (K. S. A. 41-104) necessarily relates to “alcoholic liquor” as defined in K. S. A. 41-102(2). This we conclude from the language of the statutes when construed together. What has been said, however, is intended neither to detract from nor add to those products which by express language have been placed in the respective categories.
We have long recognized in this state that alcoholic liquor is a commodity directly affecting public welfare and, therefore, occupies a special position with respect to the exercise of the state’s police power. (State v. Payne, supra, quoting from State v. Durein, 70
Kan. 13, 80 Pac. 987.) That it is within the power of the legislature to forbid the doing of an act and make its commission criminal, without regard to the intent or knowledge of the doer, is well established in our jurisprudence. (State, ex rel., v. Fairmount Foods Co., 196 Kan. 73, 410 P. 2d 308; State v. Merrifield, 180 Kan. 267, 303 P. 2d 155; State v. Beam, 175 Kan. 814, 267 P. 2d 509; State v. Brown, 173 Kan. 166, 244 P. 2d 1190; City of Hays v. Schueler, 107 Kan. 635, 193 Pac. 311, 11 A. L. R. 1433; State v. Rennaker, 75 Kan. 685, 90 Pac. 245; State v. Bush, 45 Kan. 138, 25 Pac. 614.)
The principle is well stated in 1 Wharton’s Criminal Law and Procedure, § 17, as follows:
“It is within the power of the legislature to declare an act criminal irrespective of the intent or knowledge of the doer of the act. In accordance with this power, the legislature in many instances has prohibited, under penalty, the performance of specific acts. The doing of the inhibited act constitutes the crime, and the moral turpitude or purity of the motive by which it was prompted and the knowledge or ignorance of its criminal character are immaterial circumstances on the question of guilt. The only fact to be determined in these cases is whether the defendant did the act. . . .” (p. 28.)
In State v. Avery, 111 Kan. 588, 207 Pac. 838, 23 A. L. R. 453, the defendant urged that the criterion of guilt in criminal law was wrongful intent. The court, in answering the contention, said:
“. . . the legislature may, for protection of the public interest, require persons to act at their peril, and may punish the doing of a forbidden act without regard to the knowledge, intention, motive, or moral turpitude of the doer. There is no constitutional objection to such legislation, the necessity for which the legislature is authorized to determine. . . .” (p. 590.)
In view of what has been said, the intention of a person who transports or possesses alcoholic liquor contrary to the provisions of the act is immaterial. The gravamen of such offenses is that the transportation or possession involves a product within the statutory definition of “alcoholic liquor.”
The state further assigns as error instruction No. 12, which was as follows:
“As to the charge made under Section 41-407, the Court is of the opinion that, considering die heading of the section, to-wit: ‘Evasion of liquor tax; acts forbidden; penalty’ the sections (1) and (2) must be considered together and that, for possession of unstamped liquor within the State of Kansas to be a crime, it must be with the intent to evade the liquor tax. Therefore, in order to secure a conviction under 41-407, it is incumbent upon the State to prove to your satisfaction beyond a reasonable doubt:
“(1) that defendant did have in his possession liquor on which the Kan sas tax had not been paid and which did not bear the requisite Kansas stamp; and
“(2) that the intent of defendant, or his employer, in having such liquor within the State of Kansas was to evade the Kansas tax on such liquor.” (Emphasis added.)
In giving instruction No. 5, the court set out the relevant sections of K. S. A. 41-407 in the following manner:
“ ‘41-407. Evasion of liquor tax; acts forbidden; penalty. It shall be unlawful for any person (1) to evade, or attempt to evade, the payment of tax or duty on any such alcoholic liquor, in any manner whatever. . . . (2) to have in his possession any cask or package of such liquor without having thereon each mark and stamp required therefor by law. . .
Reading K. S. A. 41-407 in its entirety, we find four separate sections specifically stating four, distinct, proscribed acts. No where in the entire statute is language found showing the prohibited act of any one section is dependent upon that of another section within the statute in order to constitute an offense. Each section is complete within itself about the act forbidden. Notwithstanding the trial court’s apparent conclusion to the contrary, the heading of a statute forms no part of the statute itself. (Becker v. Roothe, 184 Kan. 830, 339 P. 2d 292.) The alleged violation with which the lower court was concerned in instruction No. 12 was section (2) relating solely to possession, and it was improper for the court to instruct the jury that sections (1) and (2) were to be considered together.
We are further satisfied the offense prohibited by section (2) of K. S. A. 41-407 is that of possession of any alcoholic liquor without Kansas tax stamps affixed to the container thereof. (See State v. Wilson, 169 Kan. 659, 220 P. 2d 121.) There is no requirement that such possession be with the intent to evade the payment of tax thereon. Hence, the court’s instruction to the contrary was erroneous.
Much of what has been said in disposing of the first specification is equally applicable and controlling in our answer to the present point. More germane, however, is the rationale of those cases involving violations of our former worthless check statute (G. S. 1949, 21-554) in which it was frequently urged that “intent to defraud” was an element of the offense.
In State v. Avery, supra, the court held “intent to defraud” was not an element of the offense, and a similar conclusion was reached in State v. Morris, 190 Kan. 93, 372 P. 2d 282. The defendant in State v. Gillen, 151 Kan. 359, 99 P. 2d 832, urged that if “intent to defraud” was an element of the abatement statute (G. S. 1949, 21-556), then it must be an element of the worthless check statute. The court disposed of the contention by relying on State v. Avery r supra, saying that the question of intent being an element of the offense was a matter for the legislature. There the law remained until 1963 when the legislature saw fit to specifically make “intent to defraud” an element of the statute (K. S. A. 21-554). See State v. Shannon, 194 Kan. 258, 398 P. 2d 344, cert. denied 382 U. S. 881, 15 L. Ed. 2d 122, 86 S. Ct. 172, rehearing denied 382 U. S. 922, 15 L. Ed. 2d 238, 86 S. Ct. 298.
Thus, it is plain that the legislature can, if it so desires, require that intent be an essential element of an offense. In the absence of language manifesting such a requirement, the only fact to be determined is whether or not a person committed the act proscribed.
We have not overlooked the cases cited by amicus in its brief, but find them clearly inapplicable to the questions raised by the state. The major portion of the brief is devoted to a point not presented to the trial court and, therefore, not reviewable by this, court.
From what has been stated, we must conclude the state’s appeal is well founded, and the same is sustained.
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The opinion of the court was delivered by
Kaul, J.:
This is an action for the partition of an oil and gas lease and for an accounting between the owners of the lease. The ownership is not in dispute. A receiver was appointed and partition was had without objection. Two of the parties filed elections to take in opposition, the lease was sold and the receipts thereof in the amount of $7,700 are now held by the clerk of the district court.
This appeal was perfected by Harold Erbert, defendant below, from the judgment of the trial court in the accounting action. A procedural point was raised by plaintiffs (appellees) but not urged on oral argument. Therefore we shall proceed to the merits of the appeal.
The questions involve the construction of agreements for the sale of interests in and for the operation of the working interest in the lease.
On June 18, 1957, plaintiffs R. C. Roberts and Louise J. Roberts, husband and wife, being the owners in fee of the 160 acres of land leased, executed and delivered to defendant Robert A. Gordon an oil and gas lease for the primary term of five years, and for so long thereafter as either oil or gas was produced from the land by the lessee, his heirs or assigns. The lease is known to the plaintiffs and defendants, as well as to the public, as the “Roberts B. Lease.”
Defendant Erbert acquired the lease subject to a %2nd overriding royalty interest in Robert A. Gordon at a time, and in a manner undisclosed in the record.
On September 29, 1964, the trial court entered judgment in partition finding the ownership of interests in the lease to be as follows: Paul Gibbs lath; Marie Gibbs lath; Thomas B. Beggs lath; Myra H. Beggs and Thomas P. Beggs, husband and wife, lath; Lawrence Donelson and Florence Donelson, husband and wife, lath; Mabel S. Beggs lath (all plaintiffs below); and defendant Harold Erbert %ths, all subject to a hhnd overriding royalty interest owned by defendant Robert A. Gordon and a láth landowners’ royalty interest owned by R. C. Roberts and Louise J. Roberts, husband and wife.
Early in the spring of 1962 there was one drilled well (hereinafter referred to as well No. 1) on the leasehold which was cased but not on pump. At this time the lease was owned entirely by Erbert, subject to the overriding interest of Gordon. Erbert’s lease was subject to cancellation on June 18, 1962, unless a new well was drilled or unless oil was produced from well No. 1. Erbert and plaintiffs Paul Gibbs and Thomas Beggs negotiated an agreement for the sale of interests in the lease. It was agreed that Gibbs and Beggs were to each receive a %th interest if they helped Erbert sell interests in the lease. Gibbs and Beggs claimed they were to sell four Mi interests for $1,680 each, and Erbert was to sell a Mr interest for the same amount and was to retain a Mi interest for himself. Erbert claimed he was to keep a Mi interest and Gibbs and Beggs were to sell five Mi interests.
Gibbs and Beggs proceeded to sell four lath interests. One-eighth interests were sold to Marie Gibbs; Myra H. and Thomas P. Beggs, husband and wife; Lawrence and Florence Donelson, husband and wife; and Mabel S. Beggs (who will be referred to as purchasers hereafter). Defendant Erbert made assignments of a Mi working interest to each purchaser and received $1,680 from Marie Gibbs and $1,700 from each of the other three. Contracts were prepared by Erbert and submitted to the four purchasers.
The contracts, insofar as material for our consideration, were as follows:
“Whereas, the parties of the second part are desirous of purchasing a one-eighth (Ya) interest in said gas and oil lease.
“Now, therefore, for and in consideration of the sum of One Thousand, Six Hundred Eighty Dollars ($1,680.00), cash in hand paid, the party of the first part does assign to the parties of the second part an undivided one-eighth (%) interest in said gas and oil lease and it is agreed that the gas and oil well now on said lease will be put on pump.
“It is further agreed that the party of the first part will drill a second well on said gas and oil lease and upon completion of said second well, the parties of the second part will pay an additional sum of Eight Hundred Forty Dollars ($840.00) to the party of the first part.
“It is further agreed that the party of the first part will furnish all necessary equipment to market any oil which may be produced from said lease.”
The four purchasers and plaintiffs Thomas Beggs and Paul Gibbs each paid Erbert $840, or a total of $5,040, in addition to the $1,700 paid by three of the purchasers and $1,680 by the fourth, or a grand total of $11,820.00.
Erbert testified that after the assignments were made he, Tom (Beggs) and Paul (Gibbs) got together and decided to drill well No. 2 before putting No. 1 on pump.
The No. 2 well was drilled first to the “squirrel sand” and some showing of oil was found. Erbert testified it was not as good as wells on an adjoining lease and after discussing the situation with Paul (Gibbs) it was decided to drill on to the Mississippi Lime Formation. His testimony on this point is disputed by plaintiffs. Some oil was found in the lime, but it went to water. Erbert tried to complete the lime formation by perforating and acidizing. About 1400 feet of 4M inch casing was set, and the well was cemented. Thereafter the No. 3 well was drilled and put on pump. Erbert testified that he requested plaintiffs Paul Gibbs and Thomas Reggs to obtain contributions for the completion costs on No. 2 well and for the drilling and equipment costs on the No. 3 well.
At this juncture irreconcilable differences between the parties arose and this action was filed in the early summer of 1964 (the exact date is not shown in the record).
As we have indicated the cause of action for partition was not contested. The issues in the accounting action were framed by plaintiffs’ petition, defendant’s answer and counterclaim and plaintifFs’ reply thereto.
1. Plaintiffs contended that defendant agreed to fully equip and drill well No. 2, defendant denied this contention and claimed that under the written contract he was obligated only for the drilling of well No. 2.
2. Plaintiffs contended that $840 paid by each of them to defendant should be accounted for by defendant who claimed the $840 items were part of the consideration provided for in the contract, that he had made substantial compliance and no accounting by him was necessary.
3. Plaintiffs contended defendant breached his contract in not putting No. 1 well on pump; defendant claimed that by agreement he had furnished comparable equipment on No. 3 well and denied any breach on his part.
4. Plaintiffs claimed damages for the faulty and negligent completion of No. 2 well, which was denied by defendant.
5. Plaintiffs claimed that defendant, as a part of the agreement for the sale of the lease, made an oral agreement to sell a one-eighth interest to another person for $1,680 and that out of all the receipts defendant was to get $4,100 for the sale of his interest in the lease and that any amount received in excess of this sum was to be held by him in trust for the purpose of developing and equipping additional wells on the lease. The defendant denied any such agreement and claimed that he was not obligated under the written contract.
6. The defendant claimed that he was entitled to contribution from the plaintiffs for expenditures made in the equipping of No. 2 well and for his expenses in drilling and equipping No. 3 well, less the cost of the pump string which was furnished by defendant to compensate for his failure to put the No. 1 on pump. The defendant attached a statement of expenditures entitled Exhibit “A” to his counterclaim, such sums totaling, according to defendant, $7,635.42. In our examination of defendant’s statement of expenditures we have discerned what appears to be an error in addition on the part of defendant. In attempting to allocate expenditures listed by defendant between the No. 2 and No. 3 wells, we found $2,401.89 allocated to equipping the No. 2 well and $3,506.78 allocated to drilling and equipping the No. 3 well, or a total of $5,908.67, rather than the total sum of $7,635.42, as shown on defendant’s statement. Since no cross-appeal has been taken by plaintiffs and in view of the manner in which the issues were resolved by the trial court, and are now determined on appeal, the error is not material.
Plaintiffs prayed for a full and complete accounting by defendant while defendant asked for judgment on his counterclaim in the amount of $2,634.43 against plaintiffs Paul Gibbs and Thomas P. Beggs, each respectively, and for judgment in the amount of $954.43 against each of the other four purchasers of the assigned one-eighth interests.
The accounting action was tried in the lower court on September 28, 1965. Findings of the trial court filed on October 12, 1965, are summarized.
The trial court found that plaintiff Mabel Gibbs signed the contract and that plaintiffs Myra H. Beggs, Lawrence Donelson, Florence Donelson and Mabel S. Beggs are deemed to have signed the contract by reason of their pleadings and that there was no written contract between defendant and plaintiffs Paul Gibbs and Thomas Beggs. The evidence offered by plaintiffs does not operate to vary the terms of the written agreement but is admissible for the purpose of construing ambiguous language in the contract and also as proof of a supplemental agreement between the parties, not inconsistent with the written contract. Plaintiffs Paul Gibbs and Thomas Beggs are not obligated to pay defendant $1,680 each for the one-eighth interest assigned to each of them. The consideration for these assignments were services rendered by them in selling the four-eighths interest to other plaintiffs.
The trial court further found that in the light of all the evidence, including the amounts of money paid to defendant for drilling a second well, the conversations between the parties, their exchange of correspondence and defendant’s own analysis of costs, his contractual obligation was to drill and equip well No. 2, i. e., “complete” and put it into production.
The trial court further found no obligation on the part of any plaintifE to pay the defendant for any part of the drilling or equipping costs on well No. 3, because plaintiffs have discharged then-obligations in this regard from the considerations initially paid. While the expense incurred by Erbert in drilling and equipping the No. 2 well is less than the amount paid by the plaintiffs for that purpose, the difference is substantially offset by Erbert’s drilling cost ($1,900) on No. 3 well which he was not obligated to drill.
The trial court found for defendant on other issues raised. It also found the evidence insufficient to support any claims for damages by plaintiffs for breach of contract by him for his failure to place No. 1 well “on pump,” that defendant’s equipping and placing well No. 3 in production was the substantial equivalent to putting well No. 1 “on pump,” and that plaintiffs acquiesced in the drilling of well No. 3.
The court found that the drilling of well No. 2 into the limestone strata rather than stopping at the “squirrel sand” was acquiesced in by plaintiffs and found no evidence to support any claim of plaintiffs for special damages in connection with the drilling of No. 2 well. The court also found that plaintiffs failed to establish a relationship of joint enterprise and that the relationship under the agreements was that of plaintiff cotenants designating defendant cotenant as operator and developer on'the terms agreed upon and consequently there is no accounting indicated as among partners.
In summary the trial court stated in Finding No. 12 as follows:
“Mr. Erbert is indebted to each of the three plaintiffs who paid him $1700.00 instead of $1680.00, in the sum of $20.00 as over-payment by each.
“The result of these findings is that after the attorneys fees and expenses are allowed from the money in the hands of the cleric from the sale of the property the balance will be distributed to the parties in proportion to their respective interests without diminution or addition, except for the $20.00 which Erbert is obliged to pay each of three plaintiffs in accordance with paragraph 12 above.”
The defendant filed a motion to modify and set aside the findings adverse to him and moved for judgment in accordance with such modification. The motion was overruled and defendant perfected this appeal.
Appellant Erbert contends the trial court erred in holding the written contract to be ambiguous and in finding that the evidence introduced by appellees did not operate to vary the terms of the written contract. He further contends that other findings of the court were contrary to the evidence introduced.
The theory of appellant, as we have been able to discern from the rather confusing record, appears to be that even though appellees Gibbs and Beggs did not sign the written contract, nevertheless it fully stated the relationship between them and appellant and they should be bound by the terms thereof. The trial court found adversely to appellant on this point. In finding No. 2 the trial court announced that there was no written contract between appellant and appellees Gibbs and Beggs and that the relationship between them was established by oral agreement. We believe the trial court’s finding in this regard was correct. The evidence clearly discloses that no written contracts were signed by appellees Gibbs and Beggs. Further, Erbert admitted that Gibbs and Beggs were to each get a Isth interest for their services in selling interests in the lease, the only dispute being as to whether they were to sell %ths or fths. The testimony of both appellant and appellees was that it was orally agreed, shortly after the written assignments were made, not to put the No. 1 well on pump, as called for in the contract, but to proceed with the drilling of No. 2 well. We also note that much of the controversy between the parties stems from drilling and equipping the No. 3 well which was not mentioned or referred to in the written contract.
Since the evidence gleaned from the testimony of the appellees Gibbs and Beggs and also from the testimony of appellant supports the trial court’s finding of an oral agreement between them and as to the terms thereof, such findings cannot be disturbed on appellate review. It has long been a firmly established rule of appellate practice in this jurisdiction that findings by the trier of facts, supported by competent evidence, will not be disturbed on appeal. Some of our more recent cases in which the rule was applied are Callan v. Biermann, 194 Kan. 219, 398 P. 2d 355; Hendrixon v. Schemahorn, 193 Kan. 640, 396 P. 2d 352; and Cain v. Grosshans & Petersen, Inc., 192 Kan. 474, 389 P. 2d 839.
We shall next consider the written contracts which were found by the trial court to bind the four purchasers and the appellant. The trial court found some of the language used to be ambiguous and received extrinsic evidence by way of parol testimony to clarify the ambiguity. The appellant claims such evidence operated to vary the terms of the written contract.
We are mindful of the well-established doctrine that to interpret a written contract, free from ambiguity, is a judicial function not requiring oral testimony. (Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P. 2d 139; Weiner v. Wilshire Oil Co., 192 Kan. 490, 389 P. 2d 803, and cases cited therein.) The scope of the application of the doctrine and the tests to be applied in determining whether ambiguity exists in a written contract are thoroughly considered and discussed in Weiner v. Wilshire Oil Co., supra, and need not be repeated in detail.
In the instant case the pleadings and claims of the parties presented opposing views as to the meaning of the words “drilling” and “upon completion,” as used in the contract. Appellant claims that his obligation as to the No. 2 well under the terms of the particular provision, now under consideration, was only to “drill” a well. On the other hand, the appellees claim that the addition of the words “upon completion” together with the wording of the last paragraph of the contract which provided that Erbert was to “furnish all necessary equipment to market any oil which may be produced from said lease,” obligated him to drill the well, equip it and put it in production.
The trial court found, and we believe correctly so, that the uncertainty of the terms in the context used amounted to an ambiguity, subject to two possible interpretations. Extrinsic evidence then became proper as an aid in clarifying the intent and purpose of the uncertain language of the contract but not for the purpose of varying or nullifying its clear and positive provisions. (Custom Built Homes Co. v. State Comm. of Rev. and Taxation, 184 Kan. 31, 334 P. 2d 808, and Weiner v. Wilshire Oil Co., supra.)
After hearing the evidence the trial court resolved the uncertainty by finding the contractual obligation of Erbert was to both drill and equip well No. 2. The Rial court announced that it based such finding on all the evidence, including the amount of money paid to Erbert ($840) for each Mi interest, the conversations between the parties, then- exchange of correspondence and Erbert’s own analysis of costs. We find ample evidence in the record to support the trial court’s finding in this regard. In Weiner we quoted with approval the rule as stated in Shelly Oil Co. v. Cities Service Oil Co., 160 Kan. 226, 160 P. 2d 246, in which a contract for the sale of an oil and gas royalty was under consideration:
“. . . The general rule is that these instruments are to be interpreted from their 'four corners/ that is to say, that all the language used anywhere in the instrument should be taken into consideration and construed in harmony with other portions of the instrument. . . (p. 231.)
In our view, therefore, it was proper for the court, in attempting to interpret the obligation imposed by the use of the words “drilling” and “upon completion,” to consider the language of the last paragraph which imposed upon Erbert the obligation to furnish all necessary equipment to market any oil which may be produced from said lease.
In the instant case it could be said that by considering the “four corners” of the instrument in question the obligation imposed upon the parties could have been determined without resort to extrinsic evidence and the same result obtained as was reached here by the court after considering parol testimony.
The meaning and effect of the words “drilling” and “completion,” as used in an oil and gas lease, was considered and determined by this court in the case of Betterment Co. v. Blaes, 75 Kan. 69, 88 Pac. 555, where, in discussing the meaning of those terms, we said:
“This argument ignores the distinction between completing a well and drilling a well. These phrases cannot be said, as a matter of law, to mean tlie same thing. . . .” (pp. 75,76.)
Applying this reasoning to the provision of the contract in the instant case we must find the obligation of appellant Erbert to have been twofold, i. e., (1) to drill well No. 2 and (2) to complete it by equipping and putting it into production. While we believe the contract in the instant case could have been interpreted on its face and tire same conclusion reached without resort to extrinsic evidence the issues raised by the accounting action here obviously required parol testimony to obtain a complete and equitable adjudication for the simple reason that much of the controversy here stemmed Rom admitted modifications of the contract and subsequent oral agreements between the parties both express and implied by acquiescence.
As has been stated, the drilling of No. 3 well was not mentioned or provided for in the written contract. The reasons for the drilling of the No. 3 well and the terms under which it was proceeded with are in dispute. It is admitted by appellees that no additional funds were paid to Erbert for the drilling of No. 3 well. They claim that he, Erbert, was to equip, i. e., put on pump, the No. 3 well in lieu of his failure to put the No. 1 well on pump and that he had sufficient funds on hand resulting from unexpended funds in connection with the No. 1 and No. 2 wells to more than offset the expense (about $1,900) of drilling the No. 3 well. Erbert, on the other hand, contended that he was only obligated to equip the No. 3 well in lieu of equipping No. 1 well and that he was to be reimbursed from appellees for the drilling expense.
In this connection the trial court found the expense incurred by Erbert in drilling and equipping the No. 2 well to be less than the amount paid by appellees for that purpose but that the difference was substantially offset by Erbert’s drilling costs ($1,900) of well No. 3, which he was not obligated to drill but in the drilling of which the appellees acquiesced.
Since the No. 3 well was not mentioned in the contract, oral testimony was necessary and permissible in determining the rights and obligations of parties in connection therewith. Where a written contract is incomplete or silent in some essential point incident thereto, parol evidence is admissible to aid in its construction, (Mayse v. Grieves, 130 Kan. 96, 285 Pac. 630) or to show the complete agreement of the parties of which the writing is only a part. (Ray v. Allen, 159 Kan. 167, 152 P. 2d 851.) See, also, Stapleton v. Hartman, 174 Kan. 468, 257 P. 2d 113.
It is also well settled that the terms of a written contract may be varied, modified, waived, annulled or wholly set aside by any subsequent executed contract whether such subsequent executed contract be in wilting or parol. (Bailey v. Norton, 178 Kan. 104, 108, 283 P. 2d 400; Hill v. Maxwell, 71 Kan. 72, 79 Pac. 1088; and Todd v. Allen, 18 Kan. [2nd Ed.] 543, 545.)
We have carefully reviewed the evidence offered by both the appellees and appellant as to the amount paid in by appellees, compared to the expenditures of appellant plus his compensation for the assignment of six Mi interests. Under the obligations imposed on the parties by the oral and written contracts, as found and construed, we find no error in the trial court’s findings in connection with the No. 3 well.
The trial court properly considered oral testimony and other extrinsic evidence in interpreting and completing the terms of the contract in this case and the findings are supported by the evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
ing instituted pursuant to K. S. A. 60-1507, wherein the trial court
Schroeder, J.:
This is an appeal by the petitioner in a proceed-The controlling question is whether the petitioner is entitled to maintain this action under the provisions of 60-1507, supra.
The petitioner was originally charged jointly with another on the 26th day of July, 1952, with grand larceny of an automobile alleged to have been committed on the 21st day of July, 1952. Preliminary hearing was waived and he was bound over for trial to the district court where an information was filed.
On the 5th day of September, 1952, the petitioner was brought before the district court of Labette County, Kansas, without an attorney and was informed of the nature of the charges against him, and that the penalty for the charge was confinement of not less than five years nor more than fifteen years in the state penitentiary. After being informed of his right to counsel, the petitioner signed a written waiver of appointment of counsel in open court. He was then arraigned and entered a plea of guilty.
Upon inquiry by the court the petitioner stated he had been in trouble before — “breaking and entering.” The state introduced evidence that the petitioner had been sentenced to the Southern State Prison at Jackson, Michigan, on the 1st day of February, 1945, for breaking and entering in the nighttime.
Ry reason of this prior felony conviction the petitioner was sentenced under G. S. 1949, 21-534 and 21-107a for a period of not less than ten and not exceeding thirty years to the state penitentiary at Lansing, Kansas, and committed.
On the 19th day of May, 1964, the petitioner filed his motion to vacate the judgment and sentence pursuant to 60-1507, supra. In his motion he alleged as grounds for relief, among other things, (1) that the trial court was without jurisdiction to impose such sentence; and (2) that the sentence was in excess of the maximum authorized by law.
The record of the criminal proceeding discloses that at no time did the trial court find, after the petitioner had waived his right to counsel, that the appointment of counsel would not be to the advantage of the accused.
Under these circumstances it has been held the record is insufficient to show that the trial court had jurisdiction to accept a plea of guilty and a judgment of conviction based upon such record is void. (Chance v. State, 198 Kan. 16, 422 P. 2d 868.)
Counsel for the respective parties conceded that the prior felony conviction in the state of Michigan, asserted at the trial in the criminal proceedings as the basis for invoking the habitual criminal act by the district court of Labette County, was vacated on the 4th day of March, 1964, by the Michigan Supreme Court on the ground that the petitioner, when arraigned before the Michigan court, was seventeen years of age and not represented by counsel.
The trial court in this 1507 proceeding, upon being advised that the prior Michigan felony conviction had been vacated, overruled the petitioner’s motion on the ground it had considered only one prior felony conviction, and it appeared from the record the petitioner at the time of sentencing had two prior felony convictions.
The record of the criminal proceeding in Labette County does not disclose that evidence of two prior felony convictions was introduced. Under these circumstances the trial court is without power to resentence the petitioner using another prior felony conviction as the basis for invoking the habitual criminal act.
This question was specifically before the court in Bridges v. State, 197 Kan. 704, 421 P. 2d 45, where the trial court attempted to re-sentence the petitioner after vacating an invalid sentence imposed under the habitual criminal act based upon two prior felony convictions in Reno County, Kansas. Upon resentencing the state introduced evidence of a previous felony conviction in the district court of Russell County, Kansas, and reintroduced one of the previous convictions in the district court of Reno County. On the basis of these two prior felony convictions the district court then resentenced the appellant as an habitual for a third felony conviction. On appeal it was held:
“In this jurisdiction a void sentence may be changed to a valid one and an erroneous or irregular sentence is considered the same as a void sentence for the purpose of correction by the substitution of a new and valid sentence. (Richardson v. Hand, 182 Kan. 326, 320 P. 2d 837.) However, the district court, in a proceeding to correct a void sentence which has been partially served, has no authority to receive additional evidence upon which to base a new sentence. When the defendant appears before the court for resentencing the authority of the trial court is limited to a consideration of the identical facts and conditions existing at the time of the imposition of the original sentence. . . .
“It necessarily results that the trial court erroneously received evidence of the previous conviction in the district court of Russell County when defendant appeared before it for correction of the sentence and the defendant was erroneously sentenced for a third felony conviction under the provisions of K. S. A. 21-I07a.” (p.706.)
In the Bridges opinion the court quoted from State v. Cox, 194 Kan. 120, 397 P. 2d 406, which held to like effect.
Since the appeal to the Supreme Court in the instant case by the petitioner, counsel for the respective parties have learned, and stipulate, that while the petitioner was serving his sentence at Lansing on the Labette County conviction, he was charged and pleaded guilty on the 15th day of November, 1954, to the crimes of murder in the first degree and attempting to escape from the penitentiary at Lansing, pursuant to which he was sentenced to confinement and hard labor for life on the murder charge, and to not more than five years on the charge of attempting to escape, the sentences to run consecutively. The petitioner is presently serving the life sentence.
Under these circumstances it has been held that a prisoner is not entitled to challenge the validity of a sentence by a motion filed pursuant to K. S. A. 60-1507, where, despite an adjudication finding the sentence void, he would still be confined under another sentence. (King v. State, 195 Kan. 736, 408 P. 2d 599; Whiteaker v. State, 196 Kan. 583, 413 P. 2d 122; Lee v. State, 197 Kan. 371, 416 P. 2d 285; Jackson v. State, 197 Kan. 627, 419 P. 2d 937; and Supreme Court Rule No. 121[c], 194 Kan. xxvxi.)
This point was fully discussed in King v. State, supra, and requires no further elaboration.
In view of what has heretofore been said in this opinion, we conclude this action was improvidently brought and should be dismissed. Accordingly, the judgment of the trial court denying the petitioner’s motion is affirmed and the case is remanded with directions to dismiss the action.
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from an order of a district court denying injunctive relief against the Board of Education of Unified School District No. 247, Crawford county, Kansas. Patrons of McCune Joint Rural High School No. 2, a disorganized high school district, brought the action to prevent the unified district board from closing the high school at McCune without an election or consent as provided by K. S. A. 72-6756.
Because of the urgency of the matters involved the hearing of the appeal was advanced at the request of all parties and an interim opinion was issued on March 8, 1967, reversing the order of the district court with instructions to grant the injunctive relief to the extent necessary to prevent closing of the high school at McCune. The interim opinion appears in Hand v. Board of Education, 198 Kan. 459, 426 P. 2d 124. We set forth here the rationale of the interim opinion.
The matter was decided below on a stipulation of facts. Unified School District No. 247 was organized under the Unified School District Act of 1963 (K. S. A. 72-6734, et seq.). The district was validated by subsequent act of the legislature. (K. S. A. 1965 Supp. 72-6764.) School districts at Cherokee, Weir City, Mineral, Chicopee and McCune were unified under one district organization. The plaintiffs are resident electors of the disorganized McCune Joint Rural High School No. 2, and are appellants herein. The defendants are the members who make up the Board of Education of Unified School District No. 247, Crawford county, Kansas. They are appellees herein.
During the 1966-1967 school year the unified board operated two high schools, one at Cherokee and one at McCune. The high school at Cherokee had an enrollment of 263 students with an instruction cost of $229.28 per pupil. The Cherokee high school offered 62/2 units of instruction and had a teacher-pupil ratio of one teacher for fourteen and a half students. The building at Cherokee was constructed in 1961 and has all new equipment.
The McCune high school had an enrollment of 98 students with an instruction cost of $550.00 per pupil. The McCune high school offered less than 27K units of instruction and had a teacher-pupil ratio of one teacher for nine students. The school buildings located at McCune had been used in common by the high school and a grade school. The classroom building was constructed in 1925 and other buildings were constructed by the two schools in 1957.
Prior to unification the grade school at McCune was operated by Grade School District No. 57 and the high school was operated by McCune Joint Rural High School No. 2. Each school had different territorial boundaries, separate budgets and separate school boards. The two schools have been operated at McCune for many years. These districts became disorganized and their functions were taken over by Unified School District No. 247. The unified board con tinued to operate the grade school and the high school at McCune during tire first year after unification. Recause of the pupil-teacher ratio at the McCune and Cherokee schools in 1966-67, the unified board did not receive state aid under the state finance law. This amounted to an estimated $39,000.00. If all high school students at McCune are transferred to the high school at Cherokee the district will receive an additional $39,000.00 in state aid.
The unified board passed a resolution requiring all high school students in the entire unified district to attend high school at Cherokee during the 1967-68 school year. If carried into effect this would terminate high school classes at McCune. The school buildings would be used for grade school classes and activities.
The appellants sought injunctive relief against the unified board to prevent closing the high school at McCune. They base their action upon a specific provision of the Unified School District Act of 1963, K. S. A. 72-6756 which reads:
“The board shall not close any attendance facility that was being operated at the time the unified district was organized if at least three-fourths (%) of the territory of the district which formerly owned such building is included in such unified district unless and until a majority of the resident electors within the attendance center of such attendance facility shall give their consent thereto. Such consent may be given in writing in the form of a petition, or the board may submit the question to a vote of such resident electors in the attendance center at a meeting called for that purpose, ten (10) days’ notice of which shall be given by publication in a newspaper having general circulation in such attendance center. If a majority of those voting on the question vote in favor thereof, the same shall constitute consent for the purpose of this section. For the purpose of this section the following terms shall have the following meanings: The term ‘attendance facility’ means a school building which has been property of a school district disorganized pursuant to this act, but which, at the time under consideration, is owned by the unified district. The term ‘attendance center’ means the area around an attendance facility consisting of the territory in such unified district of the disorganized district which formerly owned such attendance facility.”
Appellants contend the legislature gave them a right of self determination. Before their high school at McCune could be closed the unified board was required to obtain written consent of a majority of the resident electors within the territory of the disorganized McCune Joint Rural High School District No. 2. Or, the school might be closed after an election held in accordance with the statute. Appellants argue that without such consent or election the unified board must continue to operate the high school at McCune.
The unified board’s argument may be summarized as follows. The board has not closed any attendance facility. The grade school will be operated and it will make use of all the school buildings. The board is moving the students in the 9th, 10th, 11th and 12th grades to Cherokee where school facilities are better for these students. The legislature defined “attendance facility” in the act to mean a school building. The board will not close any building. The board is adjusting the classes so it can make a wiser use of public funds and give these students a wider range of high school instruction in compliance with the legislative declaration of purpose.
The legislative declaration is set forth in the act as K. S. A. 72-6734 and reads:
“The legislature hereby declares that this act is passed for the general improvement of the public schools in the state of Kansas; the equalization of the benefits and burdens of education throughout the various communities in the state; to expedite the organization of public school districts of the state so as to establish a thorough and uniform system of free public schools throughout the state whereby all areas of the state are included in school districts which maintain grades one (1) through twelve (12), and kindergarten where desired; and to have a wiser use of public funds expended for the support of the public school system of the state. To these ends this act shall be liberally construed.”
Appellee relies upon a primary rule for the construction of a statute as set forth in Alter v. Johnson, 127 Kan. 443, 273 Pac. 474, Syl. ¶ 1, which reads as follows:
“A primary rule for the construction of a statute is to find the legislative intent from its language, and where the language used is plain and unambiguous and also appropriate to the obvious purpose the court should follow the intent as expressed by the words used and is not warranted in looking beyond them in search of some other legislative purpose or of extending the meaning beyond the plain terms of the act.”
We have no quarrel with the law expressed therein. The unified board is prohibited from certain actions without first obtaining approval of a majority of the resident electors within the territory of the disorganized McCune district. The board shall not close any “attendance facility” that was being operated at the time the unified district was organized without consent of the electors. “Attendance facility” is defined as a school building which has been property of a school district disorganized. The meaning of the term seems clouded rather than cleared by the definition supplied in the act.
A unified board is given broad powers under the act to make rules and regulations for conduct of the various schools in their dis trict. They may divide the district into subdistricts for purposes of attendance. They have the title to, and care and keeping of all school buildings. They may open any or all of the buildings for community purposes and adopt rules for use of the same. School buildings not needed by the district may be sold by the board with certain restrictions. (See K. S. A. 72-6755.)
It appears inconsistent to say that the right to make use of any particular school building and to close such building was purposely restricted by the legislature, if closing an entire school is not also restricted. Certainly the resident electors of a disorganized district are more interested in and affected by closing their school than they are by discontinuing use of one building which may no longer be required to operate a high school.
To understand the intent of the legislature in requiring the unified board to obtain approval of the.resident electors of the disorganized district we must keep in mind the history and traditions surrounding the early schools in Kansas. The establishment, control and management of schools in the early years of statehood were placed in the hands of the parents and local taxpayers by the legislature. It was under such circumstances that the small country schoolhouse became the center of community life under the close supervision and control of parents, neighbors and friends. This tradition of local community administration became an accepted and deeply rooted right of self determination to be jealously guarded. Parental control and participation in the educational process was wisely delegated by the legislature to meet the needs of a scattered rural population under the circumstances then existing.
As our population grew rural conditions changed. Retter roads were built to make use of faster means of transportation. There was a shifting of population and wealth. Rapid technological change occurred and with it came a need for education in ever widening areas. It became apparent that we must make changes to keep abreast of the times. Some school districts increased rapidly in taxable wealth while others remained relatively static. It appeared desirable therefore to make changes in our educational system to secure equal educational opportunities for the children in different districts. Changes seemed necessary to equalize the tax burdens brought on by population shifts.
The legislature became aware of this need for change in public education and the Unified School District Act of 1963 was passed with the legislative intent expressed in K. S. A. 72-6734. This new school law provided for local planning boards and public hearings to explain the new concept in establishment, control and management of schools. The law has created a large amount of confusion and dissatisfaction throughout the state, particularly in small and isolated communities where its operation was deemed contrary to local interests.
It must be assumed that the traditional element of local control of the schools was within the thinking of the legislature at the time the new act was passed. We believe this historical background sheds light on what the legislature intended by the provisions of K. S. A. 72-6756 requiring consent or affirmative vote by a majority of the resident electors of a disorganized district. So, the legislature provided that the unified board shall not close certain attendance facilities without consent or a favorable vote of the resident electors within the disorganized district. This particular section of the unification law appears to have been inserted by the legislature to permit a vestige of self determination, which might smooth the troubled waters resulting from disorganization of small school districts and the attendant threat of closing their schools.
The words “attendance facility” are not used elsewhere in the act. The definition supplied by the act (i. e. school building) is of some help in arriving at the correct meaning intended by the legislature. The restriction on closing is applied in case of an attendance facility that was being operated at the time the unified district was organized. A school is operated when a school building is available for students to attend school. Idiomatically speaking a school is referred to as being operated and a school building as being used. The term attendance facility combines two elements in its general meaning. The first refers to a place of attendance and the second a place more convenient to attend. When we consider in context a school building, a place of attendance and a place more convenient to attend it compels us to define “attendance facility” as any high school, junior high school, or elementary grade school being operated at the time the unified district was organized.
Under such definition a school building may be an attendance facility. Since McCune Joint Rural High School No. 2 did operate a high school at McCune when the unified district was organized the McCune high school may not be closed without complying with the provisions of the act relating to written consent or election by resident electors.
The unified board bases its argument upon the definition supplied in the statute. An attendance facility is a building. They argue the buildings at McCune are not closed if the board operates a grade school in these buildings. The difficulty in accepting such argument is apparent. If the unified board is permitted to transport the 9th, 10th, 11th and 12th grades to Cherokee without consent or vote of the McCune resident electors, they would also have a right to discontinue the 7th and 8th grades by transporting the students elsewhere. The next step might be to transport all students elsewhere and use the buildings for other school purposes. If this were permitted it would render the restriction against closing ineffective.
Therefore the court has concluded the judgment denying injunctive relief was in error. Injunctive relief should be granted to prevent action by the unified board which would result in discontinuing the high school at McCune unless and until the board obtains written consent or an affirmative vote of a majority of the resident electors within the territory formerly comprising McCune Joint Rural High School District No. 2.
Judgment is reversed as provided in the interim opinion filed March 8, 1967.
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The opinion of the court was delivered by
Fatzer, J.:
The appellant, John G. Ware, has appealed from the order of the district court denying his application for relief under the provisions of K. S. A. 60-1507, without appointing counsel to represent him, or granting him a plenary hearing.
The appellant is hereafter referred to as the petitioner or defendant.
On May 16,1963, the defendant was tried by a jury on two counts of robbery in the first degree, as that offense is defined in G. S. 1949, 21-527 (now K. S. A. 21-527). On May 17, 1963, the jury returned its verdict finding him guilty of the offense as charged in count one of the information, and not guilty of the offense as charged in count two. At all stages of the criminal proceeding, the defendant was represented by personally retained counsel who was experienced in the trial of criminal cases.
On July 2, 1963, the defendant was sentenced to confinement in the Kansas State Penitentiary for a term of not less than ten years nor more than twenty-one years, in accordance with G. S. 1949, 21-530 (now K. S. A. 21-530). Prior thereto, and on June 17, 1963, the state served notice upon the defendant’s counsel of its intention to request sentencing under the Habitual Criminal Act. (G.S. 1949, 21-107a, now K.S.A. 21-107a.) On the date the defendant was sentenced, the county attorney produced an uncertified photostatic copy of an FBI “rap sheet,” purporting to show the defendant’s prior conviction of the crime of sexual intercourse with a child in Milwaukee, Wisconsin, but he did not introduce a certified copy of the record of that conviction. The court indicated it was not convinced the defendant had been previously convicted of felony and the state asked for permission to withdraw the notice of its intention to request sentencing under the Habitual Criminal Act. Counsel for the defendant stated he was considering filing an application for parole, but no application was filed. Following imposition of sentence, counsel filed a motion for a new trial, which was presented to the district court and overruled. No appeal was thereafter taken by the defendant from his conviction of first degree robbery.
The petitioner makes the uncorroborated statement he did not appeal from his conviction following the overruling of his motion for a new trial because the district court and his counsel failed to advise him of that right. In his motion for relief, he named no witness who might offer evidence in support of that allegation, and the district court concluded the claim was not the basis for collateral attack upon the judgment. The petitioner here argues the district court’s failure to advise him of his constitutional right to appeal denied him due process of law and that it abused its dis cretion in failing to grant an evidentiary hearing so that he might offer evidence of such failure. The contention is patently without merit.
The record is silent whether the district court advised the petitioner he had the right to appeal to this court. Assuming, arguendo, the district court did not so advise him, it does not follow the petitioner was deprived of any constitutional right. In this jurisdiction, the right to appeal in a criminal case is a statutory right granted by the state through the legislature. Pertinent statutes with respect to the taking and perfecting of appeals in criminal cases in force at the time the defendant was sentenced read:
“An appeal to the supreme court may be taken by the defendant as a matter of right from any judgment against him . . .” (K. S.A. 62-1701); and
“If defendant does not seek to have execution of his sentence stayed, or release from custody on bond pending his appeal, he may appeal at any time within six months from the date of the sentence by serving notice of appeal on the county attorney of the county in which he was tried and filing the same with the clerk of the district court; and such clerk, within ten days . . . shall send a certified copy of such notice . . . and a certified copy of the journal entry of defendant’s conviction to the cleric of the supreme court. Defendant shall then prepare and present his appeal in accordance with the statutes and rules of court applicable thereto.” (K. S. A. 62-1724 [a].)
See, also, Prefatory Rule No. 1 (f ), 194 Kan. xn.
Our Constitution guarantees to one charged with crime, a prompt, fair trial by a jury (Bill of Rights, §§ 5,10,18); it does not guarantee to him an appeal to the supreme court. The right of appeal is not constitutional. (Constitution of Kansas, Art. 3, § 3.) It is not an inherent, natural, inalienable, absolute or vested right. In this state it is conferred by statute, and the defendant must take it on the terms provided by the statute. (Cochran v. Amrine, 155 Kan. 777, 130 P. 2d 605; In re Christensen, 166 Kan. 671, 203 P. 2d 258; State v. Phillips, 175 Kan. 50, 53, 259 P. 2d 185; State v. Hess, 178 Kan. 452, 458, Syl. ¶ 6, 289 P. 2d 759; State v. Sims, 184 Kan. 587, 588, 337 P. 2d 704; State v. Aeby, 191 Kan. 333, 381 P. 2d 356.) The right given is clearly for the defendant’s benefit and may be waived by his failure to file and serve the notice of appeal within six months from his conviction. (State v. Mooneyham, 192 Kan. 620, 390 P. 2d 215, cert. den. 377 U. S. 958, 12 L. Ed. 2d 502, 84 S. Ct. 1640, overruled on another ground in State v. McCarther, 197 Kan. 279, 416 P. 2d 290.)
Likewise, the right to appeal a state criminal conviction is not a fundamental right guaranteed by the Constitution of the United States or a requisite of due process of law guaranteed to any person by the Fourteenth Amendment. Such a right is a privilege, a matter of grace which the state can extend or withhold as it deems fit, or which may be granted on such terms and conditions as it sees fit. (Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891, 76 S. Ct. 585, 55 A. L. R. 2d 1055, rehearing denied 351 U. S. 958, 100 L. Ed. 1480, 76 S. Ct. 844; Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 73 S. Ct. 397, rehearing denied 345 U. S. 946, 97 L. Ed. 1370, 73 S. Ct. 827; Dist. of Columbia v. Clawans, 300 U. S. 617, 81 L. Ed. 843, 57 S. Ct. 660; Mooneyham v. State of Kansas, 339 F. 2d 209; Errington v. Hudspeth [10th Circuit], 110 F. 2d 384, 127 A. L. R. 1467, cert. den. 310 U. S. 638, 84 L. Ed. 1407, 60 S. Ct. 1087; McDonald v. Hudspeth [10th Circuit], 129 F. 2d 196, cert. den. 317 U. S. 665, 87 L. Ed. 535, 63 S. Ct. 75; McKane v. Durston, 153 U. S. 684, 38 L. Ed. 867, 14 S. Ct. 913.) See, also, 24 C. J. S., Criminal Law, § 1628, pp. 945-952; 16A C. J. S., Constitutional Law, § 594, pp. 688-691.
Since the right to appeal is not a right granted or guaranteed by either the Constitution of the state of Kansas or the Constitution of the United States, it logically follows that the failure of a district court to advise a defendant of his right to appeal could in no way deprive him of any fundamental constitutional right.
The petitioner was represented at all stages of the criminal trial by personally retained counsel, and it must be assumed counsel fully advised him of his rights, including the right to appeal. The record indicates that counsel ably represented the petitioner, and it was mainly through his representation that the Habitual Criminal Act was not invoked when he was sentenced. The petitioner’s uncorroborated statement that counsel did not advise him of his right to appeal would hardly seem to present a justiciable question requiring the district court to grant an evidentiary hearing. (K. S. A. 60-1507; Rule No. 121 [g],—Procedure Under 60-1507, 194 Kan. xxviii.) See, also, Huston v. State, 195 Kan. 140, 403 P. 2d 122; Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. den. 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581.
We have fully examined the record and find no error. The judgement is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
The appellant, Beldon Bowen, administrator c. t. a. of the insolvent estate of Marcelline M. Ward, deceased, has appealed from judgments in favor of the appellees, Norman P. Lewis and Margaret L. Kemper, a son and a daughter of the decedent, in the sum of $8,800 each, which was allowed as administrative expense in the administration of the decedent’s estate and classified as second class claims pursuant to K. S. A. 59-1301.
The appellees filed identical claims in the probate court in February and March, 1963 — over seven years after the administration of the decedent’s estate was commenced — and each sought recovery of an undivided one-half interest in a monthly rental of $200 per month for 88 months for the use of hotel furnishings owned by them and used to continue the operation of the Barons Hotel located at Concordia. The claims were transferred to the district court for trial (K. S. A. 59-2402 a and b), and tried to a jury. After all the evidence had been introduced, each party moved for a directed verdict. The district court overruled the motions, and later dis charged the jury. It then took the case under advisement and made findings of fact and conclusions of law, and entered judgment allowing the claims in full with interest.
The pertinent facts are summarized: For many years Marcelline M. Ward and her husband owned and operated the Barons Hotel in Concordia. Following the death of her husband, Mrs. Ward desired to retire from the active management of the hotel and go to Chicago and live with her daughter Margaret. On June 21, 1951, she designated her son, Norman, as her agent-manager, at a salary of $60 per week, and conveyed all the furniture, furnishings and personal property in the hotel to Norman and Margaret in equal shares by a deed of gift. When the gift was made, the property was appraised by three persons at $4,897.50. The gift constituted substantially all of the furnishings in the 100-room hotel and the property remained in the hotel as long as it continued in business. As the furnishings deteriorated and became unusable during the lifetime of Mrs. Ward they were replaced at her expense. After her death they were replaced at the expense of her estate. It should be noted that neither Norman nor Margaret made any claim against their mother for the use or rental value of the hotel furnishings during her lifetime.
Norman continued to operate the hotel as Mrs. Ward’s agent for approximately four years and until her death on August 10, 1955. In 1953, it became apparent that Mrs. Ward was involved in a controversy with the Internal Revenue Service because of her failure to discharge income tax obligations. The tax difficulty became acute, and tax liens were filed by the government and three suits were commenced in the United States Tax Court by Norman and his mother. This litigation was settled after Mrs. Ward’s death and resulted in the filing of a claim in the approximate amount of $93,000, with interest, against the decedent’s estate. Other facets of that litigation involving Norman are detailed in Bowen, Administrator v. Lewis, 198 Kan. 605, 426 P. 2d 238, this day decided.
Following Mrs. Ward’s death, her will was admitted to probate in Cloud County and Norman was named as executor to serve without bond. The will devised the hotel to Norman and Margaret in equal shares and devised other property to another son, Martin Lewis.
On August 20, 1955, Norman qualified as executor of his mother’s estate, and on the same day he petitioned the probate court for authority to continue the operation of the hotel pursuant to K. S. A. 59-1402. The pertinent part of the order granting the authority reads:
“It is, therefore, by the Court considered, ordered, adjudged and decreed that said executor, Norman P. Lewis, be, and he is hereby authorized to continue the hotel business owned by the decedent at the time of her death and known as the Baron’t (sic) House in Concordia, Kansas, for a period of six (6) months from the 10th day of August, 1955 [the date of the decedent’s death], unless disposition of such business be made pursuant to the order of tins Court prior to such time, and that said executor be and he is hereby authorized to do any and all things necessary and essential to the proper operation and conduct of such business, including the hiring of employees to assist in the operation of the hotel, the payment of all expenses, including wages, salaries, F. I. C. A. taxes, withholding taxes, incidental to such business.
“It is further by the Court considered, ordered, adjudged and decreed that said executor shall keep an accurate and separate account of all receipts and expenditures in connection with the said business and that report thereof be filed with the Court.
“It is further by the Court considered, ordered, adjudged and decreed that the said executor, Norman P. Lewis, be and he is hereby allowed a fee of $60.00 per week for his services in managing such business and he is hereby authorized to pay such amount to himself weekly and to credit himself therefor upon his account.”
The authority to continue the operation of the hotel was renewed by the probate court each six months until the hotel was sold in December, 1962 — a period of seven years and eight months. Normans salary of $60 per week was later raised to $120 per week by order of the probate court, and during the time he operated the hotel as manager he received the sum of $41,200 in salary. Financially, the hotel “broke even” during the period it was operated in the administration of the estate. Norman made efforts as executor to compromise the government’s income tax claim for $25,000, but his proposal was rejected and it became necessary to sell the hotel since the estate was insolvent.
It was the plan and intention of Norman and Margaret to buy the hotel and keep it in the family. In order to be in a position to bid at a sale of the hotel, Norman resigned as executor on October 1, 1962. In his final report, he made full accounting of expenditures and assets coming into his hands from the date of his last accounting to the probate court. When discharged as executor, he was allowed the sum of $3,500 in addition to partial fee allowances previously made, and was allowed the sum of $5,000 for his attorneys as costs of administration of the decedent’s estate.
On the same day, October 1, 1962, the appellant, Beldon Bowen, was appointed administrator with the will annexed of the estate of the decedent and was required to give bond in the amount of $50,000. As administrator c. t. a. he was authorized to continue the operation of the hotel pursuant to the order of the probate court and until such time as was necessary to liquidate the assets and satisfy the claims and demands allowed against the estate. He was also authorized to hire employees, and a manager, if necessary, to assist in operating the hotel, and pay all expenses, including wages, salaries, F. I. C. A. and withholding taxes incidental to such business until otherwise ordered by the court.
During the middle of December, 1962, the hotel property was sold at public auction and Norman made a bid of $10,000. His bid was insufficient and the property sold for $28,500. In January, 1963, the appellees sold the hotel furnishings given to them in their mother’s deed of gift, including the furnishings which were replaced, for approximately $8,000 and the proceeds were divided equally between Norman and Margaret. Had Norman been successful in his effort to purchase the hotel, he and Margaret would not have sold the furnishings.
The statute, K. S. A. 59-1402, authorizing the continuance of the business of a decedent, reads:
“Upon a showing of advantage to the estate the court, with or without notice, may authorize a representative to continue and operate any business of a decedent or ward for the benefit of his estate, under such conditions, restrictions, regulations and requirements, and for such periods of time not exceeding six months for any one period as the court may determine. No debts incurred or contracts entered into shall involve the estate or the representative beyond the assets used in such business immediately prior to the death of the decedent or the appointment of a guardian for the estate of the ward.” (Emphasis supplied.)
The foregoing was an entirely new section when the probate code was enacted in 1939. The first sentence was lifted bodily from Section 98 of the Minnesota Probate Code. (See, Session Laws of Minnesota, 1935, Ch. 72, §98), and the second sentence was taken from the Ohio Probate Code. (See, Ohio Probate Code, § 10509-9 [114 Ohio Laws, pp. 320, 402; 116 Ohio Laws, pp. '385, 394, § 1, effective September 2, 1935], Title 21, Page’s Ohio Revised Code Annotated, § 2113.30.) In some cases it may be advantageous to an estate to continue the decedent’s business for a limited period in order to obtain the greatest amount in liquidating the business. (Judicial Council, 1939.) The statute is so drawn that as many safeguards against loss are provided as are reasonable. The probate court in which the estate is administered is possessed of the necessary powers and facilities to specifically provide in its order under what conditions and restrictions the business shall be carried on and to require such an accounting as it may determine and to order the business terminated at any time. The statute places no limitation on the rights of testators to direct, in their wills, that their executors carry on the business as they may direct. In the absence of a testamentary authorization to carry on a business, an order of the probate court is necessary to authorize the representative to continue or operate the business. (2 Bartlett’s Kansas Probate Law and Practice, rev. ed., § 824.) See, also, Campbell v. Faxon, 73 Kan. 675, 85 Pac. 760; 5 LRA, n. s., 1002.
We think the district court erred in not sustaining the appellant’s motion for directed verdict. In the first place, a personal representative is limited in incurring obligations which bind the estate (2 Bartlett’s, op. cit., supra), and he may not incur debts or enter into contracts which involve the estate or himself beyond the assets of the decedent used in such business immediately prior to the decedent’s death, without the approval of the probate court first obtained. (In re Estate of Wolfe, 190 Kan. 581, 376 P. 2d 825.) In the second place, the furnishings in question were not assets of the decedent’s estate, but were owned by Norman and Margaret and they entered into no contract with the decedent during her lifetime to rent the furnishings. In the third place, there were no orders of the probate court specifically directing the executor to pay the rental value, monthly or otherwise, as was made with respect to Norman’s weekly salary as manager, and to credit the executor’s account with the amounts paid. Assuming, but in no sense deciding, the orders of the court authorizing the executor “to do any and all things necessary and essential to the proper operation and conduct of such business, including . . . the payment of all expenses . . . incidental to such business,” were sufficient to include the payment of the rental value of the furnishing, no claims were timely made for such rental during Norman’s tenure as executor, nor did he or his sister make claims for such allowance when he was discharged as executor on October 1, 1962. On that date, he made final accounting to the court and asked only for allowances for his services as executor and those of his attorneys. It is clear the sums allowed were costs of administration, and entitled to priority of payment over claims allowed against the estate and assigned to the fourth class. (K. S. A. 59-1301; In re Estate of Bertrand, 188 Kan. 531, 363 P. 2d 412.)
Under the provisions of K. S. A. 59-301, the probate court has the power and original jurisdiction to direct and control official acts of executors and administrators to settle their accounts. The statute here involved (K. S. A. 59-1402) was construed and applied in In re Estate of Wolfe, supra, and it was said:
“The foregoing statute cannot be interpreted to mean that the executrix of a decedent’s estate can, without an order of the court, make payments for merchandise and bind the estate so that a fourth-class claim can thereby be accelerated into a second-class claim. Had petitioner desired it could have obtained appropriate orders of the court before continuing transactions with respondent under the circumstances and the duty was upon petitioner to protect itself. . . .” (l. c. 584, 585.) (Emphasis supplied.)
Those who are creditors, not of the testator, but subsequent to his death, determine whether they will be creditors, and they are required to protect themselves by seeing that appropriate orders of the court are entered before continuing transactions with the personal representative, and take timely action to see that their accounts are paid. (In re Estate of Wolfe, supra; 2 Bartlett’s op. cit., supra, § 825.) And so here. Norman and Margaret, as individuals, had the duty to protect themselves by seeing that orders of the probate court continuing the business permitted the executor to pay the rental value of the furnishings, and they were required to timely make claims therefor. Having failed to do so, may their claims now be allowed? We think not. It would seem the language of the statute bars enforcement of the claims, but we do not rest our decision on this point.
The probate court was charged with the duty of approving or disapproving the hotel operation. In continuing the business for more than seven years the court relied upon Norman’s verified accounts as executor. During this time he made regular reports under oath of all receipts and expenses and secured orders of the court continuing the business upon his representations that all expenses were paid. But the claims in question were not included and were not made known until after Norman’s discharge as executor and his efforts to purchase the hotel were unsuccessful. Both appellees testified they gave notice to no one, the probate court or otherwise, they intended to ask for rent for the use of the furnish ings during the operation of the hotel. May they now claim the orders of the court approving Norman’s accounts as executor were meaningless? We think not. To hold otherwise would place a probate court at a great disadvantage in dealing with a fiduciary the court is required to supervise and control. Norman’s verified reports as executor necessarily led the probate court to believe the hotel was paying its way as a going concern. Had the court been advised that additional expenses of $2,400 annually had not been paid it might have terminated the operations much sooner. One of the purposes of the statute is to safeguard against loss to the estate, and, generally speaking, a probate court should not continue a business which is operating at a loss. Moreover, a probate court’s authorization to continue a business should not operate to the prejudice of the decedent’s creditors, and it would seem intolerable to hold that a fiduciary, who regularly makes reports of accounts of operating a business pursuant to the terms and conditions of the court’s authorization to continue the business and procures approval of those accounts based upon his representations, should be permitted to pursue a course of conduct entirely inconsistent with those reports and accounts after he resigns his position of trust.
The record clearly demonstrates that, during the operation of the hotel, the appellees intended to make no claim for rent of the furnishings. Months later, after Norman failed to purchase the hotel and the furnishings had been sold, identical claims known only to the appellees and aggregating the sum of $17,600 were brought to light and filed as expenses of operation. It is evident the claims were an afterthought to recover the rental value for the use of their property after their plans to keep the hotel in their family had been thwarted by the tax claim and the purchase of the hotel by a stranger. We are of the opinion the appellees may not now “mend their hold,” so to speak, and pursue a course inconsistent with their past conduct in dealing with the estate. Whether their conduct be designated as laches, silence, waiver, or acquiescence, it is not very important, and we think they are barred and estopped to now make claims for rental of the furnishings.
There are certain principles recognized which are analogous to the doctrine of estoppel and which are sometimes described as c/wasi-estoppel. There the conscience of a court is repelled by the assertion of rights inconsistent with a litigant’s past conduct. (Graybar Electric Company v. McClave, 91 Ariz. 223, 371 P. 2d 350; 3 A. L. R. 3d 750.) The doctrine deals with silence on the part of those who ought to speak. It deals with conscience on the part of those who know the facts and do not speak. (Lillard v. Johnson County, 102 Kan. 822, 172 Pac. 518; Knox v. Great Lakes Pipe Line Co., 135 Kan. 170, 9 P. 2d 650; Wilson v. Stephenson, 143 Kan. 91, 53 P. 2d 874.) In Wilson v. Stephenson, supra, it was held:
“The present position of the defendant in this action is so inconsistent with that which she maintained for several years as administratrix of the estate of her deceased husband — as shown by the evidence recited in this opinion aside from the facts in the case decided against her — as to justify the holding that in equity and good conscience she was barred and estopped from taking advantage of her own wrong to the detriment of others she formerly represented.” (Syl.)
Likewise, in the case of Bank v. Jesch, 99 Kan. 797, 163 Pac. 150, it was said:
“The plaintiff contends that by his conduct at this time the defendant was precluded from afterwards denying its claim. 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.) . . .” (l. c. 799, 800.)
See, also, Nogrady v. Fourth National Bank, 136 Kan. 43, 12 P. 2d 787; Schiffelbein v. Sisters of Charity of Leavenworth, 190 Kan. 278, 374 P. 2d 42, and Star Leasing Corp. v. Elliott, 194 Kan. 206, 398 P. 2d 566. In the Schiffelbein case, supra, attention was directed to 19 Am. Jur., Estoppel, Sec. 62, p. 678, where it was said:
“ ‘. . . Estoppel by acquiescence is, obviously, closely related on the one hand to estoppel by consent and, on the other hand, to estoppel by silence or inaction, or by delay. In fact it is often impossible to distinguish clearly between such estoppels, and the courts in many instances use the term “acquiescence” as covering or including all the others. “Acquiescence,” as the term is here used, however, refers to an implied consent and need not involve anything in the nature of a positive affirmation; and while, as has already been pointed out, silence or inaction may, under some circumstances, amount to acquiescence, it does so only where the circumstances are such as to afford some ground for believing that acquiescence was intended. . . .’” (l. c. 282.)
The jurisdiction of the probate court to approve and confirm Norman’s reports and accounts as executor reflecting expenses necessarily incurred in operating the hotel, is beyond question. If the orders of the court were wrong, he must suffer the consequences of having procured them. Margaret was aware of the facts heretofore set forth and by her implied consent, silence or inaction, she acquiesced in Norman’s failure to include the rental for the furnishings in his reports to the probate court. By her silence and inaction she made it possible for the probate court to continue the business when the hotel’s financial position would have been clearly altered had she timely filed her claim. As indicated, whether the appellees’ conduct be designated as laches, silence, waiver or acquiescence, we hold they are estopped to change their position and disrupt the orders and decisions of the probate court in the administration of the decedent’s estate, and their claims are unenforceable.
The judgment is reversed with directions to the district court to dismiss the appellees’ claims. It is so ordered.
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The opinion of the court was delivered by
Hatcher, C.:
This is- an appeal from an order denying a motion to set aside a default judgment rendered in an action for damages resulting from injuries received in an automobile collision.
We first state those facts which are not in dispute.
On February 24, 1964, an automobile driven by the plaintiff, Minnie O. Wilson, collided with an automobile driven by the defendant, Robert L. Miller, but which was owned by the defendant, Frank McCulla. The plaintiff suffered injuries. Negotiations for settlement broke down when the plaintiff refused an offer of $500.
On May 10, 1965, the plaintiff brought an action against Miller and McCulla praying for damages in the amount of $35,000. The sheriffs return shows that both defendants were personally served with summons. Defendant Miller was served on May 13, 1965. Neither party answered or otherwise responded to the summons.
On June 7, 1965, the plaintiff presented evidence and the court rendered a default judgment against the defendants in the amount of $5,000.
Defendant McCulla did not contest the judgment. Defendant Miller, on November 8, 1965, filed a motion to set aside the default judgment stating that he had a meritorious defense. The motion was supported by Miller’s affidavit which stated:
“At the time of the fihng of the above case, affiant was a resident of Leavenworth County, Kansas; that at the time of service of summons, affiant was in the process of moving (to the state of Missouri); and, being unaware of the necessity of delivering said papers to his insurance carrier, he inadvertently neglected to notify his insurance carrier, the Farmers Insurance Exchange, of the fact that he was served with summons in the above cause.
“Affiant further, states that he did not realize it was necessary for him to forward said papers to the company and that in the confusion of moving, he temporarily misplaced said summons and thereafter failed to notify his insurance carrier of the pendency of the suit.”
Following a hearing in which numerous affidavits were filed and considered, the trial court denied the motion to set aside the default judgment.
Defendant Miller has appealed.
The appellant contends that the default was the result of his inadvertence and excusable neglect, and that the trial court abused its discretion in denying the motion to vacate. He suggests that the interest of justice is best served by a trial on the merits, and that matters involving large sums of money should not be determined by default judgments.
We find merit in appellant’s suggestion but we must suggest in reply that 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.
The applicable statutory provision (K. S. A. 60-260[b]) provides:
“On motion and upon such tenns as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . .”
The above provision is made applicable to default judgments by K. S. A. 60-255 (b) which reads:
“For good cause shown the court may set aside a judgment entered by default in accordance with section 60-260 (b).”
It is the general rule, and the rule is conceded by appellant, that the relief to be granted under these provisions rests in the sound discretion of the trial court.
We concur in that policy of the law which favors the hearing of a litigant’s claim on the merits. However, laudable as is the policy, courts are required to make a determination between such a goal and the necessity of achieving finality in litigation.
In Lackey v. Medora Township, 194 Kan. 794, 401 P. 2d 911, in considering relief under the provisions of K. S. A. 60-260 (b) (1) we stated:
“Since the foregoing provision was lifted from rule 60 of the Federal Rules of Civil Procedure we may look to federal cases for its construction and application.
“Relief under the provision quoted is not a matter of right, but is addressed to the sound discretion of the trial court. See, e. g., Fischer v. Dover Steamship Co., 218 F. 2d 682; Smith v. Kincaid, 249 F. 2d 243; and Petition of Pui Lan Yee, 20 F. R. D. 399. Discretion should ordinarily incline towards granting relief in order that judgments reflect the true merits of the case. (Barber v. Turberville, 218 F. 2d 34.) However, it is desirable that final judgments not be lightly disturbed and the motions and the grounds for that relief should be closely scrutinized.” (p. 796.)
The trial court in its discretion might well have granted the motion to vacate the judgment. However, since the relief requested is essentially discretionary, we would be loath to substitute our judgment for that of the trial court in the absence of a clear showing that the neglect was not simply negligence amounting to reckless indifference. (Nederlandsche Handel-Maatschappij, N. V. v. Jay Emm, Inc., 301 F. 2d 114.)
The appellant attempts to inject sympathy for his insurer in the case. One of appellant’s affidavits states:
“That affiant [representative of the insurer] and Mr. Boone, [attorney for appellee] on numerous occasions, discussed settlement of said claim, and Mr. Boone advised affiant, after an offer of settlement had been made, that plaintiff would not accept said offer; that he could not oontrol his client; and affiant was led to believe that no further action would be taken on the file. Affiant states that thereafter the insurance company’s file on the matter was closed.”
It is difficult to conclude that the insurer was led to believe that no action would be filed because the appellee turned down an offer of $500 for the settlement of the claim. Furthermore, the law of this state specifically prohibits the mention of insurance in the trial of an action such as we have here, and this court, at the insistence of the insurance carriers, has guarded the right of such insurers to remain aloof from litigation in which the liability of its insured is being tested. (See, Muck, Administratrix v. Claflin, 197 Kan. 594, 419 P. 2d 1017, where a brief as amicus curiae was filed by the American Insurance Association, American Mutual Insurance Alliance and National Association of Independent Insurers.) The arrangement for notice to the insurer as to the filing of an action must rest between the insurer and the insured.
The judgment is affirmed.
APPROVED BY THE COURT.
Fontron, J., dissents.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment awarding to a father the custody of his child. Three or four years ago the father and mother were divorced, and the custody of the child was then given to the mother, with the qualifying provision that the father should have custody of it “away from the plaintiff [mother] and her family for a period of six weeks during each and every year . . . until such child arrived at the age of twenty-one years."
On January 23, 1919, the divorced mother died. Three days later her father obtained the guardianship of the child, and four days later he relinquished his right as guardian to his wife (the child’s grandmother), and she adopted it with the sanction and approval of the probate court.
Upon being advised of these hasty proceedings, the father promptly instituted an appeal to the district court. The cause was tried, witnesses pro and con were heard at length, and the trial court found—
“That the said Charles E. Crews is the father of the said William Robert Crews, and is a man of good moral character, and a fit person in all respects to have the care, custody and control of his said son, William Robert Crews, and financially able to properly care for the said son.”
Pursuant to this finding the trial court set aside the adoption of the child by its grandmother, and awarded the custody of it to its- father.
■ The grandmother appeals.
This case is foreclosed by the findings of the trial court. These findings were supported by evidence, not by all of the evidence, but by sufficient evidence, and that ends this controversy so far as the facts are concerned. (Mueller v. Campbell, 95 Kan. 420, 148 Pac. 737; Bruington v. Wagoner, 100 Kan. ,439, 164 Pac. 1057.)
Since the trial court found that the father was a fit person in all respects to have the custody of his infant son, and the mother was dead, the law of the land accords with the law of nature, and there is no just law under the sun which would deny him that custody, no matter how reluctantly an affectionate grandparent may yield thereto. (In re Hollinger, 90 Kan. 77, 132 Pac. 1181; Pinney v. Sulzen, 91 Kan. 407, 137 Pac. 987; Purdy v. Ernst, 93 Kan. 157, 143 Pac. 429; Buchanan v. Buchanan, 93 Kan. 613, 144 Pac. 840; In re Zeigler, Petitioner, 103 Kan. 901, 176 Pac. 974.)
Nor can this judgment be disturbed because the, trial court excluded from its consideration the allegations recited in the dead mother’s petition for a divorce. That divorce was granted on the grounds of “desertion and nonsupport,” and it must be concluded that however startling the allegations of the petition may have been, nothing could have been disclosed in the divorce trial which showed that the defendant father was an unfit person to have any custody of his child. Indeed, the mother and father appear to have amicably- stipulated that the custody of the child should be given to the father exclusively “and away from the plaintiff and her family” for six weeks each year—
“One week during the Christmas holidays commencing on the 24th day of December, 1916, and ending on December 31st,' 1916, and for the same time each year-thereafter. Two weeks in the month of June, each and every year, commencing on the 15th day of June of each year hereafter and extending to the 1st day of July each year hereafter and also for the period of time commencing on the 10th day of August each year hereafter and extending; to the 1st day of September of each of said years until such minor child shall have reached his majority.”
However strongly the child’s grandmother may feel about the unfitness of her former son-in-law to have the custody of her grandchild — and the court can appreciate her affection and natural solicitude for the youngster — his own mother did not feel so keenly about any supposed perils of intrusting him to his father, at least for a few weeks each year. Now that the mother is dead, it is no unusual conclusion that the trial court reached when it decreed that the lad should be given to his father and natural guardian.
The record discloses no error which would justify our inter- ' ference, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment declaring a lien on an undivided one-half of certain real property in the city of Topeka, and ordering that the one-half of the real property be sold for the payment of the amount of the lien, $1,000, and interest thereon, and costs.
On January 12, 1907, judgment was rendered in the district court of Shawnee county in favor of W. W. Harvey, as receiver of the Masonic Mutual Benefit Society of Kansas, and against L. C. Wasson, George W. Clark, Albert K. Wilson, James P. Howe, John C. Postlethwaite, Willis Edson, and Alfred A. Rodgers. From that judgment an appeal was taken to this court and the judgment of this court is found in Harvey v. Wasson, 74 Kan. 489, 87 Pac. 720. Execution was issued on that judgment, and Postlethwaite paid it. He filed with the clerk of the district court notice of his payment of the judgment and of a claim to contribution and repayment. Postlethwaite died on November 26, 1910, and Robert C. Postlethwaite was appointed administrator of his estate. Willis Edson died on May 1, 1911, and Mary Edson was appointed administratrix of his estate on May 12, 1911.
On July 8, 1912, on the application of Robert C. Postlethwaite, the administrator of John C. Postlethwaite, the judgment of Harvey, as receiver; was revived against Mary Edson, as administratrix of the estate of Willis Edson. An appeal was taken to this court on the judgment of revivor, Harvey v. Wasson (supra). Mary Edson died in April, 1914. The present action, one to subject the real property in controversy to the payment of the claim of John C. Postlethwaite for contribution on account of his satisfaction of the judgment in Harvey v. Wasson was comménced on May 4, 1914.
Frank P. Edson and Jessie L. McCabe are children of Willis Edson and Mary Edson and are the devisees of the property in controversy under the joint will of Willis Edson and Mary Edson. Judgment was rendered in favor of Frank P. Edson and Jessie L. McCabe, and Robert C. Postlethwaite, as administrator, appealed therefrom. The judgment of the district court was reversed, and the cause was remanded for further proceedings (Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802). The action was again tried in the district court, and it then resulted in a judgment in favor of the plaintiff, and the defendants appealed. That judgment was modified and the cause remanded for further proceedings (Postlethwaite v. Edson, 102 Kan. 104, 171 Pac. 769). An application for a rehearing was granted, and the judgment of this court on that application is found in Postlethwaite v. Edson, 102 Kan. 619, 171 Pac. 769, where the decision and opinion in Postlethwaite v. Edson, 102 Kan. 104, were adhered to. When the action was again tried in the district court, judgment was rendered in favor of the plaintiff, and the defendants have again appealed.
1. The first proposition argued by the defendants is:
“That this property was conveyed hy the joint and mutual will of Willis Edson and Mary Edson, free from debt, that took effect upon the death of Willis Edson as to the fee, the right of possession, only, passing at the death of Mary Edson.”
This is the same question that was presented and decided in Postlethwaite v. Edson, 102 Kan. 104 and 619. The defendants insist that this court there committed error, and argue that the same questions are now before the court and should be again considered, and the error be corrected. If an error was committed, the court should not and would not hesitate to correct that error. The question presented has again been considered, and the conclusion formerly reached is adhered to.
The defendants cite Lewis v. Lewis, 104 Kan. 269-274, 178 Pac. 421, and argue that by the decision in that case this court overruled its decision in Postlethwaite v. Edson, 102 Kan. 104 and 619. In one particular the cases are parallel; each involved a mutual and joint will made by husband and wife. Further than that the cases are not parallel. In Lewis v. Lewis, the husband survived the wife, again married, and then died. His widow sought to recover one-half of the property owned by him. The court held that T. W. Lewis could not revoke his part of the mutual and joint will by a second marriage. In the present case the defendants argue that a devise of the homestead gave to them that homestead free from the claim of general creditors. The two propositions are widely separated, and one cannot be logically cited in support of a contention in favor of the other.
2. The second claim of the defendants is, “That John C. Postlethwaite, if he were living, could not compel contribution from Willis Edson, if he were living, in this case.” This claim arises out of the following circumstances. John C. Postlethwaite and his codefendants in Harvey v. Wasson were directors of the Masonic Mutual Benefit Society. The directors sold the assets and affairs of the society to the Northwestern Life Assurance Company of Illinois, without reserving funds sufficient to pay all existing claims against the society. Willis Edson, as one of the directors, opposed the sale and transfer and did all he could to prevent it. The defendants argue that because of his action in opposing the sale and transfer of the assets and affairs of the Masonic Mutual Benefit Society, Willis Edson was not liable to John C. Postlethwaite on account of the judgment rendered in Harvey v. Wasson; that John C. Postlethwaite could not compel contribution from Willis Ed-son ; that the estate of Willis Edson cannot be compelled to pay contribution; and that, therefore, the property devised to the defendants cannot be subject to the payment of such contribution. This argument is met by the plaintiff by an allegation in his reply, and by evidence tending to prove the allegation, that this question had been adjudicated and is not now open for consideration. When the judgment of Harvey, receiver, was revived against Mary Edson, administratrix, on the application of Robert C. Postlethwaite, adminstrator of the estate of John C. Postlethwaite, Mary Edson filed an answer in the revivor proceeding in which she alleged:
“That this judgment was recovered against the defendants for thes wrong and misconduct of the defendants as directors of The Masonic Mutual Benefit Society of Kansas, in disposing of its assets and without providing for the death loss made the basis of said judgment; that Willis Edson was one of the directors and voted against the disposing of said assets, and was in no way guilty of wrong or misconduct as such director and did all that he could to prevent the same, and that J. C. Postlethwaite urged, argued and voted for the disposition of such assets and that as to J. C. Postlethwaite and his administrator after his decease, the said Mary Edson, as administratrix, has a full and just defense and asks that it may be submitted to a jury for trial, or that the right of contribution and the right of the administrator to recover may be presented regularly as a claim against the estate of Willis Edson, before the Probate Court of Shawnee County.”
With this answer on file, the judgment was revived. On appeal to this court this question was pot presented in the briefs nor discussed in the opinion, Harvey v. Wasson, 91 Kan. 70, 136 Pac. 919.
On September 30, 1916, in the present action, judgment was rendered by the district court as follows:
“Now, on this 30th day of September, 1916, the court having duly considered the issues and the evidence in this case, finds for the plaintiff and against the defendants: and the court finds that on account of the matters alleged in plaintiff’s petition there is due and owing plaintiff on his claim against the estate of Willis Edson, deceased, the sum of $1000.00, and that the same is a lien on the property described in plaintiff’s petition, to wit, lots 246 and 248 on West Eighth Street in the City of Topeka, Shawnee County, Kansas.
“It is therefore adjudged and decreed by the court that plaintiff is entitled to recover from the estate of Willis Edson, deceased, said sum of $1000.00, and plaintiff is adjudged and decreed to have a lien on the above described lots for said sum with interest from this date, and the costs herein taxed at $ -.”
In this judgment the real property described was ordered sold to pay the amount due the plaintiff. From this judgment an appeal was taken, and the decision thereon is found in Postlethwaite v. Edson, 102 Kan. 104, 171 Pac. 769; Id., 102 Kan. 619, 171 Pac. 769. On this appeal this court, in 102 Kan. 104, said:
“The case was first here on appeal from an order overruling a demurrer to the answer. When it reached the lower court the defendants amended their answer, parts of which were stricken out on motion of the plaintiff and a demurrer to the remainder was sustained, from which orders this appeal is taken. Hence, the question now before us is the claimed error in such ruling. The parts stricken out amounted to an allegation that the Edsons talked over the making of the will and expressed their intentions and desires, counseled with an experienced lawyer who drew the instrument and suggested a certain addition with which the testators were pleased. In other words, the trial court refused to permit the defendants to go into the conversations and intentions of the makers of the will, on the theory doubtless that it is plain on its face and needs no extrinsic aid for its proper construction. The remainder of the amended answer pleaded the homestead character of the land devised while occupied by the parents or their survivors, the separate homes elsewhere occupied by the defendants, that the homestead was procured by the joint efforts of the devisors and held by them as tenants in common.
“Error is assigned on sustaining a demurrer to all of the remaining answer except the general denial, because the judgment of the plain tiff was never a lien on this property; because the judgment was not against Mary Edson, the joint owner with her husband of the homestead; because the will is ambiguous and susceptible to explanation of the intention of its makers, and because it carried a fee to their survivor. The last reason is disposed of by the former decision. The first may be conceded, this suit being brought for the very purpose of subjecting the land to the payment of the plaintiff’s judgment, which would be idle if it were already a lien thereon. This leaves only the second and third for consideration — the effect of the alleged one-half or joint ownership by Mrs. Edson, and the claimed ambiguity of the will.” (p. 106.)
The order of this court was that—
“The judgment is modified as to the sustaining of the demurrer, and the cause is remanded for further proceedings in accordance herewith.” (p. 115.)
That left the judgment finding that there was $1,000 due from the estate of Willis Edson to the. plaintiff, unreversed.' That part of the judgment was not attacked nor questioned. When the action was returned to the district court, the defendants amended their answer by setting up in defense the matters that had been set up by Mary Edson as administratrix when she resisted the revivor of the judgment of Harvey v. Wasson. The plaintiff, in reply to that-answer, alleged that the matters therein set out had been adjudicated. The trial resulted in the judgment from which the present appeal is taken, a portion of which is as follows:
“It is Therefore Ordered and Adjudged by the court that the amount heretofore, and on the 30th day of September, 1916, found due to plaintiff herein by the judgment of this court, viz: the sum of $1,000.00, together with the costs herein, taxed at $-, be, and the same is hereby declared to be a lien upon the undivided half interest of the defendants in lots 246 and 248, on Eighth Avenue West, in the City of Topeka, Shawnee County, Kansas, being the one-half interest formerly owned by Willis Edson, which undivided one-half interest is hereby ordered sold for the payment'of said sum of $1,000.00, and interest at 6% from September 30th, 1916, and the costs of this action. Whereof let order of sale issue to the sheriff of Shawnee County, Kansas.”
The judgment of September 30, 1916, adjudicated that there was $1,000 due from the estate of Willis Edson to the plaintiff on account of the claim for contribution by reason of the payment of the judgment of Harvey v. Wasson. In their appeal, the,defendants failed to contest the validity of the judgment of September 30, 1916, so far as the $1,000 was concerned, but sought to avoid that part of the judgment declar ing a lien on the real property in controversy. By the judgment in Harvey v. Wasson, the notice of the payment thereof, the claim to contribution therefor, and by the judgment rendered in the present action on September 30, 1916, the claim of the plaintiff to contribution from the estate of Willis Edson was established so far as the defendants are concerned, and the matter is not now open for consideration.
3. The defendants claim that the judgment in Harvey v. Wasson has never been revived against the defendants in the present action, nor against any one else since the death of Mary Edson in April, 1914. The defendants argue that because there has been no such revivor, this action cannot now be maintained.
The revivor of the judgment against Mary Edson, administratrix, established the judgment against the estate of Willis Edson. Another revivor against the estate was not necessary. Whoever was appointed in her place succeeded to her rights and obligations to the estate and to its creditors. Further proceedings for or against the estate should have been conducted in the name of the new personal representative. The present action is on the judgment against the estate of Willis Edson to compel payment of that judgment out of property which the plaintiff claims Willis Edson owned at the time of his death, but which the defendants claim was owned by Mary Edson. As against the defendants it was not necessary again to revive the judgment before commencing this action to establish the ownership of the property. The defendants were brought into this action either by summons or an entry of appearance, and a revivor against them would have been an idle ceremony. They would not have been concluded by the revivor any more than they were concluded by the original judgment to which they were not a party. As soon as the judgment was revived against the estate of Willis Edson, the plaintiff had the right to commence this action, to have the title to the real propery in controversy determined, and to have the property subjected to the payment of the plaintiff’s claim if the property belonged to Willis Edson at his death.
4. The defendants claim that the property in controversy belonged to Mary Edson, and not to Willis Edson. Evidence was introduced on that question and from that evidence the court found that Mary Edson and Willis Edson each owned an undivided one-half of the property. Each side is contesting this finding of the court. The plaintiff presents the question by a cross appeal and argues that on the undisputed evidence and the findings of the jury, this court should say that Willis Edson was the absolute owner of all the property, while the defendants argue that the evidence was that Mary Edson. was the owner of that property.
The court submitted special questions to the jury, one of which and the answer thereto were as follows:
“Question 13: Who was the owner of the West Eighth Street property at or prior to the death of Willis Edson? Answer: Mary Edson.”
The court set that finding aside and in its place found:
“2. That Mary Edson was the owner of an undivided one-half of the West Eighth Street property, and Willis Edson the owner of the other undivided one-half thereof.”
The petition alleged that Willis Edson owned the property at the time of his death, while the answer alleged that Mary Edson owned it. Willis Edson and Mary Edson were husband and wife. They occupied the property as their homestead, and by their joint will devised the property, after the death of both of them, to the defendants. The title to the property stood in the name of Willis Edson. Mary Edson contributed money towards its purchase. Their relations were pleasantMary Edson took care of the home, while Willis Edson attended to business affairs. The evidence was not conflicting, but it was of such a character that different minds might reasonably have reached different conclusions therefrom. Under such circumstances the finding of the court is conclusive.
5. The defendants contend that they were entitled to a jury to try the question of the ownership of the property, because the issue raised by the pleadings was, “whether Mary Edson or Willis Edson was the owner of this property.” The defendants requested a jury trial and a general verdict on' this question. The court refused the request. The defendants cite Gordon v. Munn, 83 Kan. 242, 111 Pac. 177, in support of their contention. In Akins v. Holmes, 89 Kan. 812, 815, 133 Pac. 849, this court said:
“There is no similarity between this case and the cases of Gordon v. Munn, 83 Kan. 242, 111 Pac. 177, and Atkinson v. Crowe, 80 Kan. 161, 102 Pac. 50, 106 Pac. 1052, relied on by the plaintiffs. In each of those cases the contest was between rival claimants to ownership, and the real issue was whether the title of the one party or the title of the other was such as to require an award of the property to its proponent. The court held that the form in which this issue was cast should not control the method of trial, but that the essential nature of the controversy should determine whether or not a jury trial ought to be granted.” (p. 815.)
This principle was adhered to in Houston v. Goemann, 99 Kan. 438, 441, 162 Pac. 271. Section 279 of the code of civil procedure, on which this contention of the defendants is based, reads:
“Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury or referred as provided in this code.” (Gen. Stat. 1915, § 7179.)
This is not an action for the recovery of money, although the recovery of money is incidentally involved. Neither is it an action for the recovery of real property, although, if the action is successful, the defendants may be deprived of the possession of that property. In the latter particular the present action is distinguishable from Gordon v. Munn, and that case does not control in the present one.
The judgment is affirmed.
Porter, J., dissents from the first paragraph of the syllabus and the corresponding portion of the opinion.
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The opinion of the court was delivered by
Porter, J.:
This action was tried in the district court on an appeal from the city court of Wichita. The court sustained a demurrer to the evidence, and the plaintiff brings the case here for review.
The plaintiff’s claim rests in part upon the following written order:
“($500.00) Sept. 29, 1916.
“Mr. L. E. Simpson.
“Dear Sir: Please pay to J. P. Sheffler Five Hundred Dollars, my commission on the Caney Oil deal and this will he your receipt for the same. R. L. Hancock.
“For value received I hereby transfer and assign the above order and my claim to the money therein mentioned to D. W. Travis.
“J. P. Sheffler.”
■ The following is a brief summary of the facts shown by the evidence: In the fall of 1916 the defendant Simpson, J. P. Sheffler and R. L. Hancock, as agents, negotiated the sale of certain oil leases. It was the understanding at first that the commission would amount to $3,000 and that the share of each would be $1,000. Simpson, who had charge of the transaction, afterwards informed his associates that he had sold the leases, but had not been able to get the full price, and that he could only pay Sheffler and Hancock $500 each as their share of the commission. He stated that he would pay them as .soon as the deal was closed, which would be in a week or ten days.. They consented to this arrangement. Hancock told Simpson that he was arranging to leave Wichita and would give Sheffler an order on Simpson for his $500; Simpson told him that was satisfactory, and that he would pay the amount to Sheffler upon the latter bringing the order to him. Sheffler acted on behalf of Hancock in attempting to collect the latter’s share from Simpson. Simpson paid Sheffler $125 on his own share and told him that he had been obliged to take notes for part of the payments and that the balance of the commission would be paid in installments. Sheffler testified that in some way he found out that Simpson had received his own share. Hancock purchased an automobile from Travis, and in payment therefor some arrangement was made by which Sheffler assigned and transferred to Travis the order that Hancock had drawn upon Simpson. Thereafter, Sheffler, acting for Travis, continued his eiforts to collect the money from Simpson. In a conversation about payment of the money, Simpson told him that Hancock owed him, and for that reason he would not pay the order.
The theory upon which the court sustainéd the demurrer is not disclosed, but the argument advanced by the defendant is that there was a failure to prove the following facts, which it is insisted it was incumbent on the plaintiff to establish: First, that the oil deal had been consummated; second, that the commission had been earned; third, that the same had been paid to Simpson; and fourth, that plaintiff was the owner of the assignment and entitled to recover. Upon the last proposition the evidence showed that the order was given in the first instance to authorize Sheffler to collect Hancock’s share of the commission; that afterwards it was transferred to the plaintiff in part payment for an automobile, so that the plaintiff was entitled to recover if there was any evidence to sustain the other issues. The first two essentials as stated by the defendant are reducible to one — if the oil deal was in fact consummated, the commission was earned. It is insisted that the testimony of plaintiff and his witnesses showed that the commission in which Hancock was to participate was not due and had never been paid to Simpson. Hancock’s testimony that Simpson told him that if he would give Sheffler an order for the $500 he would pay the money upon presentation of the order; Sheffler’s testimony, in substance, that in some conversation with Simpson he found out that Simpson had received his own share of the commission; the various excuses given by Simpson for not paying his associates their shares, telling them at one time that he had been obliged to take notes for part of the money, at another time giving as a reason for not paying Hancock’s share that Hancock owed him money, and other circumstances, tended to show that the money had been received by Simpson, and that he was withholding it. Moreover, proof that in Simpson’s own testimony on the trial of the case in the city court he stated that he had received the commission, was of itself sufficient to overcome the demurrer. The defendant’s brief contains no reference to these portions of the testi mony, but stresses the circumstances favorable to the defendant. It is true, none of the witnesses saw the money paid to the defendant, and some of them stated they did not know whether he had received it; but the most that could be urged is, that from portions of the evidence some inferences might be drawn favorable to the defendant. The demurrer, however, conceded every inference favorable to the plaintiff that might be drawn from the evidence. Even if some of the testimony tended to contradict plaintiff’s claim, it was error to sustain the demurrer. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531.)
The judgment is reversed, and the cause is remanded with directions to overrule the demurrer.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for negligently killing one mule and injuring another. The plaintiffs recovered, and the.defendant appeals.
On the evening of the accident a freight train came into Fort Scott from the west. After leaving the main line and taking a passing track, the engine stopped to take water at the west side of National avenue, a street running north and. south. A passenger train coming from the west on the main line was due to arrive in a few minutes. The freight train was too long for the passing track, and in order to clear the main line for the passenger train, it was necessary for the engine of the freight train to go out on the main line beyond the east end of the passing track. Beyond the east end of the passing track was a bridge over a stream. While the engine was standing still at the water crane, an employee of the plaintiffs, who was riding a horse, led the mules, which were tied together, down the street from the north and over the crossing. When the horSe and rider were crossing, or had just crossed, the main track, south of the passing track on which the engine stood, the engine was put in motion. The noise incident to starting the train frightened the mules, which ran around the horse toward the east, and broke away from the rider but not from each other. They ran eastward along the railroad, the pair at times being astride the north rail, and at times being astride the south rail, with the engine following them. The electric headlight of the engine was kept burning, the bell was kept ringing, steam continued to be emitted, and the noise produced by operation of the engine continued until the engine stopped within fifteen or twenty feet of the bridge. It was then discovered the mules had gone upon the bridge in advance of the engine, with the result that one was killed and the other injured.
One of the acts of negligence charged was the emission of quantities of steam at the starting of the engine, which frightened the mules. The testimony for the plaintiffs was that the cylinder cocks were opened. The engineer testified that opening the cylinder cocks was unnecessary under the circumstances, that there was no occasion for it, that he would consider it a breach of- engineering to open the cylinder cocks of an engine in going over'the crossing. With the general verdict for the plaintiffs the jury returned the following special findings of fact:
“1. If you find for the plaintiff, state on what act or acts of the defendant you base your verdict. Answer: Excessive noise in starting train and escaping steam from cylinder cocks.
“2. If you find that any employee of the defendant was negligent, state whati employee it was and in what the said negligence consisted. Answer: Engineer and fireman, continuous noise, bell ringing, and escaping steam from cylinder cocks.”
The defendant asserts that the engineer was not negligent. It is not necessary to examine’ the argument made in support of the assertion, because it assumes no more noise than necessary was made in starting the train. The testimony was that volumes of steam flew out of the cylinder cocks, unnecessarily and improperly opened, for a distance of ten feet on each side, with the noise which attends such action. The special finding of negligence was based on this testimony.
The defendant asserts that if the engineer was negligent, his negligence was not the proximate cause of the accident. The familiar cases stating and applying the doctrine of proximate cause are cited, and the plaintiffs might well rest their case on the defendant’s citations. The engineer started the engine for the purpose of moving it forward approximately to the bridge. He was not certain but that he would need to go on the bridge, in order that his caboose might clear the main track at the west end of the passing track. He was obliged to execute the movement to avoid collision with the on-coming passenger train. The rules required him to keep his headlight burning while fouling the main line, and to keep his bell ringing while moving through the yards. The ordinary noises incident to operation of the engine and movement of the extra heavy train would necessarily continue until he stopped. He saw the plaintiffs’ employee cross the track in front of the engine, leading the mules. It required no keenness of foresight to understand that unnecessary and improper noise in starting the engine might frighten the mules and cause them to run away from the engine, and to understand that if they started down the track they might be chased into the bridge. Such being the circumstances, the proximate relation of the negligence to the accident is obvious. It is plain the case turned on whether or not the cylinder cocks were negligently opened, and on this issue of fact the defendant was defeated.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment granting John H. Blair a divorce from Lillie C. Blair because of her fault, and decreeing that by reason of certain agreements between them and payments made by the plaintiff, the defendant was not entitled to an allowance of alimony.
The main contention of the defendant is that the findings and judgment are not supported by the testimony. A recital of all the testimony in the case would not be justified, since it was conceded at the oral argument that upon an appeal this court cannot weigh conflicting testimony nor set aside findings of fact based on supporting testimony, and therefore the findings in question must be upheld. Even if the concession had not been made, it must have been concluded by this court that there was competent and súbstantial evidence before the trial court fairly tending to support its findings. The ground of divorce was abandonment, and plaintiff alleged that matters of alimony and the adjustment of property rights had been settled and determined by the agreement of the parties. They were married on September 1, 1914, each at that time having a number of children by a former marriage. The defendant was a niece of plaintiff’s former wife and, although a resident of another state, had often visited in plaintiff’s home, and as two of her sisters lived .in the community with plaintiff she had an opportunity to learn, and it appears that she was reasonably well informed as to the plaintiff’s situation and financial con- • dition at the time of the marriage. The extent of his property and the income derived from it was frankly discussed between them, and in contemplation of the marriage an antenuptial agreement was made, which was executed shortly before the ceremony was performed. Because of the loss of that agreement, another in like terms was executed about two months after the marriage had taken place. The agreement, in short, was that he would pay her $2,500, that there should be a segregation of their property rights, each to hold and dispose of his or her then owned or afterwards to be acquired property as fully as if no marriage had occurred. They lived together about two years, when a disagreement arose and defendant left the plaintiff and returned to Nebraska. During the time that they lived together plaintiff paid his wife $1,600 of the amount stipulated in the antenuptial agreement. Some criticisms of .this agreement and the manner in which it was obtained have been made, but it is now conceded that it is a valid and binding contract.
An attack is made on the refusal to allow alimony, and the enforcement of the final settlement that was made between the parties. After the defendant had abandoned plaintiff and declared that she would never live with him again, a final adjust.ment of their property rights was arrived at and, on the pay.ment to the defendant by plaintiff of $200 in addition to the $1,600 already mentioned, the following writing was executed:
“This agreement made and entered into this 19th day of August, 1916, by and between Lillie C. Blair, party of the first part and J. H. Blair, party of the second part, both of Barnard, Lincoln county, Kansas, husband and wife:
“Witnesseth, that said Lillie C. Blair party of the first part, for and in consideration of eighteen hundred ($1,800.00) dollars, paid by J. H. Blair to Lillie C. Blair, the receipt of which is hereby acknowledged, does hereby release all claim, right, title, interest, estate or right of action of whatsoever nature in any and all property, both real, personal and mixed now owned or hereafter acquired by the said J. H. Blair.
“In witness whereof said parties have attached their signature this 19th day of August, 1916. “Lillie C. Blair,
“Party of the first part.
“J. H. Blair,
“Party of the Second Part.”
It is insisted that the writing is not a valid separation agreement, that it lacks sufficient consideration, and is not fair and reasonable in its provisions. Although some aspersions have been cast upon the attorney who prepared the agreements, they appear to be wholly unwarranted. Nothing in his action indicates a violation of any law or rule of professional ethics. Instead of a showing of duress or deceit, the defendant’s testimony shows that the transaction was openly and fairly conducted. After the terms of the agreement had been arranged and she had stated the amount to which she thought herself entitled, the plaintiff offered to supplement it by the payment of $125 more than she asked for. There was no lack of consideration, and a valid agreement as to property rights may be made between husband and wife who have separated or contemplate an immediate separation. (King v. Mollohan, 61 Kan. 683, 60 Pac. 731; Amspoker v. Amspoker, 99 Neb. 122; Note, 12 L. R. A., n. s., 848.) Although not in form a separation agreement, it evidenced a final settlement of their property rights. A separation had occurred through no fault of the plaintiff. No stipulation was made in the writing relating to a divorce, nor is there anything in the proof that a divorce was then within the contemplation of the parties. The writing, whether it is treated as a separation agreement or only as a receipt for money paid in the settlement, was a proper matter for consideration in determining whether alimony should be allowed to the defendant.
Although the court was not bound by the agreements of the parties as to the sufficiency and reasonableness of the allowances made to the defendant, it was at liberty to take into account the unjustifiable conduct of the defendant in abandon ing the plaintiff, the antenuptial agreement, and the money paid in pursuance of it, as well as what was subsequently paid on the final adjustment after the separation had occurred, the short time she remained in plaintiff’s home, what she contributed to the estate while she lived with him, the financial condition of each, and other circumstances not necessary to mention.
In view of the circumstances that have been mentioned, we cannot say that the court ruled erroneously in adjudging that defendant was not entitled to alimony or any further allowance. In awarding alimony, a broad discretion is given to the trial court in determining what allowances shall be deemed sufficient in cases of this character, and it cannot be held that its discretion was abused in this instance.
Judgment affirmed.
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The opinion of the court was delivered by
Porter, J.:
The Eberhardt Construction Company brought this action to recover for labor and material furnished in excavating for the building of a county jail and for stone cut. especially for the building. The court sustained a demurrer to the petition, and the construction - company brings the case here for review.
In many respects the case is a sequel to the case of Construction Co. v. Sedgwick County, 100 Kan. 394, 164 Pac. 281.
In June, 1916, the board of county commissioners, then composed of' S. B. Kernan, J. T. Hessell and C. W. Simmons, adopted a resolution declaring the necessity for the building of a county jail. An election was held and a majority of those voting declared in favor of issuing bonds for the purpose. In December, 1916, the contract was let to the construction company, hereinafter called the appellant, for building the jail; and some equipment and material were purchased, a part of which was placed on the ground. In January, 1917, two members of the board, Hessell and Kernan, were succeeded by F. J. Jorgensen and Walter Henrion. On January 22 the appellant was notified by the board that it had declared the contract void upon the advice of the county attorney. The appellant then brought proceedings in mandamus in this court to require the board to carry out the contract. (Construction Co. v. Sedgwick County, 100 Kan. 394, 164 Pac. 281.) It was held in that case that because of the failure to publish the notice of the bond election for the full period required by the statute, the election was void, and that the board had no power to provide for the erection of a jail without a vote of the people; that the contract entered into under color of such an election is unenforceable. It was further held that the county could not be required to carry out the contract “on the ground of estoppel resulting from the dealings of the commissioners with the contractor, for the reason that the rights of the public are involved.” (Syl. ¶ 7.)
In the present action the appellant seeks to recover from the county the value of labor performed and material furnished under the contract, and for additional damages against the individuals who were county commissioners, on the ground that as ministerial officers they entered into a contract which they were prohibited by law from making, and that on account of the contract and such misfeasance upon their part appellant was damaged. The items included in the claim for damages are the cost of excavation of the basement for the jail, $496.55; the stone cut especially for the building, and delivered to the county, in the sum of $2,387.73; and the further sum of $560.10 for expenses incurred in attempting to carry out the contract.
1. ' Can the action be maintained against the board of county commissioners for labor performed and material furnished in attempting to carry out the contract? It does not seem to be contended that either the excavation made by the • appellant or the cut stone has been or can be used by the county for any purpose whatever. Authorities are not wanting that where under a void contract the municipality has received and enjoyed the benefit of something of value, it cannot escape its liability on a quantum meruit to the full extent to which it has been benefited by the partial performance of the contract. Thus, in Ritchie v. City of Wichita, 99 Kan. 663, 163 Pac. 176, the city was held liable for work actually done under direction of the city officers, because the work was adopted and used by the city. In that case, the city officials made a finding that a petition to pave a street had been signed by a sufficient number of abutting property owners and adopted the resolution to pave the street, and afterwards let the contract pursuant to the resolution. In an action to recover compensation for the work actually done under the contract, it was held that the city was estopped to deny the sufficiency of the petition under which it let the contract, notwithstanding a permanent injunction was afterwards granted at the suit of certain property owners enjoining the. improvement. A large part of the work performed under the contract by the plaintiffs in that case was accepted and used by the city. Afterwards on new proceedings another contract for another kind of paving was let to another contractor on different specifications, which required the filling in of part of the excavations made by the plaintiffs under the original contract, and some of the concrete laid by the plaintiffs was partly below and partly above the grade specified by the new contract. In the action the city-denied its liability and alleged that the proceedings leading up to the letting of the first contract were void. It was held that plaintiffs were entitled to recover for the work which they actually did according to the specifications, no more; that the city was liable for the work done which the city actually adopted and used, and also liable for the work done which was up to the standard of specifications and which was destroyed for no other reason than that the city changed its specifications and determined to lay another kind of paving. It was said in the opinion:
“It is only by a somewhat vigorous interposition of equitable principles that any relief whatever can be accorded in a situation like the case at bar.” (p. 670.)
There was no want of power on the part of the city to proceed if it had regularly exercised its power to award the paving contract. In the present case, in former litigation upon the same state' of facts, it has been decided that the board was without any power to award the contract, and that the contract itself was illegal and void. In the opinion in that case it was said:
“It is also suggested that as the board was acting within the scope of its apparent authority, under color of an election presumably held according to law, for the regularity of which the commissioners themselves vouched, the plaintiff was justified in assuming that all the necessary steps had been duly taken, was not required to make a minute examination of the proceedings, and should be protected in its rights under the contract which it entered into in good faith in reliance on the action of the board. This reasoning, if sound, would in effect allow the board by indirection to exercise a power denied it by the statute — to accomplish a result which the law expressly forbids. The limitation on the power of the board is for the protection of the taxpayers, and acts done by the commissioners in excess of their legal power can not work an estoppel against the public so as to require the performance of an executory contract entered into without authority, or to require recognition of the obligations of such a contract after its partial execution, beyond making compensation for benefits actually received.” (p. 898.)
The appellant cites the case of Brown v. City of Atchison, 39 Kan. 37, 17 Pac. 465. We do not regard that case as in point, for the reason that there the plaintiff fully performed its contract and the city had received and enjoyed the benefit of a portion of the void contract. The city had authority to refund its bonded indebtedness, but was without authority to issue refunding bonds to a greater extent than 60 cents on the dollar, it was held that the contract was entered into in good faith; was not immoral, inequitable or unjust, and being partially performed by one of the parties, the city having received benefits by reason of such performance over and above any equivalent rendered in return, it was required to do equity and to account to the other party for the benefits it received. There is no analogy between the two cases because, so far as the petition in this case shows, the county has derived no benefit from the labor performed and material furnished under the void contract. In attempting to bring itself within the doctrine of Ritchie v. City of Wichita, and Brown v. City of Atchison, supra, the appellant urges that—
“The basement was excavated according to the plans and specifications furnished by the appellee, the board of county commissioners. The manner in which the same was done was never complained of. The county had the basement. It is for its benefit. ... It had the stone to use. The county of Sedgwick has the benefit of the labor and material furnished by appellant.”
The inferences drawn from the facts set forth in the petition are that the excavation is a mere hole in the ground, which the county has neither adopted nor used; and that the stone cut expressly under plans and specifications, long since abandoned and never possessing any force or vitality, has likewise not been adopted or used by the county.
The petition shows that all the facts with respect to the calling of the election and the adoption of the resolution and the letting of the contract were matters of record. The appel lant was bound by the record, and it was its duty to know whether the board of county commissioners had power to act. In Salt Creek Township v. Bridge Co., 51 Kan. 520, 83 Pac. 303, it was said:
“Those dealing with a township must see to it that its officers have power to act, if all the facts appear upon the face of the records of the township.” (Syl. ¶ 4.)
In the mandamus case involving the facts in the present case, it was said:
“The time for which a notice has been published in a newspaper is a subject which admits of exact knowledge and absolute proof, and a finding contrary to the fact cannot be made the basis of official power.” (Construction Co. v. Sedgwick County, 100 Kan. 394, 398.)
We hold, therefore, that the petition states no cause of action against the county.
2. The petition makes a number of charges respecting the conduct of the individual members of the board. Among these are that the several members represented to appellant that the board had duly executed and issued the bonds; pretended to duly accept the terms for the¡ sale of the bonds'; approved the bond presented by appellant for the faithful discharge of the contract on its part, and in order to induce appellant to proceed with the construction, pretended to pass and cause to be entered a resolution reciting the proceedings leading up to the issuance of the bonds and the letting of the contract; and that “all of the matters and things” contained in the resolution adopted by the board “were then, verbally represented” to appellant by the board and the several members thereof, for the purpose of inducing it to immediately order and purchase material, and procure labor. It is alleged that in violation of their official duties the board and the several members thereof “did not cause said notice of said special election . . . to be published for the time provided by law,” and that long prior to the letting of the contract several members had been duly advised by the auditor of state that he would not register the bonds and that the election was void because the notice had not been published for the time provided by law; that all of these facts “said board of county commissioners and the several members thereof knew at the time it made the verbal representations to plaintiff hereinbefore set forth”; and that the appellant, without any knowledge; or information of the facts, or of any defect or want of authority on the part of the board or the several members thereof, proceeded with the contract, “believing the recitals of the journals of its (board) proceedings to be true, and relying thereon.” It is further alleged that except for the representations, acts and conduct of the appellees and the recitals of the journals in their proceedings, appellant would not have incurred any of the costs or damages, and therefore it asks damages against the individuals.
The individual members, acting as a board, were required to give notice by publication for the calling of the election. The board failed to give the proper notice and the election was void, but the duty it owed in this respect was not to the appellant; it was to the public alone. Neither the board nor the individual members owed any duty whatever to a prospective bidder for the work contemplated in the event the taxpayers authorized the letting of the contract. The appellant cites the following text from 29 Cyc. 1442 :
“In the case of duties not owed solely to the public, officers are liable for misfeasance, malfeasance, or nonfeasance in the performance of a ministerial duty where such misfeasance, malfeasance or nonfeasance results in damage to an individual to whom a duty is owing.”
The principle does not apply to the present case, for two reasons: First, because the alleged damages resulted to an individual or corporation to whom neither the board nor the individual members owed any duty; second, in the same paragraph from which appellant takes the above excerpt, it is said:
“A public officer, who is a member of a corporate body upon which a duty rests, cannot be held liable for the neglect of duty of that body. If there be refusal to exercise the power of such body, it is the refusal of the body, and not of the individuals composing it.” (29 Cyc. 1443.)
This portion of the text is taken from the syllabus in Monnier v. Godbold, 116 La. 165, reported with notes in 5 L. R. A., n. s., 463.
Appellant cites other cases in support of the doctrine that—
“Where a duty is imposed on an officer by statute . . . an individual to whom the duty -is owing and who is injured by its negligent nonperformance has a right of action against the officer.” (Italics ours.) (Smith v. Zimmer et al., 45 Mont. 282, 125 Pac. 420, syl. ¶ 6.)
As already observed, the duty which the county board failed to perform was one not owing by it to any individual. The ap pellant had no more interest in the performance of that duty at the time it should have been performed than any other individual, citizen, or corporation.
The cases upon which the appellant is forced to rely relate to some office requiring the performance of duties which specially concern individuals, and only indirectly concern the public. An instance is Hupe v. Sommer, 88 Kan. 561, 129 Pac. 136, where a township trustee who had contracted for the building of a drainage ditch and whose duty it was as soon as the work was finished to his satisfaction to certify the amount due the contractor to the county clerk, who would draw an order for its payment out of the county treasury, arbitrarily refused to certify the amount. It was held that the contractor to whom he owed the duty could maintain an action against him to recover the loss occasioned by his failure to perform. It was a ministerial duty which the defendant could have been compelled by mandamus to perform. It specially concerned the plaintiff, and only indirectly concerned the public.
Another familiar instance is where the register of deeds neglects properly to record an instrument, which chiefly concerns the parties thereto. He is liable to an individual who sustains damages by reason of the failure to perform the duty, such as in the case cited by the appellant, Rising and Isaacs v. Dickinson, 18 N. D. 478, reported with notes in 23 L. R. A., n. s., 127.
In 2 Cooley on Torts, 3d ed., *446, it is said:
“Now, no man can have any ground for a private action until some duty owing to him has been neglected; and if the officer owed him. no duty, no foundation can exist upon which to support his action. . . . The rule of official responsibility, then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. ‘The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its nonperformance.’ ”
(See, also, Throop on Public Officers, § 708.)
The averment in the petition that the individual members of the board knew and concealed from appellant the fact that the state auditor refused to register the bonds and had expressed the opinion that the election was void, did not show that the election was void. In declining to register bonds on the ground that some provision of the law has not been followed, the state auditor acts upon his own judgment or the opinion of the attorney-general. Sometimes he is right, and sometimes he is wrong. Conceding, for the purposes of the argument, that if the appellant had known of the auditor’s action, it would have declined to make a bid or to enter into a contract with the county, the petition shows that all the facts in respect to the proceedings were matters of record, and it was the appellant’s duty to know before entering into a contract with the board whether the board had power to act. Ordinarily, before an issue of the bonds of a county or municipal corporation can be negotiated, the record of the proceedings leading up to the issuance of the bonds must be carefully examined by the proposed purchaser, or an attorney in his behalf. The appellant was just as much interested in ascertaining whether the. proceedings authorizing the board to act were in compliance with the law as if he intended to become a purchaser of the bonds in payment for the work. The duty devolved upon the appellant to take notice of the statutory limitations upon the powers of the board, and his failure to make the proper inquiry prevents his recovery, not only from the county, but from the individual members of the board as well.
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Johanna Adams pleaded guilty to charges of having unlawful possession of intoxicating liquor and of maintaining a common nuisance, and received an indeterminate sentence to the state industrial farm for women. She appeals on the ground that the statute authorizing such sentence (Laws 1917, ch. 298, § 5) is unconstitutional because it makes an unwarrantable discrimination between men and women, in that for the same offense (1) the period of commitment of the former is definite and the latter indefinite, and (2) “men are permitted to be fined while women are not.” The first contention is fully disposed of in In re Dunkerton, 104 Kan. 481, 179 Pac. 347, and The State v. Heitman, 105 Kan. 139, 181 Pac. 630. The defendant is in no position to raise the question supposed to be involved in the second contention, because the fine referred to is required to be imposed in addition to the imprisonment, and not as an alternative, and therefore the discrimination, if any,, would be against the men, and not the women. However, women as well as men are subject to the fine (The State v. Dunkerton, 103 Kan. 748, 175 Pac. 981), and it was assessed in this case, so there is no room for a claim of discrimination in this regard. ^
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
On September 2, 1911, Charles Miles and Anna Miles executed to a bank a note and real-estate mortgage for $2,250, due in two years. Shortly afterwards they conveyed, the land to a grantee who assumed the payment of the note and mortgage and later conveyed to J. A. Hamilton, who made a like assumption. Charles Miles and Anna Miles purchased the note and mortgage from the bank at the face value and on September 2, 1918, brought an action thereon against Hamilton, setting out these facts. A demurrer to their petition was sustained on the ground that its allegations showed the statute of limitations to have run. An amended petition was filed on February 1, 1919, to which a demurrer was likewise sustained on the same ground. The plaintiffs appeal from the latter ruling.
1. A preliminary question is raised by a contention of the defendant that as the plaintiffs did not appeal from the order sustaining the demurrer to the original petition and the time for such an appeal has expired, that ruling has become final and amounts to an adjudication that the facts relied upon by the plaintiffs as preventing the running of the statute, which were in substance set out in the first petition as well as in the second, do not have that effect. Of course no judgment was rendered upon the sustaining of the first demurrer. When that ruling was announced it was proper practice for the plaintiffs to take leave to amend, even if the purpose were merely to amplify or clarify the allegations already made. Having elected to file an amended petition, they could not appeal from the order sustaining a demurrer to the original pleading, for that had been superseded. (Robertson v. Christenson, 90 Kan. 555, 135 Pac. 567.) Their omission to do so, therefore, cannot have the effect of converting the ruling into a final adjudication against them on the legal propositions involved.
2. The dates already given show that the action was begun just within the five-year period following the date named in the note for its payment. The mortgage, however, provided that if any interest should not be paid when due the whole of the debt, principal and interest, should immediately become due and payable. By the terms of the note a year’s interest matured September 2, 1912, but no payment of any kind was made until June 21, 1913, when $1,000 was paid to the plaintiffs, being applied to the first year’s interest and a part payment on the principal.
By. the language of the acceleration clause referred to the default in the interest payment of its own force, without any declaration, notice, or exercise of an option on the part of the creditor, matured the entire debt, and started the running of the statute of limitations. (National Bank v. Peck, 8 Kan. 660; Snyder v. Miller, 71 Kan. 410, 80 Pac. 970; 17 R. C. L. 771.)
In the amended petition an allegation that the $1,000 payment was accepted by the plaintiffs in payment of the first year’s interest and as a prepayment of part of the principal, is followed by the recital: “all defaults by the mutual consent of all parties herein and thereto being waived.” Doubtless the pleader intended by these expressions to give his conception of the legal effect of the payment and its application, since no other concrete fact is stated. No waiver of any kind could result merely from the acceptance of a part of an overdue indebtedness. And even if the allegations could by great liberality of interpretation be regarded as amounting to a statement that an extension of the time of payment to the date of the original maturity had been expressly agreed to, an agreement to that- effect would not be binding on the creditor because not supported by any legal consideration (8 C. J. 435-436), and if it did not bind him it could not impair the debtor’s privilege of relying upon the statute of limitations. When the indebtedness matured by the default in the interest payment, it became due for all purposes. The debtor owed the creditors the duty of paying the entire amount at once, and the partial performance of this obligation by the immediate payment of a part of the debt could not make enforceable a promise of forbearance, and as such a promise could not prevent the bringing of an action, it could not interfere with the running of the statute.
3. The plaintiffs contend that a written acknowledgment sufficient to make a new starting point for the statute resulted from the fact that in response to a letter from the plaintiffs to the defendant stating that the balance of the note and mortgage for $2,250 which he had assumed and agreed to pay, and on which he had already paid $1,000, was past due and that they wanted him to pay it, he sent an answer on April 19, 1914, reading as follows:
“Your letter received and am very much disgusted with the ones who are owing' me. I am doing all I know to do to get some of the money as soon as possible but with no success so far. It seems almost impossible to get money as close as everyone is here this year. I am working a deal now to try and get part of the place in trade so I can arrange to get part or all of your amount. I am very sorry to have had to put this off on depending on what I had due me and expected to get long ago; however, I am going to make some kind of sale or deal on that place if it does lose me considerable, so I can meet your mortgage without much longer delay, hoping to do so before this may cause you more annoyance.”
The established test of the sufficiency of a written acknowledgment to affect the running of the statute is that it “must be an unqualified and direct admission of a present subsisting debt on which the party is liable.” (Haythorn v. Cooper, 65 Kan. 338, syl. ¶ 2, 69 Pac. 333.) A comparison of the phraseology of the writing just quoted with that of others to which this test has been applied would hardly be profitable, inasmuch as in each instance the language used is sufficiently unlike that employed in other cases to present a problem peculiar to itself. The court does not regard the defendant’s letter as capable of being construed as a direct admission of his liability on the indebtedness secured by the mortgage, even if he had been the maker of the note. But here the solution of the question is aided by the fact that the defendant’s obligation arises from the assumption of the debt inserted in the deeds through which he acquired title. His letter may readily be said to indicate an intention on his part to pay off the mortgage. It is also entirely consistent with the existence of a legal obligation on his part to do so, and with his knowledge thereof. But it is equally consistent with the absence of any such personal obligation, or with his ignorance thereof, if it existed. If there had been no assumption of the mortgage debt in the deed to the defendant, or none in the deed to his grantor, or if he had supposed that the effect of these assumptions was merely to keep the mortgage in force as a lien against the property, he might still, by reason solely of his desire to save the land by paying off the mortgage which the former owners had placed upon it, have written every line of the letter in the utmost good faith, without the least thought of any obligation on his part to make the payment, and without indicating any recognition of a personal liability. There is nothing in the letter which acknowledges that the defendant owed any duty to the plaintiff — nothing indicating any intention on his part to pay off the indebtedness which could not be fully accounted for by a desire to save the mortgaged property.
The judgment is affirmed. •
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by C. S. Hager against the defendants to recover $8,450 as damages alleged to have been sustained by reason of the invalid appointment of a receiver, who took possession of plaintiff’s property. It appears that a receiver was appointed by the probate judge in a foreclosure proceeding begun on September 17, 1917, and a judgment by default was rendered by the district court on February 5, 1918, for $13,178.10, in which a mortgage was foreclosed and a sale of the property ordered. The mortgaged property was sold on March 23, 1918, from which there has been no redemption.
In that case no attack upon the order appointing a receiver was made, but the present action was brought and some evidence was taken as to the manner of the appointment of the receiver. There is testimony to the effect that the probate judge, sometime after the appointment, attempted to discharge the receiver, but it is conceded that when the appointment was made the full measure of the probate judge’s power had been exercised, and that he was without authority to entertain a motion to discharge the receiver. The only objection to the validity of the appointment is that it was not shown by the record of the appointment, including the application and the order, that the justices of the supreme court were absent from the county when the appointment was made by the probate judge. The order made recites the absence of the judge of the district court, but no mention was made as to the presence in, or absence from, the county of the justices of the supreme court. The code provides that:
“A receiver may be appointed by the supreme court, the district court, or any judge of either, or in the absence of said judges from the county, by the probate judge.” (Civ. Code, § 266, Gen. Stat. 1915, § 7164.)
No evidence was offered as to the presence in the county of the justices of the supreme court. It is unnecessary to consider in this appeal in what cases the supreme court or the justices thereof have jurisdiction to appoint a receiver, or whether a justice of the court could have appointed a receiver in this case if he had been in the county when the application was made. This being a collateral attack, it is enough that the record shows a finding by the probate judge, upon the evidence presented to him, that plaintiff was entitled to 'have a receiver appointed, and that an appointment was made. It is conceded that it was a proper case for the appointment of a receiver upon a sufficient showing; and shall it be presumed that a showing was made, or must the jurisdictional facts be recited in the record of the appointment? The statute does not prescribe what the record of an appointment by the probate judge shall contain, nor is there anything which implies that the jurisdictional facts shall be made a part of his order. A probate court is a court of general jurisdiction as to matters pertaining to the settlement of estates of deceased persons, and its finding and determination in these matters is as conclusive and binding as are those of the district court. In the absence of statutory authority, the conclusive presumption of verity does not attach to determination of the probate judge exercising special authority outside of the general jurisdiction mentioned. In such cases it is ordinarily considered that the record should affirmatively show that the court had jurisdiction. The appointment of a receiver falls within this special and limited authority. The legislature, however, has provided that presumptions obtain as to the determinations of courts and officers of limited and special jurisdiction within the state. It reads:
“In pleading a judgment, or other determination of a court or officer of special jurisdiction, it shall be sufficient to state that such judgment or determination was duly given or made; and the jurisdiction of any such court or officer shall be presumed until the contrary appears.” (Civ. Code, § 123, Gen. Stat. 1915, § 7015).
In Kronberg v. Elder, 18 Kan. 150, it was ruled that this provision did not apply to the courts of foreign states, but that it was applicable to courts and officers of this state, and it therefore follows that the probate judge must be presumed to have acted within his jurisdiction in appointing a receiver, until the contrary appears. This is not only a rule of pleading, but the same principle applies after the issues are joined and until the evidence overthrowing the presumption is produced. It is competent for the legislature to change the general rule and provide that the records of inferior tribunals need not show affirmatively the jurisdictional facts but that it will be presumed that all the facts necessary to give jurisdiction have been duly found. (Rutter v. Sullivan, 25 W. Va. 427.) A ruling in conformity with the statutory rule was enunciated in the late case of Gehlenberg v. Saline County, 100 Kan. 487, 165 Pac. 286, in giving effect to the determination of a board of county commissioners. There it was contended that an order of the board establishing a highway was void because the record failed to show that proper notice was given to an owner of land to be appropriated as a part of the highway. In a collateral attack on the order of the board, it was held that:
“The general rule that silence of the record of a tribunal of inferior jurisdiction on a jurisdictional point is fatal applies in cases of collateral attack to those jurisdictional facts only which the law directs the tribunal to enter upon its record.” (Syl. ¶ 1.)
It is contended that this declaration is too broad and should have been confined to the decision of boards of county commissioners in road cases, but no reason is seen why it is not applicable to decisions of officers and inferior tribunals in any case where the statute has not prescribed what jurisdictional facts shall be entered of record, or where all that the statute requires has been preserved in the record. The ruling is supported by Willis v. Sproule, 13 Kan. 257, and the other cases cited in the opinion.
In view of the statute and the rulings mentioned, it must be held that a record finding that the plaintiff was entitled to have a receiver appointed, and that thereupon one was appointed, there being nothing contradictory of the finding in the record itself, is presumptive proof as against a collateral attack that all the essential facts supporting jurisdiction existed and were shown to the probate judge.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Porter, J.:
This case originated in the justice court and was appealed to the district court, where a demurrer to the plaintiff’s bill of particulars was sustained, and he brings the case here for review.
The bill of particulars alleged that the plaintiff commenced an action in the justice coúrt against Adam A. Pfeifer and Anton A. Pfeifer upon certain promissory notes and recovered a judgment against them for $122.57; that in that action he caused a summons in garnishment to be issued against the defendant as shown by a copy attached to the bill of particulars ; that it was duly served on defendant who, in obedience thereto, appeared in court and filed his answer under oath; and that upon his examination the court found that he was indebted to Adam A. Pfeifer and had money in his hands and under his control and rendered judgment against him, a copy of which was set out in full. The judgment recites the appearance of the garnishee in person and by his attorney and his examination by the plaintiff, and the finding by the court that he was indebted to one of the defendants in the sum of $122.57; that he had assumed and promised to pay all of the indebtedness of Adam A. Pfeifer, as consideration for the purchase of certain lands, and particularly the indebtedness owing to the plaintiff. The judgment recites the order that he pay the money into court. The bill of particulars alleged that in pursuance of the judgment, an order was issued requiring him to pay the money so found in his possession into court, and a copy of the order was attached to the bill of particulars. It was alleged that the defendant refused and still refuses to pay the amount into court and that the plaintiff’s judgment remains uhpaid. Judgment was asked against the defendant for the amount of the judgment.
The justice code (Gen. Stat. 1915, § 7738) provides that, the plaintiff may proceed against the garnishee by an action for failure to appear and answer, make satisfactory disclosure, or comply with an order to deliver the property, etc., or give the undertaking provided in the preceding section. The language of the statute is that—
“The plaintiff may proceed against him in an action in his own name as in other cases; and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff for the amount of the property and credits of every kind of the defendant in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for the costs of the proceedings against the garnishee.”
In Lamb v. Taylor, 101 Kan. 642, 168 Pac. 673, it was said in the opinion:
“But where a separate action is brought to enforce an order against the garnishee made by the justice of the peace, the proceeding is an independent one, governed by the ordinary rules of pleading, and the defendant is no more concluded by the documents filed in the justice court than by the order there made against him.” (p. 644.)
The opinion cites the case of Fitch v. Fire Insurance Co., 23 Kan. 366, to the effect that the garnishment proceedings do not constitute an adjudication. As we construe the statute, it means an independent action in every respect. It is an action as in other cases, and proceedings may be had as in other actions; “The proceeding is an independent one governed by the ordinary rules of pleading.” (Lamb v. Taylor, supra.) Doubtless, it is good pleading to set up the facts showing that the plaintiff brings himself within the provisions of the statute (Gen. Stat. 1915, § 7738), but it is necessary for him to allege that the defendant was indebted to the defendant in the original action, or had money, property or effects in his possession or under his control at the time the garnishee summons was served upon him, because he can recover only “what shall appear to be owing by” the garnishee to the.original defend ant as of the time when the garnishee summons was served. The judgment he is entitled to in an action like the present is not controlled ■ in any respect by the finding of the justice in the original action.
It is evident that the plaintiff proceeded upon the theory that he could recover by merely showing that defendant was properly brought into court as garnishee and examined under oath and that the justice made a finding that he was indebted to the defendant and ordered him to pay the money into court, which he refused to do, and that plaintiff’s judgment remains unpaid. But the statute contemplates an action “as in other cases” and that “such proceedings may be had as in other actions.” The only decision we have found in which a case like the present was even tentatively passed upon is Linder v. Murdy, 37 Kan. 152, 14 Pac. 447. That was a commissioner's opinion, in which it was said:
“The plaintiff’s bill of particulárs in this action shows substantially the following: First, the action between plaintiff and Shields; the affidavit and summons in garnishment; the answer of said garnishee, and upon said answer the order of the justice, directing him to pay into court the amount the justice found due; second, the refusal of the defendant to comply with the order; the nature and character of the indebtedness between the defendant and Shields and Shields, and the prayer for judgment. This made an issue upon the entire garnishment proceedings, and to maintain the issue on the part of the plaintiff it would only be necessary for him to show such ansiuer and order; but the defendant would not be concluded from showing that the answer was made under a misapprehension of the facts, or that the answer had not been correctly made; but he might show in addition thereto whether he was indebted to Shields, 'and if so, when that indebtedness was due; and whether conditional or absolute, and the entire transaction between himself and Shields.” (p. 154.) (Italics ours.)
A judgment against the garnishee was reversed because of the exclusion of evidence showing that the transaction between himself and the original defendant was a conditional one and that he was not in fact indebted to him at the time the garnishee summons was served. The sufficiency of the bill of particulars was not questioned, and besides, it will be observed that it contained a statement of the nature and character of the indebtedness between the defendant garnishee and the original, defendant. That part of the opinion we have italicized, to the effect that the averments made an issue upon the entire garnishment proceedings and that the plaintiff could maintain the issue by merely showing the answer of the garnishee and the order of the court, was not directly involved in the decision and must be regarded as dictum.
In the case at bar it would have been better for the plaintiff to have accepted the offer of the trial court to permit him to amend the bill of particulars; but plaintiff declined the offer and elected to stand upon the pleading. In his brief, it is insisted that all of the essential facts necessary to be alleged in a petition in the district court, where the pleading would be subject to the strict rules of pleading, and more than is required in a bill of particulars in justice court, are stated. This presents squarely the question whether the pleading is sufficient. We think it is insufficient, and the judgment will be affirmed.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action in ejectment by the grantee of a tax-title holder against the holder of the fee title.
The dispute involved a quarter section of Haskell county land, to which the plaintiff’s grantor received a tax deed from the county clerk in 1902. The defendant deraigned title in fee by quitclaim conveyance from the patentee of the United States.
In 1902, when plaintiff’s grantor acquired the tax title, the land was unoccupied and unimproved — simply a part of the virgin prairies of Haskell county. From 1902 to 1909, plaintiff’s grantor pastured cattle on the land. There was some testimony also (which the trial court may have disbelieved) that the tax-title holder had mowed some grass on it. His cattle and the horses and cattle of other settlers grazed on the land in dispute and upon other unoccupied lands in that locality. Plaintiff’s grantor made no attempt to exclude the cattle of his neighbors from this land. Plaintiff’s witnesses testified that his grantor had exclusive possession of the land from 1902 to 1909; but the testimony as to the pasturing (and mowing, if any,) and the payment of taxes, are the sum total of the evidence tending to show the exercise or enjoyment of exclusive possession of the property by plaintiff’s grantor. Shortly after plaintiff obtained the quitclaim deed from the holder of the tax title, the defendant obtained the fee title, and thereafter, in 1911, he caused some plowing to be done on the land and •sowed wheat on it. In time fifty acres were thus farmed, and if this exclusive exercise of dominion over the property is, in effect, possession, the defendant has been in possession since 1911. This does not seem to be denied.
From 1902 to 1909, inclusive, the plaintiff’s grantor paid the taxes; thereafter they were paid by defendant.
It does not appear that plaintiff ever questioned defendant’s acts of ownership or dominion until this action was begun, in 1917, although he did offer to pay the taxes as they matured. The defendant' was always too forehanded for him on that matter.
The trial court gave judgment declaring plaintiff’s tax deed to be invalid for irregularities which we are not asked to review. Ownership and right to retain possession were decreed to defendant; possession was denied to plaintiff, but he was given a lien on the land for taxes paid by his grantor.
Plaintiff appeals.
The main question is whether the plaintiff’s grantor acquired possession of the land within two years after he procured the tax deed. (Civ. Code, § 15, subdiv. 3.) It was not necessary for him to bring an action for possession. Since the land was unoccupied, he might have taken peaceable possession of it. But merely constructive ownership of undeveloped prairie land would not charge the fee-title holder with notice of any adverse claim of right in a tax-title holder. The grazing of cattle on the land would not charge the fee holder with notice of a claim of exclusive possession, or right of possession, during that early stage of Haskell county settlement. (2 C. J. 67.) At that time, ordinarily, cattle and horses pastured over all unfenced and uncultivated lands. The only care then given to live stock was to turn them from occasional patches of growing crops, to corral them at night, and to provide them with water. Nor would the cutting of a little prairie grass for hay, if that was done, charge the owner with notice of an adverse claim of right or possession. Early settlers in that prairie country were accustomed to cut grass on unoccupied lands wherever it was available, without complaint from the owners, but also without pretense of right by those exercising that privilege. But to effect a lawful possession, it was not necessary for the holder of the tax title to fence it, nor to plow it, nor to placard it. It was necessary, however, for him to do something tangible, something substantial, to clearly indicate the exercise of an exclusive possessory dominion over the land.
In Dickinson v. Bales, 59 Kan. 224, 52 Pac. 447, it was said:
“To constitute adverse possession of land, it is not absolutely necessary that there should be inclosure, buildings, or cultivation, but the acts done must be such as to give unequivocal notice of the claim to the land, adverse to the claims of all others, and must be of such a character and so openly done that the real owner will be presumed to know that a possession adverse to his title has been taken.” (Syl. ¶ 1.)
(See, also, Haas v. Wilson, 97 Kan. 176, 154 Pac. 1018; Finn v. Alexander, 102 Kan. 607, 171 Pac. 602.)
So long as this land lay open, wild and unoccupied, the constructive possession of it attached to the owner of the fee. (Whiteman v. Cornwell, 100 Kan. 234, 236, 164 Pac. 280.)
“We are entirely satisfied that a conveyance of wild or vacant lands gives a constructive seizin thereof, indeed, to the grantee, and attaches to him all the legal remedies incident to the estate. A fortiori, this principle applies to a patent; since at the common law, it imports a livery in law.” (Story, J., in Green v. Liter and others, 8 Cranch [U. S.] 229, 248, 3 L. ed. 545, 552.)
If a tax deed to such wild land is valid, the constructive possession of it passes to the grantee of such deed by operation of law. (Myers v. Coonradt, 28 Kan. 211, 215.)
If a tract of wild land is so situated that the holder of a tax title can peaceably enter and take possession thereof without judicial aid, he may do so; and while the acts constituting entry and retention of exclusive possession are left to his own initiative, they must be so notorious, so obvious, that there can be no equivocation as to their character; they must be such as would disclose notice to a prudent owner of the fee that rights of adverse possession were being exercised against him. And if the tax-title holder cannot otherwise secure peaceable possession, he must commence judicial pro ceedings to secure it within two years. In Thornburgh v. Cole, 27 Kan. 490, 497, it was said:
“The two-years statute of limitation mentioned in said subdivision [Subdiv. 3, §16, Art. 3 of the Code; now Civ. Code, §15, subdiv. 3] applies to a party out of possession and seeking to recover upon the strength of a tax title. Such a party must bring his action for the recovery of the real property sold for taxes within two years after the date of the recording of the tax deed.”
If the land remains vacant and unoccupied after the tax deed is issued and recorded,' and thereafter the owner of the fee enters and takes possession, the tax-title holder must commence proceedings to secure possession within two years from the-time the fee holder takes possession. (Case v. Frazier, 30 Kan. 343, 2 Pac. 519; Coale v. Campbell, 58 Kan. 480, 49 Pac. 604; Andrew v. Reid, 91 Kan. 135, 136 Pac. 793.)
The court has reexamined Guinn v. Spillman, 52 Kan. 496, 35 Pac. 13, and the other cases cited by appellant which turned upon the sufficiency of the evidence to prove exclusive possession by tax-title holders through their acts of dominion and control over the properties involved. In those cases, all that this court had to do was to decide that the evidence of acts of ownership and dominion were sufficient to justify the judgment of the trial court. Here the trial court held that, the very slight evidence which plaintiff was able to adduce was insufficient to establish the fact of exclusive possession by his grantor. Once again we must apply the usual rule that the judgment on the facts as found by the trial court will not be disturbed on appeal, unless all the competent and creditable evidence constrains a different conclusion. Since upon the evidence, the trial court found that plaintiff’s grantor did not exercise such exclusive dominion over the land as to charge the fee-title holder with notice of a claim of adverse possession prior to the entry and assumption of possession by the latter in 1911, nor within two years after the recording of the tax deed, and since the holder of the tax title did not commence proceedings within two years after entry and possession by the holder of the fee, the tax-title holder was properly barred of his right of action to recover possession.
It does not appear that section 11456 of the General Statutes of 1915, which authorizes an action by a fee-title holder to recover land sold for taxes, or to defeat or avoid a sale or conveyance of land for taxes, to be brought within five years and not thereafter, is involved in this case. The holder of the tax title brought this action, not the owner of the fee. And the fact that plaintiff’s tax deed had been recorded over five years did not render it immune from impeachment for irregularities by way of defense when it was the foundation to plaintiff’s claim to affirmative relief. (Walker v. Boh, 32 Kan. 354, 4 Pac. 272; Stump v. Burnett, 67 Kan. 589, 73 Pac. 894; Nicholson v. Hale, 73 Kan. 599, 601, 85 Pac. 592; Muckenthaler v. Noller, 104 Kan. 551, 557, 180 Pac. 453.)
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
T. J. Beall brought replevin against James Spear, Mattie Spear, and Phil Wah-Wa-Sic, all the defendants beings Indians, basing his claim upon two chattel mortgages. The trial court held that as a matter of law the plaintiff was entitled to the possession of the property, submitting to the jury only the question of the value of his interest, and that merely as a matter of computation. Judgment was rendered accordingly, fixing the amount of the plaintiff’s lien at $288.36, and the defendants appeal.
1. Although, other items wtere included in the mortgages, the only controversy is with regard to á quantity of oats. One mortgage was executed by all the defendants, on February 17, 1917, securing a note for $350, given by James and Mattie Spear, who are husband and wife, and covering the oats to be raised that year on land of Phil Wah-Wa-Sic, which he had leased to James Spear for half the crop. The validity of this mortgage is attacked by the defendants Spear and Spear, on the ground that at the time of its execution the property referred to had no existence, the crop not having been sow!n until April 15. The mortgage, because of having been executed prematurely, would have afforded the plaintiff no protection against the claim of a subsequent purchaser or an attaching creditor (Holt v. Lucas, 77 Kan. 710, 96 Pac. 30), but as between the parties it was a valid contract, and when the crop was sown a lien at once attached so far as concerned their relations with each other. (Cameron, Hull & Co. v. Marvin, 26 Kan. 612; 11 C. J. 434-438, 440-441; 5 R. C. L. 407.)
2. The other mortgage, which also covered the oats, was executed April 21, 1917, and was signed by James Spear and Phil Wah-Wa-Sic. The Spears contend that it was invalid because the oats were exempt and Mrs. Spear did not sign it. There was evidence tending to sustain the claim of exemption, and therefore the court seems not to have been authorized to direct a verdict for the plaintiff so far as his rights were dependent upon the second mortgage. Under the original mortgage he had the right to take the property and to look to it for the amount of the debt it was given to secure. The later mortgage, however, secured an additional note for $50 (on which payments of a little over $25 were afterward made), and apparently the balance due on this note entered into the amount of the plaintiff’s lien as determined by the court. In the absence of a finding by the jury that the oats were not exempt, there seems to have been no proper basis for including this sum of about $25 in the lien allowed, as against the defendants Spear and Spear.
In the plaintiff’s brief a suggestion is made that the defendants orally agreed to give a new mortgage, but if there was evidence of such an agreement by Mrs. Spear (and we discover none in the abstract), it cannot be regarded as conclusively establishing the fact, even if not specifically denied.
3. All the defendants object to the judgment on the ground that the petition did not allege a demand, and in behalf of Wah-Wa-Sic the further objection is made that there was no proof of a demand having been made upon him. Spear and Spear denied the plaintiff’s right to the property, and therefore as to them the absence of reference to a demand either in the pleadings or the evidence was of no consequence. (Raper v. Harrison, 37 Kan. 243, 15 Pac. 219.) Wah-Wa-Sic testified that he was willing the plaintiff should have his share of the oats to apply on the first mortgage, the implication perhaps being that he contested the validity of the second one. The question of demand could in any event affect only the question of costs, for of course the property would not be returned for want of it, and its omission can hardly be regarded as material here because the judgment for costs against Wah-Wa-Sic was warranted if he resisted the plaintiff’s claim under the second.mortgage, which was valid as to him. Moreover, it is obvious that the costs were not increased by any considerable amount by reason of his having been made a party; and in any event no question has been raised with regard to the taxation of costs.
4. A further objection in behalf of Wah-Wa-Sic is made on the assumption that a personal judgment was rendered against him for the amount due on both mortgages, while only the second one secured a debt owing by him. No personal judgment however was rendered against him except for costs, the sale of the oats having provided a fund for the payment of the indebtedness.
5. The final complaint is of the refusal of the trial court to appoint an interpreter to be used in taking the testimony of Mattie Spear. Mrs. Spear was called as a witness by the defendants’ attorney, who asked her to state her name. To this she made no answer. The judge then asked her if she were deaf. She made no answer to this question nor to another asked by the defendants’ attorney, who then requested the appointment of an interpreter. The request was refused, the judge saying that he had reliable information that the witness could speak and understand the English language. The statute authorizes the use of an interpreter “whenever necessary.” (Gen. Stat. 1915, § 7249.) No showing was made that such a situation had arisen. The mere fact that the witness did not answer the questions put to her did not establish that she did not understand them — it did not amount even to sworn testimony on the subject. Especially in view of the statement of the judge, it was incumbent upon the defendants, if they wished to complain of the ruling, to produce evidence that Mrs. Spear did not understand and speak English. Moreover, no suggestion is made of what testimony the witness could have given that would be material to the questions raised.
The judgment is modified by limiting the lien of the plaintiff against the property of Spear and Spear to the amount due on the $350 note. If he shall desire to insist upon a lien for the additional sum of about $25, his right thereto may be determined in a trial upon the question whether the oats were exempt.
As so modified, the judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
In an action upon a policy issued by the Penn Mutual Life Insurance Company to Arthur E. Pinkney, the company defended upon the ground that the insured in his lifetime had exercised an option to accept the surrender value. The district court having decided against this defense, the company did not appeal, but acquiesced in the judgment and paid into the court the amount due on the policy, for which there were several claimants. In virtue of the fact that the policy named as beneficiary Jennie E. Pinkney, the wife of the insured, who survived him about two years, her administratrix claims it. Helen P. Bacon, the daughter of the insured by a prior marriage, .claims a portion of it on the ground that in the application for the insurance, which was expressly made a part of the policy, she was named as a beneficiary in the event of the death of Mrs. Pinkney before payment had been completed. The administrator of the insured claims the whole amount on the ground that the beneficiary had been changed, so that the policy had become payable to Pinkney’s estate. The trial court held upon the evidence (which was all in writing) that no change of beneficiary had been made, sustained a demurrer to the pleading of Mrs. Bacon, and rendered judgment in favor of the administratrix of Mrs. Pinkney. Mrs. Bacon and the administrator of the insured each appeal.
1. The policy was issued January 26, 1912. It-permitted a change of beneficiary if made in writing and indorsed thereon by the company at its home office. On March 9, 1915, Pinkney presented to the company a writing declaring that he changed the beneficiary and made the policy payable to his estate, and purporting to release all claims under it in consideration of the payment of its surrender value to one of his creditors. The policy at that time had been lost, and therefore the corporation, as a condition to acting in accordance with the application, made the requirement that Pinkney should give an indemnity bond. On April 13, 1915, while negotiations with respect thereto were still pending, Pinkney died without the bond having been given.
Pinkney’s administrator contends that, notwithstanding the failure of the attempt to cash in the policy at its surrender value, the part of the writing declaring a change of beneficiary should be treated as an independent matter, and should be given effect because the insured had a right to make such a change, and had (in view of the loss of the policy) done all that he could to accomplish the purpose; and that only the company, and not the original beneficiary, could complain of the omission of any of the steps prescribed in the policy. Language is used in the syllabus of a Kansas case. (Titsworth v. Titsworth, 40 Kan. 571, 20 Pac. 213) apparently supporting the latter part of this contention, and in conflict with the weight of authority on the subject. (Note, 2 A. L. R. 1682.) That language, however, must be interpreted in view of the facts to which it was applied. There an insurance association during the lifetime of the insured had accepted and acted upon his application for a change of beneficiary, granted it, made the change, and issued a new certificate. On being sued by both claimants, the association paid the money into court for the benefit of whichever should prevail. In that situation it was held that the original beneficiary had no standing to attack the validity of the change on the ground that it had not. been made in accordance with the rules of the association. The decision would perhaps be in point here if the company, during Pinkney’s life, had unconditionally acquiesced in the change of beneficiaries, and had made the requirement for an indemnity bond solely with reference to the application for the payment of the surrender value. A part of the evidence tends to support that hypothesis, but on the whole récord it is seen to be untenable. The writing referred to (the application for a change of beneficiary and for a surrender of the policy) bore an approval by an assistant actuary dated March 17, 1915, but that officer testified that this simply indicated that the execution of the paper was correct and satisfactory. The signature of the second vice president also appears on the document, but there is nothing to show that it was not attached after Pinkney’s death. Moreover, the correspondence shows that the requirement of a bond was never withdrawn or satisfied, and was insisted upon after the date named., The assistant actuary testified that according to the company’s records the policy stood payable to the insured, and in case he wanted it payable to the original beneficiary additional papers would have been required to change it back. This, however, was a mere conclusion of the witness, expressed at a time when the company was trying to have effect given to the attempted surrender. In a letter written from the home office May 7, 1915, to the Chicago agency, it was said:
“In our opinion the change of beneficiary when the surrender for the cash value was executed under date of March 9th, 1915, whereby the policy became payable to the insured for the purpose of securing the cash value of $658.37 to Vail & Sons, is effective. If we are to question this transfer, however, then title for such an amount as you might settle for in order to avoid a lawsuit would vest in Jennie E. Pinkney, widow of the insured, so that in any event the estate would not have any claim to any portion of the proceeds of this policy.”
The assistant actuary also made this statement while on the stand: “Under date of March 9, 1915, our record shows the beneficiary was changed by the insured unto his estate as by power reserved.” This was literally true, but so worded as to be capable of conveying a wrong impression. The record to which reference was made-did indeed recite that the change of beneficiary (together‘with the surrender of the policy) was effected on March 9, 1915, but the entry itself was made, as its own terms showed, more than six months later. There is nothing in the record to bear out the idea that the company treated the application of the insured as embracing two distinct matters, and recognized the change of beneficiaries as accomplished, while demanding a bond before the surrender of the policy should be effective. The language of the letter just quoted indicates the contrary attitude. The requirement that an indemnity bond should be given appears to have applied to the matter of the change of beneficiary as well as to that of the surrender of the policy. The fact in that regard could probably have been set at rest if the form of the bond submitted by the company for execution had been shown, but the document itself was not .produced, nor was its absence accounted for, and no evidence of its contents was given. The burden of proof in this regard lay upon him who asserted, rather than upon him who denied, that a change of beneficiary had been effected.
Whatever else it was necessary for the insured to do, in view of the loss of the policy, to effect a change of beneficiary, it is clear that he must in some unambiguous way express to the company his desire therefor. The words relating to that matter were incorporated in the blank application for the surrender value by the use of a rubber stamp, and were: “I change the beneficiary of this policy and make it payable to my estate.” They purported to be self-executing, but must be interpreted in view of the fact that they were selected by the company, and their immediate purpose was to do away with the rights of the original beneficiary, so that her consent to-the surrender should not be necessary. They were conclusive-evidence that the insured desired a change of beneficiary if the-policy was to be surrendered and the proceeds paid to his creditor; but they did not prove, and indeed gave no fair reason to-believe, that he desired such change as a separate and distinct, matter — that if he had known that his effort to realize the: present value was to be defeated and the policy was to be continued in force, he would still have preferred to have the proceeds at his death paid to his administrator instead of to his widow. The fact that he applied at the same time and by one writing for two changes in the existing status, one being necessary if the other was to be effected, creates no presumption that he desired the first for its own sake.
2. The application for the insurance was made upon one of the company’s printed forms. The questions to be answered by the applicant were arranged in one column in groups, each group being designated by a figure, and each separate question by a letter. Blanks were left in a second column for the answers, which were sometimes printed in part. The question designated as 3 A. read: “Give the name and postoifice address of the person for whose benefit the insurance is proposed in the event of your death.” In the corresponding place in the second column was printed “A. ... if the said beneficiary outlives me, otherwise to my estate.” In the blank just indicated were written the words: “Jennie E. Pinkney, Kansas City, Mo.” At the foot of the applicant’s questionnaire, below his signature, two footnotes were written, the second reading: “*3A. After death of ben., remaining installments to my daughter, Helen Bacon, wife of Chas. M. Bacon, Chicago.” The policy began with the clause: “In Consideration of the Application for the Trust Certificate Policy, which is made a part hereof.” The beneficiary was thus designated: “Jennie E. Pinkney, his wife, if she survive him, otherwise to his executors, administrators or assigns.” The payments in the event of Pinkney’s death were to be made in quarterly installments of $187.50 each, extending over a period of twenty years, no beneficiary having power of commutation, although in case of the death of the person to whom the installments were payable, an option of commuting was given to the legal representatives of such person.
We regard the provision that the application is made a part of the policy as requiring the two writings to be treated as portions of a single contract, and any seeming inconsistency to be resolved by the aid of all the light shed upon the real intention of the parties by the consideration of everything found in either which is pertinent to the matter. If the policy stood alone — that is, if thé application were not made a part of it — there could be no doubt that the wife of the insured was the sole beneficiary, and that if she died after him, and before the full payment had been made, any remaining amount would go to her administratrix if she died intestate without having made a transfer. But to give this effect to the document as it stands would be to ignore the terms of the application, which provides, in as explicit language as could be employed, that in such a situation the remaining payments should be made to Mrs. Bacon, the daughter of the insured. There is no absolute and irreconcilable conflict between the two portions of the contract. Effect can be given to every provision of both. The policy, exclusive of the application, does not expressly say that installments accruing after the death of Mrs. Pinkney shall be payable to her administrator. She could personally have the benefit only of such installments as should mature during her lifetime. The added provision of the application making these subsequent installments payable to Mrs. Bacon does not contradict the other terms of the contract — it supplements them; it at most qualifies them. It gives a specific and express direction concerning a matter which otherwise would be controlled by general and implied provisions. If Pinkney’s widow had outlived him by twenty years she would have been entitled to all the proceeds of the policy, and there would have been no need to look beyond the broad language embodied in the first page of the contract. ' Her death within that period gave opportunity to apply the special proviso elsewhere found, framed to meet that contingency.
It is true, as contended by the appellee, that a duty rested on the insured, if he discovered that the policy given him did not comply with his application, to advise the company of the fact, if he did not choose to abide by the change. But with the application made a part of the contract it cannot be said that he was bound to look only to the face of the policy, or to act upon the theory that there was a conflict between it and the attached portion.
In the argument in support of the view which was taken by the trial court, that the administratrix of Mrs. Pinkney was entitled to the whole of the proceeds of the policy, much reliance is placed upon Burt, Appellant, v. Burt, 218 Pa. St. 198. There a similar policy was on its face made payable to the insured, his executors, administrators, or assigns. The' application, which was made a part of the policy, designated the beneficiary in these words: “Self if living, if not equally divide among my 2 nephews, 2 nieces, Flora Burt, John Burt, Jr., . . . children of John T. Burt.” (p. 200.) The insured died before the maturity of the policy, and the trial court held that the beneficiaries named in the application were entitled to its proceeds. The judgment was reversed on appeal, one justice out of five dissenting. That decision was rendered in 1907, and as the Penn Mutual Company is a Pennsylvania corporation, the suggestion is made that the interpretation .of the present policy is controlled by it. The construction of the contract does not involve the application of any local law, but the ascertainment of the real intention of the parties. Moreover, we do not regard the case as directly in point, because there an absolute conflict existed between the policy and the application, while here, as already stated, the seeming conflict can be reconciled by an interpretation to which the language used is open. It cites but one authority (Hunter v. Scott, 108 N. C. 213), which interpreted a policy of which the application was not made a part, and therefore could have but little bearing on the question involved. It seems to be based on the supposition, which we cannot regard as sound, that the sole purpose of referring to the application in the policy was to hold the insured to the warranty of the truthfulness of his answers, and to prevent any dispute as to the representations on faith of which the policy had been issued. It is annotated in 11 Ann. Cas. 708, and in our judgment is not sustained by the cases there collected. In several of them the application was not made a part of the policy; in others, where the contrary was true, a provision of the- policy was held to control in case of conflict, but the reason, or at all events a reason, given was that the contract was ambiguous and should be construed most strongly against the company,, the question involved being of a kind to make that rule applicable. (Moulor v. American Life Ins. Co., 111 U. S. 335; Harr v. Highland Nobles, 78 Neb. 175; Logan v. Assurance Society, 57 W. V. 384; Goodwin v. Assurance Association, 97 Ia. 226.) In still others, provisions of the application were allowed to prevail over those of the policy. Other cases of that character or tendency, not cited in the note, are Eckler v. Terry, 95 Mich. 123; and Harding v. Littlehale, 150 Mass. 100.
Moreover, the proceeds of the policy in the Burt case were not disposed of in the manner indicated in the decision referred to. The supreme court, as there shown, ordered judgment for the executrix of the insured, but this order was later set aside and a new trial was allowed. This resulted, as the first one had, in a judgment for the beneficiaries named in the application, which was affirmed on a second appeal. (Burt, Appellant, v. Burt, 221 Pa. St. 171.) The opinion speaks of a mistake in writing the policy, but the reference does not seem to be to a situation in which under the practice elsewhere reformation of a contract is granted on account of a mutual mistake, for the decision appears to be based on the peculiar Pennsylvania rule which in some circumstances allows convincing parol evidence to vary a written instrument. (4 Wig-more on Evidence, § 2431, p. 3429.) The final result of the litigation, in whatever terms expressed, gave effect to the real intention of the parties, as exhibited in the application, supplemented by oral evidence.
In Ogletree v. Hutchinson, 126 Ga. 454, the application was not in terms made a part of the policy. Even in this situation, it was held that the two writings should be construed together, and as no beneficiary was named in the policy, the person designated in the application was entitled to the. proceeds. It was said, however, that if there had been a conflict the policy would have controlled.
The appellee also contends that the application itself is ambiguous as to the beneficiary; that the marginal note is not a part of the application, and is inconsistent with it; and that in that situation the first provision should control, and the last be rejected. We think the application makes it entirely clear that Pinkney desired his daughter to receive the proceeds of the policy in case his wife should die before its payment was completed.
The judgment so far as it excludes Pinkney’s administrator from an interest in the proceeds of the policy is affirmed. The order sustaining a demurrer to the pleading of Mrs. Bacon is reversed, and the cause is remanded for further proceedings in accordance herewith.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from death by wrongful act. A demurrer to the plaintiff’s petition was overruled, and the defendant appeals.
The deceased left neither widow nor children, and the action was prosecuted by an administrator appointed by a probate court of this state. The cause of action arose in the state of Missouri, and the compensatory statute of that state was pleaded, which permits recovery for death by wrongful act by an executor or administrator when the deceased left neither widow nor children.
The demurrer should have been sustained, on the authority of Battese v. Railroad Co., 102 Kan. 468, 170 Pac. 811, which follows the decision in McCarthy, Adm’r, v. Railroad Co., 18 Kan. 46. Whatever might be said about it now, the legislature has suffered the doctrine of the McCarthy case to become stare decisis. It is contended, however, that the legislature has intervened, and has authorized actions of this character by an act passed in 1905, which, as amended in 1909, reads as follows :
“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.” (Civ. Code, §47, Gen. Stat. 1915, § 6937.)
In the case of Rochester v. Express Co., 87 Kan. 164, 123 Pac. 729, this section of the code was correctly interpreted as follows:
“The evident purpose of this statute, however, is to extend to litigants from another state the mere personal right to sue which is granted them by the sister state.” (p. 173.)
The judgment of the district court is reversed, and the cause is remanded with direction to sustain the demurrer.
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment in replevin involving a certain black horse, complaining that the court erred in permitting the introduction of a certain chattel mortgage, that the judgment and findings of the court are not sustained by the evidence and are contrary to law.
The amended petition alleged that about October 23, 1916, one F. P. Wilson, executed to the plaintiff a chattel mortgage to secure the payment of $262.69 on certain property including “one black horse, 3 years old” described as in Woodson county. It was alleged that this mortgage was filed for record in Woodson county, and that the plaintiff had a special ownership in “one black horse, 3 years old,” described in such mortgage as being the only horse of the kind owned by F. P. Wilson at the time of its execution and delivery, and that it was intended to cover the identical horse which afterwards came into the possession of the original defendant, W. F. Guy. To the amended petition the defendant, Morton, filed an amended answer denying generally the plaintiff’s allegations.
It is claimed that the description “one black horse, 3 years old” is void. Also, that the horse was never in Woodson county until Guy brought him there, and that the mortgage sued on was not recorded in the county in which the property was situated nor in which the mortgagor resided at the time. It seems that Guy had died, and the mortgagor, Wilson, was a fugitive from justice, and, therefore, the case had to be tried without their evidence.
The president of thé plaintiff bank testified that he had known F. P. Wilson a little over three years, and that he had not seen the horse until after a former mortgage was taken; that he went to Guy and told him that he had a mortgage on the F. P. Wilson horse. John Sowder testified that he was acquainted with Wilson and with a certain black horse he had, and which he formerly owned and sold to Wilson. Wilson owned no other gelding. The horse was two years old in the spring when Wilson got him in the fall. Witness sold the horse to Wilson in the fall of 1915, and Wilson put a mortgage on him to the Toronto State Bank and got the money with which he paid witness $125. W. S. Wilson testified that he was a brother of F. P. Wilson; and that he knew the black horse his brother owned, a smooth regular horse, seemed to be coal black. Witness met Guy in the road, who said he was going to get the horse he had bought from witness’ brother. The horse was kept in Greenwood county until Col. Guy bought it. Then it was kept in Woodson county. There was no other black horse on the places owned by him or his brother. George Guthrie testified that he knew the horse Guy got from Wilson and helped catch him. Guy said he got the horse from Frank [F. P.] Wilson. F. P. Wilson had no other horse. A. L. Cable testified that on June 23, 1916, F. P. Wilson made a mortgage to the bank covering one black horse, two years old, with a star in its face. This mortgage took up the one made to Mr. Sowder. The mortgage given October 23, 1916, was for a larger amount, covering all three horses. The cashier of the plaintiff bank swore that Wilson made the mortgage on the black horse now in controversy in Septem- • ber, 1915, he thought. Wilson then lived in Greenwood county. He made the first mortgage to pay the bank the money he paid to Sowder, who sold the horse to Wilson. Later he made another mortgage which was recorded in Greenwood county, and still later a third, which was recorded in Woodson county. The original answer contains the following:
“This defendant says that the' said W. F. Guy purchased the property in controversy of one F. P. Wilson, without any notice or knowledge whatever of any pretended claim or lien of said plaintiff hank to the same, and defendant specifically denies that the plaintiff bank had any valid or subsisting lien on the property in controversy at the time said W. F. Guy purchased the same.”
R. F. Morton, for the defendant, testified that in the fall of 1916 he went to the Wilson farm with Mr. Guy to get a black horse. He said, “We got horse just shed in for half past four years old,” and that this horse and the one last taken by the sheriff were as much alike as two peas. R. F. Morton, recalled, testified that all the black horses on Guy’s place, at the time these horses were taken, were coming five years old. None three years old at the time the sheriff took them.
“Soon after we got this horse from Wilson’s I learned the bank had a claim against it. I came over to Guy’s and he called my attention to it.”
The mortgage of October 23, 1916, was recorded in Wood-son county and Guy took the horse there from Greenwood county where he got it. W. S. Wilson testified that his brother worked and lived in Woodson county during the summer and fall of 1916, but all the time he was in Wood-son county the horse was kept by the witness in Greenwood county. The plaintiff’s cashier testified that he heard Wilson was in Woodson county and staying there, and he thought he had better have the mortgage recorded there. As the mortgagor then apparently resided in Woodson county, that was the place to record the mortgage. (Gen. Stat. 1915, § 6495. See, also, Bank v. Bond, 64 Kan. 346, 67 Pac. 818, holding under the circumstances either county was a proper place for recording the instrument.)
If, as testified, this was the only black horse owned by the mortgagor, the purchaser, having constructive notice of a mortgage on Wilson’s black horse, was required to ascertain whether or not he was purchasing encumbered property.
As Exhibit 1, a former chattel mortgage covering a certain black horse, was a part of the history of the course of dealing between the bank and Wilson, and especially as the trial was before the court without a jury, no material error arose from receiving this exhibit in evidence.
We have sent for the transcript and read all the evidence in the case and are forced to the conclusion that it sustains the conclusion reached by the trial court as to the identity of the horse in controversy. This disposes of the contention of the defendant.
The plaintiff asks in its brief that the appeal be dismissed because the dates of the judgment and the order denying the motion for a new trial were not correctly stated — or not stated at all — in the notice of appeal. The notice, however, was in time and shows an attempt to appeal from decisions adverse to the defendant, and as no motion to dismiss was ever filed, we will assume, as the plaintiff probably did, that the office boy who probably prepared the notice allowed a clerical error to creep in as to the dates. Only this, and nothing more.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus, to compel the national officers and national executive committee of the Security Benefit Association to restore the charter of Capital Council No. 1, a subordinate body of the association.
The plaintiffs are members of Capital Council No. 1, and are-holders of beneficiary certificates issued by the association. They claim their insurance is jeopardized by dissolution of the-subordinate council, which was effected by a decision of the-national executive committee, a tribunal having jurisdiction-. over the subject. It would not subserve any public or private interest to make a record in the Kansas reports of the details of the quarrel between the plaintiffs and the national organization. It is sufficient to say the plaintiffs had a remedy under the laws of the association which they did not invoke.
The constitution of the association provides that the national council, which is the supreme body, “shall hear and decide all appeals, redress all grievances, . . .” The laws of the association provide that a dissolved-subordinate council may be reinstated at a regular or special session of the national council. On reinstatement all property and effects of the subordinate council are restored to it. Sections 19 and 180 of the laws of the. association read as follows:
“Sec. 19. The National'President May Order Trial of a Subordinate Council or Any of Its Members. The national president, upon receiving charges or accusations filed against a subordinate council or any member thereof, shall, if he deem the charges or accusations preferred sufficient to justify investigation, refer the same to the national executive committee. The national executive committee shall thereupon give notice to the council or the member, as the case may be, and arrange to have the council or the member brought to trial before said committee, at a time and place to be fixed in the notice to the council or the member, and it shall have the power to suspend or dissolve-the council, if in the judgment of the national executive committee such punishment should be inflicted, and it shall have the power to expel or otherwise punish such member, if found guilty. Where a council or any of its members is tried before the national executive committee, the method of procedure shall be, as near as may be, as provided in section 176.
“Sec. 180. Appeals Allowed. Any member of the order may appeal to the national executive committee from the decision of the subordinate council upon any trial had, and to the national council from the decision of the national executive committee or national trustees, where trial is had before such committee or trustees.”
There is no specific provision for an appeal by a subordinate council from a decision to dissolve it, rendered by the national executive committee.
The pláintiffs contend for a harsh and illiberal interpretation of their own laws, against themselves; The settled, universal rule is to the contrary. That interpretation must always be adopted which is most favorable to members, and particularly so whenever enjoyment of beneficiary rights is involved.
In this instance the charter of Capital Council No. 1 was taken away as a disciplinary measure. Dissolution of the coun cil set its members at large. They were protected in their insurance for a certain period, but each member was obliged to join some other council in order to keep his insurance. While admission to another council was'made easy, it was not guaranteed. Consequently, the members affected are as vitally interested, and are interested in substantially the same way, as if they had been disciplined personally. If the action of the national executive committee was wrong, the plaintiffs have been seriously aggrieved.
It may be assumed that section 180 does not give to a member an appeal from a decision which does not affect him in any way. The word “aggrieved” is implied after the first word of the section. So interpreted, the section permits members to protect their council from wrongful dissolution, by appeal. The procedure in case of appeal is as simple as possible. A notice is filed with the secretary of the national executive committee, stating that an appeal is prayed for, and referring to-the decision appealed from with reasonable certainty. The secretary of the committee then makes up the record and certifies it to the national president, or to the national council if in session. If the plaintiffs had followed this procedure, it would be the imperative duty of the national council to hear their appeal. Granting, however, that because section 180 is found in a portion of the code relating to trials of members, it relates to .such trials only, wrongful dissolution of a council by the national executive committee constitutes a grievance to every member of the council, which the constitution of the association commands the national council to redress.
The fact that no specific procedure is provided for invoking redress of grievance is not material. Jurisdiction, and the duty to exercise it, exist. In such cases, the body having jurisdiction may prescribe procedure, but if none has been prescribed, any mode which puts the tribunal in fair possession of the cause is sufficient. Appeals must be taken within thirty days from rendition of the decision complained of. This limitation does not apply to procedure to redress grievances. Of course, diligence in asking for redress of grievance must be exercised, but the circumstances of this case are such that, if the plaintiffs will present to the national council, which meets on June 8, 1920, a petition indicating their grievance, it will be the duty of that body to consider it as fully as if an appeal had been taken.
The plaintiffs say that the national executive committee was not a fair tribunal, that its decision was not rendered in good faith, and consequently that they were not required to take an appeal. Applying to the evidence the law as stated in the case of Burton v. Dickson, 104 Kan. 594, 180 Pac. 216, 775, the court finds to the contrary. Further discussion of the controversy would lead to expressions of opinion concerning subjects which should be considered by the national council, should application be made.
Temporary orders, made to preserve the. status of affairs pending final action of this court, are set aside, and the writ of mandamus is denied.
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The opinion of the court was delivered by
West, J.:
Counsel for the defendants naturally complain of our entertaining a second motion for rehearing and the necessity of reading volumes of literature added to the printed matter already presented in this case, but, although out of the ordinary, we have felt that we ought to examine with thoroughness and reconsider the points relied on by the plaintiff and covered by the order granting the rehearing.
Having again gone over the matters argued and reargued, presented and re-presented, we find no occasion to change anything in the former opinion and judgment, save in one respect. It is pressed upon our attention with unflagging reiteration that the plaintiff is entitled to possession of the homestead for the reason that the provisions of the antenuptial contract did not amount to an alienation thereof. Attention is once more called to Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537, and the significant language there used.
The constitution and statutes touching the alienation of the homestead are too familiar to need restatement. Certain strict rules have been followed in decisions covering the state’s history, only a few of which need be recalled. . When the relation of husband and wife exists, the separate deed of the former conveys no title, although the wife has not been a resident of the state and has been abandoned without cause, the existence of the relation of husband and wife being the basis of this rule. (Chambers v. Cox, 23 Kan. 393.) A deed to the homestead executed-by the husband alone did not ripen into a conveyance, the wife eight years later executing an independent quitclaim deed, the property no longer being occupied as a homestead, such second instrument not.supplying the necessary joint consent. (Ott v. Sprague, 27 Kan. 620.) A husband made a contract to convey a homestead occupied by himself and family, receiving a promissory note for $200 and a cash payment of $40, the wife’s consent to the contract never being obtained, and no deed ever being made. Suit was brought to recover upon the promissory note, and the defendant asked to recover back the $40 paid. The contract to convey was held void, the note held to have been given without consideration, and the $40 to have been a voluntary payment. (Thimes v. Stumpff, 33 Kan. 53, 5 Pac. 431.) A husband executed a mortgage on the homestead and signed, or procured someone to sign, his wife’s name and a notary to certify to its acknowledgment, and after six weeks the wife executed an instrument to ratify the mortgage, but it was held to be without effect, no joint consent being shown. It was also held that the object of the homestead law is to protect the family, and to divest the homestead estate there must be a literal compliance therewith.' (Howell, Jewett & Co. v. Mc-Crie, 36 Kan. 636, 14 Pac. 257.) A husband whose homestead was encumbered by a mortgage lien agreed with the mortgagee to execute another mortgage to discharge the first, so that the new one might become a first lien, the money derived from the second to be paid to the holder of the first, which was done and. the money received and paid to the creditor, whose mortgage was released. The wife had no knowledge of the agreement until after the new mortgage was executed and the former one released. She refused to execute a mortgage for the remainder due. The creditor brought an action to cancel the discharge and to foreclose the original mortgage. It was held that the court could not declare the latter a lien on the homestead, as such a lien could only be created by the written consent of the wife in the manner prescribed by law. In the opinion it was said:
“No matter how strong the appeal to the conscience of the chancellor, the organic law controls him. If the plaintiif in error had advanced Simmons the sum of four thousand dollars, under the promise of Simmons that a mortgage would be executed on the homestead to secure it, and his wife knew the facts, and, with the money in the possession of the husband, refused to join in the mortgage, no court in this state has power to declare that sum a lien on the homestead. The constitution forbids it. The wife’s consent to the creation of the lien is an absolute prerequisite to its validity. The strong arm of the law, and the believing hand of equity, are both powerless to take from the wife the hearthstone and the shade-trees of the homestead, except by her free and voluntary consent as prescribed in the fundamental law of the state of Kansas.” (Jenkins v. Simmons, 37 Kan. 496, 505, 15 Pac. 522.)
A husband sent his wife, who was away on a visit, a power of attorney which she executed giving him power to make contracts, sign deeds and mortgages and do all things requi site to such affairs as fully as she could do if present. The instrument was duly recorded in the county where the land was located, and some two and a half years after its execution, while it was still in force, the husband obtained a loan and executed a mortgage to secure its payment, which he signed for himself and his wife as attorney in fact. Upon foreclosure the wife claimed that she was not bound by the mortgage executed by her husband, because, she had not given her joint consent. The case came before the writer as trial judge, who thought and held that the unrevoked power of attorney was a continuing consent, and so thought the present chief justice who wrote the opinion reversing this rule, and also the dissenting opinion. (Wallace v. Insurance Co., 54 Kan. 442, 38 Pac. 489.) Chief Justice Horton and Mr. Justice Allen wrote separate opinions. The former in his separate opinion said:
“If the wife may delegate to her husband the power to act for her in the conveyance or alienation of the homestead, the power of attorney must expressly or by necessary implication confer the power to consent with him, or to act with his consent, in such conveyance or alienation. . . . Under all the circumstances I do not think that the power of attorney executed by the wife alone, in and of itself, was sufficient to give authority to the husband, or anyone else, to convey the homestead of the family.” (pp. 451, 452.)
The latter, among other things, said:
“The power of attorney contains no reference whatever to the homestead. It is as general as such an instrument could be made. . It is not necessary, either, that we should decide in this case that the husband could not be authorized by the wife in any manner to attach her signature to a deed. But it is necessary in all cases that the husband and wife assent jointly; that both shall assent to it; that each shall assent with the knowledge and concurrence of the other.” (pp. 453, 454.)
A homestead owner, without his wife’s knowledge, verbally agreed with the adjoining landowner that a fence standing on the land should be the dividing line. For some years this agreement was acquiesced in by both owners. Afterwards, the owner, his wife joining, conveyed the entire tract to the plaintiff, who sued to recover the strip of land between the true boundary and the fence. It was held that the agreement, having been made without the consent of the wife, was of no force or effect. (Kastner v. Baker, 92 Kan. 26, 139 Pac. 1189.)
In the Hafer case (33 Kan. 449), it was agreed in the ante-nuptial contract that if the wife should survive she was to have a child’s part of the husband’s estate. When the husband died the homestead was occupied by his wife and a minor child, and while the contract was held valid, it was decided that the homestead was not subject to partition until the widow remarried or the child reached majority. In the opinion it was said:
“The antenuptial contract in question does not in terms refer to the homestead privilege, nor do we think any of the provisions of the contract embrace what was intended by the parties as a release or waiver of such privilege. But independent of the contract, we remark that the homested is not made alone for the husband and wife, or of either one, but is also designed as a protection for the family who may be dependent upon them for maintenance. Considerations of public policy also entered into the enactment, by making such provision as will prevent their helpless children and dependents from becoming a public charity. To this end, and with a view of carrying out these purposes, guards have been thrown around the homestead. Strict constitutional and statutory restrictions have been placed upon its alienation. When it is occupied by the family it can only be alienated by the joint consent of the husband and wife, when that relation exists; and at the death of the owner, if the homestead is still occupied by the widow and children, the law prohibits its distribution under any of the laws, of the. state and from the payment of the debts of the intestate, and provides that partition shall not be made until such time as the widow shall again marry, or when all of the children arrive at the age of majority. In view of these considerations, and of the policy of the law which has been so frequently stated by this court, we think the right of occupancy of the homestead by the family of the intestate is not affected or disturbed by the antenuptial contract.” (p. 464.)
McMahill et al. v. McMahill, 105 Ill. 596, was referred to and followed. In that case the widow admitted making an ante-nuptial contract, but insisted that it was not obligatory. Section 1 of the Illinois homestead act then in force secured to every householder having a family a homestead which could be alienated only by release, waiver or conveyance in writing subscribed by the householder, or by conveyance of the premises or abandonment or giving up of possession. The court said:
“After her marriage defendant enjoyed the homestead of her husband, and after his death the law continued it in her favor so long as she should choose to occupy it.. It is obvious she could not contract, after marriage, by any written instrument not executed in conformity with the statute, to release her homestead, that would be binding upon her after the death of her husband. How, then, could she do it before marriage? If a contract to release homestead, not conforming to the statute, made after marriage, is not valid, certainly such a contract made before marriage, for still more cogent reasons, would be without binding obligation.” (p. 600.)
Two former decisions of the court were cited holding to a similar effect. While three of the justices dissented, the majority opinion seems still to be the law and a rule of property in that state.
In Swingle v. Swingle, 36 N. D. 611, it was held that an ante-nuptial agreement was void as to the homestead as contrary to public policy and welfare, and that—
“Such homestead exemption cannot be waived before the arrival of the appropriate time of claiming it.” (Syl. ¶ 1.)
The court said the first proposition was that the plaintiff, by her written agreement, by her selection of a homestead prior to the marriage, and by her acts subsequent thereto, was es-topped to set up any homestead rights.
“This conclusion is plainly error under the well-settled laws concerning such questions. The agreement in question was entered into prior to the marriage ... it nowhere undertakes to deal with a homestead right as fixed by the law of this state, and, if it did, being an agreement before marriage in regard to the homestead, it would have been absolutely null and void. . . . But as to homesteads under the laws of our state no prior antenuptial agreement would be binding or of any effect concerning any relinquishment or waiver of the right of the homestead if it was made prior to the time of such marriage.” (p. 619.) i
The supreme court of Illinois, in Zachmann v. Zachmann, 201 Ill. 380, held that a widow whose family consists in part of the children of the deceased husband may repudiate an ante-nuptial contract releasing the widow’s award. In the opinion it was said: It was said that the right of the debtor who is not head of the family to debar himself by contract stands upon different grounds, the reason given being that such a claim is personal to the debtor. That parties contemplating marriage may relinquish their respective rights in the property of each other by an antenuptial contract, except as to homesteads, is held by the supreme court of Iowa, in In re Estate of Adams, 161 Iowa, 88. It was there declared that, having enjoyed the benefits of the contract after the death of her husband, the widow was not in a situation to contend that it was void. In pointing out that contracts in contravention of the statute are generally held void, the court cited the McMahill, Zachmann and Hafer cases, among others.
“The exemption of personal property of the debtor who is the head of a family can not be waived by a contract in advance entered into by the head of a family, for the reason the exemption is for the benefit of the family of the debtor as well as for himself, and the debtor cannot, for that reason, be permitted to contract in advance to deprive himself and family of the advantage intended to be preserved to them by the law. . . . The courts generally regard it as against public policy to sustain a waiver, by an executory agreement of the right conferred upon a debtor who is the head of a family, to claim as exempt property which the law designs shall be exempted from levy or sale for the benefit, in part, of such family.” (pp. 390, 391.)
The Hafer case was again before the court. (36 Kan. 524,13 Pac. 821.) This time it had been determined by the trial court that the widow continuing to occupy the land as her place of residence and homestead, and all the children being of age except one daughter who was seventeen, the homestead provision of the constitution could not be superseded by the ante-nuptial agreement, and that the land was subject to partition, and the widow was given one-half of the homestead. On appeal it was held that the homestead was not subject to partition so long as the widow remained unmarried and occupied it as her residence or until all of the children had arrived at the age of majority.
“The only question to be decided is, whether the antenuptial contract . . . is to be upheld and enforced with reference to. the homestead, . . . or should it be divided under chapter 33, Comp. Laws of 1879?” (p. 527.)
Referring to the former Hafer decision, the court said:
“The court held, when this case was here before, that the antenuptial contract was valid, and provided a rule for settling the property rights of an intestate different from that laid down in the statute of descents and distributions, so far as all property was concerned, excepting only the homestead; and in reference to that it simply decided that such homestead could be occupied by the widow and minor children, independent of the said contract, until it was susceptible of partition. Now that the homestead may be divided, it is asked that the rule that applies to the distribution of the other property of an intestate shall not be applied to it. The constitution provides that a homestead occupied as a residence by the owner shall not be alienated without the joint consent of the husband and wife, when such a relation exists. The statute (ch. 33, Comp. Laws of 1879) further provides that the homestead shall be exempt from distribution under any of the laws of the state, and from the payment of any of the debts of the intestate, but shall be the absolute property of the said widow and children. Both of these provisions are for the protection of the homestead, to preserve a home for the family against the claims of creditors. When, however, the widow marries again, or all of the children arrive at the age of majority, . . . then it may be divided exactly the same, so far as the widow and the children of the deceased are concerned, as any other property that the intestate may have died seized of. . . . We do not believe the claim of the widow to the homestead is sacred and inviolate as against the legal claims of the children, after it can be divided. In a contract fairly made, and for a valuable consideration, Virginia disclaimed any share she might possibly have in the future in the homestead, and agreed to take in lieu thereof the property stipulated for in the contract. . . . We think there are equally good reasons, in fairness and equity at least, for holding that she cannot now claim, in the face of and in opposition to her contract, what might otherwise have been her rights.” (pp. 527, 528, 529.)
Attention was called to the statute of Illinois, relied on in the McMahill case touching exemption as long as the widow continued to occupy the homestead, and it was said that this rule did not obtain here; that when all of the children become of age the homestead may be divided. But in Cross v. Benson, 68 Kan. 495, 75 Pac. 558, and Weaver v. Bank, 76 Kan. 540, 94 Pac. 273, it was held that the widow constitutes a family within the meaning of the constitution. (See, also, Postlethwaite v. Edson, 102 Kan. 104, 171 Pac. 769.) Hence, under our decisions the homestead rule in case of the widow alone is as sacred and binding as when there are children occupying it with her.
The antenuptial contract which the court found to exist in this case did not destroy the widow’s right to possession of the homestead; so long, therefore, as she continues to be a widow she has the right to remain therein.
To this extent, and this extent only, the former judgment and opinion must be changed, and the cause is remanded with directions to modify the judgment in accordance herewith.
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The opinion of the court was delivered by
West, J.:
The plaintiffs, Samuel Turner and Birdie Turner, recovered a judgment for $2,000 for the alleged negligent killing of their daughter, Geraldine. The defendant appeals, and assigns as error the overruling of an objection to the introduction of evidence under the petition, admitting incompetent evidence, overruling a demurrer to the plaintiffs’ evidence, giving and refusing certain instructions, refusing to require the jury to retire and answer a certain question, and denying a new trial.
The plaintiffs in a cross appeal complain of rulings sustaining an objection to a speed ordinance offered by the plaintiffs, and refusing an instruction touching the claim of wantonness and the doctrine of last clear chance.
' The injury occurred on South street in Baxter Springs, which street, running east and west, is crossed at right angles by the defendant’s main track and a switch track located a few feet east thereof. The crossing was about thirty-three feet wide, and there was much traffic along the street to and from the Pitcher mining region to the west. The defendant’s southbound passenger train, due . about 7:30 a. m., came through about 8:30 a. m. The plaintiffs lived a short distance east of the crossing where they could see trains passing, and were familiar with the location where the injury occurred.
The petition alleged in substance that the sidetrack was about ten feet east of the main track and parallel with it for several hundred feet north of the crossing; that northeast of the crossing there was a large building about eight feet east of the side track, so that freight cars standing thereon were within about six and a half feet of the main line; that on the 7th of July, 1917, the defendant negligently left standing on this side line a string of freight cars. It was further averred that on this date the crossing was negligently maintained in a rough and irregular condition, and that by reason of the box cars on the sidetrack just west of the building already referred to persons riding in vehicles crossing to the west on the north side of the crossing could not see north along the main track until such vehicles were practically over it; that the defendant negligently failed to keep a watchman or any system of signals-to warn persons approaching the crossing from the east of the-approach of trains from the north; that it was the defendant’sduty to keep an automatic signal system or a watchman there- and to keep its sidetrack west of the building clear of cars;: that on July 7, 1917, the city attorney had notified the superin tendent of the defendant company of the dangerous condition of the crossing, without result. It was alleged also that Baxter Springs had in force an ordinance limiting the speed of trains within the city to six miles an hour, and that for more than a year the company had followed the practice of running its southbound train at a rate of speed not exceeding six miles an hour, and that this practice was notorious and known to the plaintiffs. It was charged that on July 7, 1917, the plaintiff Birdie Turner was driving along South street in a one-horse, spring wagon, sitting on the south end of the seat, Geraldine sitting on the north end, and behind them a Mrs. Cox was sitting on a sack of bran; that Birdie Turner could not see any part of the main line because her view was shut off by the building and the defendant’s freight cars on the sidetrack, and trees and bushes and other buildings north of the building; that she was in full control of the horse and listening and looking for any train that might be coming, but no whistle or bell was sounded or other warning given, and that when she reached a point where she could see north up the main track her horse was thereon, at which time she saw a train about 100 feet north of the crossing coming at about 25 miles an hour; that at this moment the employees in charge of the train saw her rig in peril, or by the exercise of ordinary care could have so seen, but failed to apply the brakes and reverse the engine as they could and should have done. She alleged that it was -impossible to back her horse off the crossing in time to avoid the collision, and the only safe way was to strike him with the lines and hasten his speed, which she did, the rig thereby being missed by the train by three or four inches; that Geraldine was thrown back over the seat in such a way that she rolled out óf the vehicle and “was struck on the head by some portion of the west rail of said locomotive,” from which falling and stroke she sustained internal injuries and her head was crushed and otherwise .so injured that she did not regain consciousness, but died within two hours.
The answer consisted of a general denial and an allegation of contributory negligence of Geraldine and Birdie Turner. .
With their general verdict the jury returned answers to a number of questions to the effect that there was no evidence to show whether or not Geraldine looked to ascertain that an engine or cars were approaching; that the occupants of the wagon did not stop to ascertain whether it was safe to proceed; that if Birdie'Turner had looked up the main track the box car was there to obstruct her view even if she had s,o looked when within 12 feet of the main track, and such occupants could not have seen smoke from the approaching engine if they had looked before driving on the main-line track, and that the sidetrack was sellen and one-half feet east of the main track at the north side of the crossing—
“2. Do you find that the view of Birdie Turner and Geraldine Turner was obstructed until such time as they were in a position of peril'known to defendants. Ans. Yes.
“3. Do you find that, under all the facts and circumstances, the defendant company was, on July 7th, 1917, negligent in running its train at the rate of speed it was running? Ans. Yes.
“4. Do you find that the defendant company, under all the facts and circumstances, was, on July 7th, 1917, negligent in running its train at ■the speed it was running without having a watchman at said crossing to warn and inform plaintiff and said Geraldine Turner of any danger. Ans. Yes.
“5. Do you find that the roadway was more or less rough and irregular on that crossing at the sides of the plank across the roadway? Ans. Yes.
“Q. 10. What, if anything, was there to prevent Birdie Turner or Geraldine Turner from hearing the approaching engine and cars, if they had stopped and listened therefor before driving on the mainline track? Ans. Buildings, box cars and amount of traffic.
“Q. 11. On the occasion in question, was it reasonably necessary, before driving on the main track, to stop the wagon in question, in order to ascertain whether an engine or cars were approaching on said track from the north? Ans. No.
“Q. 4. On the occasion in question, did the engineer apply the brakes as he saw said wagon crossing the main line? Ans. Yes.
“Q. 3. If you return a verdict against defendant, please state upon what grounds of negligence, if any, you base your verdict? Ans. On grounds of obstructions and speed of approaching train and rough crossing; no flagman at crossing.
“Q. 8. Did any part of the engine or train strike Geraldine Turner on the occasion in question? Ans. Yes.”
The overruling of the objection to the introduction of evidence under the petition is not argued in counsel’s brief and need not be discussed.
It was not error to overrule the demurrer to the plaintiffs’ evidence, but it would have been error to sustain it.
Neither was it error to refuse the defendant’s request for an instructed verdict.
Some complaint is made that certain issues covered by the pleadings were submitted to the jury, but no error in this respect appears to have been committed.
The jury were charged that it was. the duty of the driver before going on the track to look and listen for approaching cars, and if there were obstructions to her view greater vigilance on her part was required, and if they were such as to make it necessary in the exercise of reasonable and ordinary care to stop before going on the track to see if a train was approaching it was her duty to do so, and failure would be contributory negligence; also, that if the defendant failed to give any warning this would not relieve the driver from such duty to look and listen, and if she and her daughter did look and listen at the place where a train could not be seen this would not excuse them from looking at a point where it could be seen, and if they failed to look and listen, having reached the point where the train could have been seen and heard, and took no reasonable precaution the plaintiffs could not recover. Counsel argue that this coupling of these instructions raised the implication that the failure to give warning would relieve the driver from the duty of stopping, and it is said that this made more necessary the instruction requested and refused, to the effect that such warning would not excuse the failure to look and listen, and made it necessary to stop. But these instructions taken together were not hard to understand, and they stated the rule of law applicable in a way that could not reasonably have misled the jury.
Another instruction offered and refused simply covered the same ground, and its refusal was not error.
The defendant requested an instruction touching the proximate cause of the injury, which was denied, but one was given by the court which was fully as clear and correct, and hence the refusal was not error.
The defendant asked the court to charge that it was immaterial whether the train was late or on time as persons approaching a railroad crossing must act upon the assumption that trains and cars may appear at any time. This was refused, but the jury were told that a railroad track is a sign of danger and under the law and pleadings it was the duty of the driver, before going on the tracks, to look and listen for the approach of trains and cars on each track, and if ordinary care required, also to stop in order to ascertain whether a train was approaching. This sufficiently covered the point, the train in question having been about an hour late.
Fault is found with the court’s refusal to charge that the speed of the train was a proximate cause of the injury, but as the facts were before the jury and they were given the proper instructions as to what constituted proximate cause, this refusal was correct.
The four grounds of negligence on which the jury based their verdict — obstructions, rough crossing, speed, and lack of flagman — are said by counsel not to have been the proximate cause of the injury. They insist that it was the sight, and hot the speed of the train, that caused the driver to hurry the horse and thus throw the girl out; that from the driver’s own evidence the rough crossing had nothing to do with the accident; that the absence of the flagman was a condition and not a cause; and that the freight car was presumably where it was rightfully. It is suggested that among the obstructions the jury included the Murdock warehouse. We find no cause for imputing to the jury a disposition to hold the company blamable for the location of the Murdock warehouse. Birdie Turner’s own evidence touching the rough crossing was on this wise:
“Q. Now did you thereafter observe whether or not the driveway on that portion was rough and irregular? A. Yes, sir, it was a little rough.
“Q. What, if any, change did you find in the condition following that time, of the crossing itself? ... A. Since then I see they have put in more tracks and made it more smooth; put in more boards.”
In addition to this, Sheriff Frazier testified that there was much travel in the morning and evening going to and from work in taxicabs and trucks—
“I have seen them piled up there at .the crossing and have waited for the rigs and trucks to get out of the way, but never over 10 minutes. . . . That was rougher than the usual crossing. What caused that was the heavy trucks; so many trucks going over would dig the crossing out and make it holey, that was the condition on July 7, 1917.”
On cross-examination he said;
“Q. You remember any boards being cut out? A. I remember that crossing being rough because I crossed it so many times.”
So it will not do to say that the very mild finding as to the roughness of the crossing was not supported by the evidence.
Neither can it be said that the jury should have found that the girl was not struck by the train, or that their finding that she was hit was contrary to or not sustained by the evidence. It seemed to be claimed on oral argument that she was not hit at all. A large active girl of fourteen by simply falling from a wagon like the one in question would not be likely to receive fatal injuries. Jack Brashear testified that the rig went over the north side of the road and he saw the driver slap the lines to hurry across the track and he saw the girl just as she hit the ground.
“She hit pretty close to the west rail of the main line. I was about 50 or 75 feet from there at the time, on my load of lumber. As the train passed the girl was lying about the middle of the road, a little beyond— south of where she had fallen, in a low place cut out by wheels, in the traveled portion of the road. ... I went over to the girl; she was bleeding out of her nose and mouth — unconscious.”
On cross-examination he said:
“A. I did not see her hit.
“Q. You did not see her hit? A. But.I noticed her just before the train passed over and I noticed her tumble out. . . . She tumbled out on the north side of the wagon.”
Birdie Turner testified that the girl was doing nothing except sitting by her until she rolled out—
“And when I got back there she was lying on the south side of the traveled way quite a ways west of the main-line track, about 12 or 13 feet west of the main-line track, bleeding in the mouth and nose, unconscious. She died in about two hours.”
Hal Hardman testified:
“I went down to where Geraldine Turner was lying unconscious bleeding at the mouth and ears, on the south side of the traveled way.”
Rosg White :
“The girl was lying pretty much toward the south side of the road. The used portion was about 20 feet wide and she was on the south side. I believe she was a little ways off the traveled portion. . . . She was bleeding at the mouth, nose and one ear, and unconscious.”
Porter Clark, undertaker:
“She had been struck by something in the abdomen and side of the head.”
E. F. Allard:
“She was lying west of the main-line track something about like 7 or 8 feet tolerably close to the south side of the traveled way, I judge 5 or 6 feet from the embankment.”
The answer to question 10, to the effect that buildings, box car and amount of traffic would have prevented hearing the approaching train if the driver and her daughter had stopped and listened, is justly criticized as disingenuous and groundless. It is also said that the answer to question 11, that it was not necessary to stop in order to ascertain whether a train was approaching, is contrary to the preceding answer. It may be said that one had to do with hearing, while the other involved both hearing and seeing. At any rate, if the obstruction and traffic were in fact such that to stop and listen would have been without avail it would follow that it was not necessary to stop for that purpose, for as said in Edwards v. Railway Co., 90 Kan. 499, 135 Pac. 562, the plaintiff and her daughter were not required to listen for something they could not hear.
It is finally argued that under the decisions in Palmer v. Railway Co., 90 Kan. 57, 60 Pac. 736, Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742, and Williams v. Electric Railroad Co., 102 Kan. 268, 170 Pac. 397, finding No. 5, that the occupants of the wagon did not stop to ascertain whether it was safe to pro-, ceed before the wagon got on the main track, makes a recovery impossible. In the Palmer case there were eight tracks about thirteen feet apart and cars standing on all but the main track. Palmer, coming west, crossed six sidetracks before reaching the main track, his view to the north being completely obstructed by box cars. The southbound train coming six to eight miles an hour struck his wagon on the main track, after he had driven his team over it without stopping, looking, or listening. He was held to have been injured as the result of his own carelessness. In the Wehe case the driver approached the track at a place where he could not see along it until his car was where it would be struck, and he did not stop to see whether or not there was any danger, although he did listen for a train. He was held required as a matter of law to stop his car before driving it upon the track. In Williams v. Electric Railroad Co. it was declared in the syllabus that where obstructions- to his view prevent one about to cross a railroad track from otherwise ascertaining the fact of safety, then it is his duty to stop to make sure of his safety before crossing. The facts before us do not exactly fit either of these decisions. Here the rig and the daughter were all over the track safe and sound, but just as the wagon cleared the main track the girl fell and met her death. Grant that the obstruction did no harm because no one tried to look north, and that the speed of the car failed to impel it swiftly enough to strike the driver or the rig, still the findings supported by the evidence present a condition out of which a death arose, and clearly somebody was negligent.
All the logic, reasoning and refinement which mark the discussions and define the law amount simply to this: That one party cannot hold the other responsible for an injury which his own carelessness has alone, or with the other’s, caused. Usually, the question of contributory negligence is one of fact for the jury, and so run scores of our own decisions. It is only when the court, having all the facts before it, which it can see the same and as well as the jury, that it becomes a matter of law, and then only when it must be judicially said that following proper legal rules reasonable men would not fairly differ •as to the proper conclusion to be reached.
“It is only when the court does not know all the facts as well as the jury, or, if knowing all of them, different minds might deduce different conclusions, that the question of a traveler’s obligation to stop at a highway-crossing belongs exclusively to the jury, . . . and knowing the facts as the jury knew them we believe all reasonable minds, if guided by correct legal rules, would arrive at the same conclusion.” (Railroad Co. v. Willey, 60 Kan. 819, 823, 58 Pac. 472.)
"Of course, if the jurors’ minds are not guided by correct legal rules they act capriciously or unguided, and therefore in an improper manner. In Railroad Co. v. Brock, 64 Kan. 90, 67 Pac. 538, it was said that there may be cases in which none of the evidence tends to show that it would have been the part of wise caution to stop, and that there are occasionally cases in which the evidence proves without doubt that the traveler should have stopped, and—
“In the latter class the obligation to stop must be declared as a matter of law by the court.” (p. 92.)
In Williams v. Electric Railroad Co., supra, it was declared, in paragraph 2 of the syllabus, of one about to cross a railroad track:
“But where obstructions to his view prevent him from otherwise ascertaining the fact of safety, then it is his duty to stop to make sure of his safety before crossing.”
In Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999, the driver of the vehicle could not see the approaching train because of obstructions with which he was familiar, and which also prevented him from hearing it. In addition to this he had his ears muffled, and it was said that in that situation, and knowing the crossing to be dangerous, he simply took chances and drove upon the crossing when a halt to look and listen would have saved him. It was said:
“This court has before it facts which enable it to know the situation of the plaintiff at the time of the injury as well as the jury knew it, and knowing the facts as well as the jury knew them, the court concludes' that reasonable minds guided by correct rules of law would reach the conclusion that the plaintiff ought to have stopped to look or listen, or both, before driving upon the track.” (p. 478.)
Here we have facts, the scene of the accident and the circumstances before us the same as the jury had them. Assuming that the fall from the wagon was caused by the roughness of the crossing, which was the result of the defendant’s negligence, it is perfectly plain that the driver, without stopping, came by an obstruction which made it dangerous to approach the track without stopping, and seeing the train coming, speeded up the horse, and had she stopped before approaching this place, well known to her to be dangerous, the injury would not have occurred. There are present, therefore, two cases of negligence — one of the defendant, and the other of the driver — without either of which no harm could have been done, but by the coupling of which the injury and death occurred. Persons who take chances in driving upon railroad crossings under.such circumstances must, under the settled rules of law, be left without redress, for otherwise they would be recovering damages caused by their own carelessness. It follows, therefore, that the judgment must be reversed.
The refusal to receive in evidence the speed ordinance, whether right or wrong, was not materially prejudicial, for its admission would still have left the driver’s negligence a complete bar to recovery.'
The requested instruction as to wantonness and last clear chance was properly refused, first, because neither of these elements was pleaded, and second, because the evidence did not fairly tend to show either wantonness or circumstances making applicable the doctrine of last clear chance.
The judgment is reversed with directions to enter judgment for the defendant.
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The opinion of the court was delivered by
Johnston, C. J.:
Blanche Hayes was prosecuted for feloniously shooting and killing her husband and was found and adjudged to be guilty of murder in the first degree.
The testimony produced in evidence included a written confession of the defendant giving the details of the homicide, and the only questions presented on this appeal relate to the admission of this confession. The objection to the confession, which had been reduced to writing, signed and sworn to before the clerk of the district court, was that it was involuntary. She testified that she was pressed by the officers and F. .J. Evans, who reduced her statements to writing, to enter a plea of guilty, and it was suggested that if she would confess and enter a plea of guilty, the penalty inflicted would be reduced to that for murder in the second degree. On the other hand, Evans testified that the' defendant had said that she desired to make a statement in reference to her husband’s death. First, she talked to him about her children and the family property, and then proceeded to relate the circumstances of the tragedy and the part she had taken in it. At the conclusion of her story Evans asked her if she was willing to make and sign a written statement of the facts she had related, and to this she consented. Evans then sat down at a typewriter and the answers she gave in response to his questions were written down and at the end of each statement or paragraph it was read to her and her assent to its correctness given. At the end of the writing the complete statement was read over to her, and afterwards she took it and read it throughout in the presence of the clerk of the district court, who had been called in to witness the signature and administer the oath. The clerk testified that she read, or appeared to read, it over at length and then placed her signature to the writing and swore to the truth of the statements contained in it. Her testimony that inducements were held out to her by Evans that the penalty would be reduced, before the confession was made, are directly denied by him. He did testify that after the statements had been made and the confession signed and sworn to, he did suggest to the county attorney that if he were acting in the capac ity of county attorney he would accept a plea of guilty to murder in the second degree, under the circumstances, and the county attorney appeared to concur in his suggestion. This suggestion was not addressed to the defendant, although it was made in her presence, but he testifies that it occurred after the confession had been made. She also had an interview with the judge of the district court, after which she concluded not to enter a plea of guilty, and in the trial she undertook to show that the. confession was involuntary and that she was innocent of the crime charged. Of course, if the confession was involuntary or extorted through hopes or fears held out to her by the officers, it was not receivable in evidence. The admissibility of the confession is a question for the court in the first instance, but if it is held to be voluntary and admissible, the weight and credibility of the evidence are to be determined by the jury. In this respect the function of the judge is somewhat like that exercised when he is called upon to determine the admissibility of a dying declaration. There the court must decide as a preliminary question whether the declaration was made under a sense of impending dissolution, but after the evidence is admitted, its credibility is entirely within the province of the jury. (The State v. Reed, 53 Kan. 767, 37 Pac. 174.) The jury may not reject a confession as evidence, but it is to be taken into consideration with the other evidence in the case, and the jury is at liberty to repudiate any part of the confession which they do not believe. (12 Cyc. 482; 2 Wigmore on Evidence, § 1451; 16 C. J., § 2287.) As to the voluntary character of the confession, there was a direct conflict in the testimony of the defendant and that produced by the state. This conflict is to be determined like any other question of fact, and the finding by the court that it was voluntary puts that question at rest. The finding, of course, is open to review, but as the court had a much better opportunity to .ascertain the truth than the reviewing court can have, its conclusion, supported as it was by competent evidence, cannot be disturbed.
It is insisted that the defendant was hurried from the place of arrest before she could consult an attorney, but the arresting officer was not required to stop on the way for consultation .with an attorney until he had obeyed the command of his warrant and placed the prisoner in the jail of the county where the crime was committed. She was arrested at Dodge City, which is about fifty miles from the place of trial. It is contended that the defendant having been in custody and in charge of an officer when the confession was made, and that she was interrogated by them, required the rejection of the confession. The fact that defendant was in custody when she made the confession does not amount to undue influence, and neither does the fact that she was questioned by the officers furnish a ground for excluding the confession. (Hopt v. Utah, 110 U. S. 574.)
In the instructions the court left to the jury the credibility and weight to be attached to the confession, and in her brief no complaint is made of the instructions. It must be held that the confession was voluntary and properly admitted in evidence.
Judgment affirmed.
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The opinion of the court was delivered by
Dawson, J.:
It is contended in the appellee’s petition for a rehearing that the decision in the present case (Ernst v. Railroad Co., 105 Kan. 706, 185 Pac. 1053) is at variance with S. K. Rly. Co. v. Croker, 41 Kan. 747, 21 Pac. 785, where a recovery was permitted on an injury to.a workman’s eye caused by a particle which flew from a stone which the workman had hit with a hammer, the handle of the hammer being a crooked green stick cut from the brush near by. But in the Croker case, the dangerous nature of the defective tool had been ascertained before the injury to Croker’s eye occurred. He had already been slightly injured by the use of such a handle. Moreover, it does not appear that the precise question which controls the present case was urged or discussed in the Croker •case. Here we have only to do with a defective tool, not one apparently or obviously dangerous, as well as one which was simple and common in the plaintiff’s vocation. No hint of danger was given to or recognized by the master. The most that could be inferred from the plaintiff’s statement, “This wrench is bad; this wrench is not very good; I’ve got to have one,” was that the workman could not do good work with it nor work conveniently with it.
Again, it might be observed that the Croker case was itself an extreme one. It was so declared in Morbach v. Mining Co., 53 Kan. 731, 746, 37 Pac. 122. It was cited in Railway Co. v. Puckett, 62 Kan. 770, 774, 64 Pac. 631, where it was hardly pertinent, and again in Railway Co. v. Sledge, 68 Kan. 321, 327, 74 Pac. 1111, in which it was said that the principle governing exemption of masters for injuries to workmen in the use of simple, common tools with which the workmen were familiar had not (at that time) been pushed very far in this state.
But in Hill v. Railway Co., 81 Kan. 379, 105 Pac. 447, the matter was carefully considered, and the venerable jurist (Justice Benson) who had to write the court’s opinion, but who did not personally agree with it, admitted in his dissenting opinion that the principles of law laid down in the syllabus were correct. The syllabus reads:
“1. In the absence of wanton or intentional wrongdoing an employer who furnishes defective instrumentalities is liable to an employee only when danger could reasonably be apprehended from their use.
“2. If persons of ordinary caution and prudence would not, in the light of the attendant circumstances, anticipate danger in using a defective appliance, and danger is not a natural and probable consequence of such use, liability to an employee for negligence in furnishing it does not arise against the employer.”
The court cannot see that the Lannigan case, in 56 Kan. 109, 42 Pac. 343, where a brakeman was injured in the nighttime while coupling cars, has much relevancy. The railway company had given the brakeman a smoky, old lantern to use in his dangerous work. He complained of the lantern and was promised a good one, and directed to use the old one until the promised good one could be gotten. Requiring the employee to do dangerous work in a dangerous place without a proper safeguard — a. good lantern — was the gist of the railway company’s fault in that case.
The petition for a rehearing does not point out anything in the case which was overlooked by the court, and upon full consideration the court is satisfied with the principles of law laid down in the original opinion; consequently, a rehearing would merely be a disservice to both plaintiff and defendant.
Rehearing denied.
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The opinion of the court was delivered by
-Mason, J.:
Lemuel Miller, a porter in the employ of two motor companies at their garage and salesroom, was driving an automobile along the street at a speed estimated at from thirty-five to fifty miles an hour, when he ran into another car on a cross street with such violence as to drive it upon the sidewalk, injuring Fannie Howard, who was standing there. She brought action against the companies and obtained a judgment against them, from which they appeal.
1. They contend that the evidence did not warrant a finding that at the time of the injury Miller was engaged in the services of his employers, but on the other hand showed conclusively that he was driving for his own pleasure. Miller as a witness for the plaintiff gave evidence tending to show these facts:
He was called the head porter. His duties included washing and cleaning cars, delivering them, and demonstrating cars — doing the driving. When the general manager of the companies wanted a man for work around the garage Miller would bring one to him. On the day of the accident Miller backed a car out of the garage to let another one through, and while he was still in the car (which belonged to a customer) the manager told him to go and find a suitable porter and put him to work washing a car which was then on the rack. Without getting out of the car he drove several blocks to a barber shop where he thought he could find two men that he had in view for the purpose.
He was not asked whether he found either of the men for whom he was looking, and his testimony did not specifically cover that point. It might be inferred, however, that they were not there, for he testified that after going to the barber shop he started back to the garage and was on the way there when the collision took place.
Much of this evidence was contradicted, but that of course is not now material. If the jury credited it, and that must be assumed, the conclusion was justified that Miller at the time of the accident was driving the car while upon an errand for his employers — while returning to the garage after having made the trip upon which he had gone in their behalf. In that situation there can be no doubt of the liability of the defendants for the consequences of his negligent driving.
The defendants introduced evidence, which the jury by their special findings showed that they believed, that as Miller turned his car near the barber shop he saw a friend who, at his invitation to go on a spin with him, got into the car and accompanied him on the remainder of the trip, the accident occurring on a direct route to the defendant’s place of business.
In returning with the car to the garage Miller was as much in his employers’ service as while he was on the outbound part of the journey. (Thompson v. Machinery Co., 96 Kan. 259, 150 Pac. 640.) And the fact that he took a friend on board to enjoy with him the pleasure of a run in violation of the speed limit does not affect the legal aspect of the matter. He was of course disregarding his duty to his employer in the way he managed the car, but his misconduct was in doing in a wrongful manner what he was employed to do properly— he was acting within the scope of his employment. The case is well within the rule illustrated by Roberts v. Kinley, 89 Kan. 885, 132 Pac. 1180, and the facts are obviously quite different from those on which the decision was based in Toadvine v. Sinnett, 104 Kan. 111, 178 Pac. 401. If there had been a deviation from the direct line of travel on a return to the garage, the defendants’ liability might have been affected according to the particular circumstances (Note, 17 N. C. C. A. 659; 4 N. C. C. A. 27), but under the evidence and the findings there was none. Miller’s asking and allowing a friend to ride with- him, such conduct not having been forbidden and not having been the cause of the accident, could obviously not affect the liability of the defendants. Even where an agent sent in an automobile on an errand for his principal takes in a guest for whose accommodation he deviates from the direct route, it has been held that his employer may be liable for the results of his negligent driving. (Note, 17 N. C. C. A. 663-665.)
2. The plaintiff’s attorney was permitted over objection to ask a juror on his voir dire whether he was a stockholder in any corporation and whether he was a policyholder in any mutual insurance company which had for its purpose the insuring of persons against actions for damages arising by virtue of accidents. The defendants complain of this on the ground that the questions were not asked for the purpose of developing any information concerning the juror that might tend to suggest a bias on his part, but solely to lead the jury to infer that if a judgment were rendered for the plaintiff the loss would ultimately fall, not upon the defendants, but upon some insurance company. The trial court must be deemed to have decided that the questions were asked in good faith, and as its opportunity for forming a judgment on that matter was better than ours, its determination must control, there being nothing in the record that compels a contrary conclusion. (Swift v. Platte, 68 Kan. 10, 74 Pac. 685.)
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This appeal is from a judgment denying an injunction against the closing of a roadway.
The plaintiff and the principal defendant derived their adjacent and neighboring properties from a common ancestor, Mason Ferguson, who died in 1910. At the time of his death Mason Ferguson owned certain lands in section 33, township 34, range 21 east, in Labette county. His lands were partitioned, and the plaintiff thereby acquired the south half of the northwest quarter (80 acres), including the farm buildings which were situated near the south side and near the east end of the eighty decreed to him; and the defendant, his sister-in-law, was given adjacent lands in the southwest quarter section, and was also awarded the northwest forty acres in the southeast quarter section. The northeast quarter section was owned by a stranger, Brady, and the northeast forty acres of the southeast quarter was platted as a part of the city of Chetopa.
The roadway in controversy runs eastward on the half-section line, from the plaintiff’s farm buildings on the south side of his eighty, between Brady’s land on the north and the defendant’s land on the south, and it connects with a public street which is also on this half-section line. It is altogether on defendant’s land.
In pioneer times in Labette county, this half-section line, east and west, was a traveled highway. In 1871 it was a part of a so-called “Humboldt and Chetopa State Road.” In 1872, this part of the road was vacated by the board of county commissioners, but that order did not discontinue its use, as the property was then unfenced and people traveled it as before, when they were so inclined, but also traveled diagonally across the land, as suited their convenience, and with little regard for section or quarter-section lines.
Mason Ferguson acquired these lands about 1885. There was at that time sufficient travel on the half-section line to justify its being considered as a public highway. Shortly thereafter, and the same year, a railway was constructed on and near this half-section line, which rendered it useless as a highway for the general public. Through travel west of Mason Ferguson’s house practically ceased. Ferguson, however, and his family and those having business with him continued to travel eastward between his farm residence and Chetopa along and near this old roadway. His children continued to travel along or near the old roadway to the schoolhouse situated northeastward. Some such travel was north of the railway, but part of it was on the south side of the track.
In time, Brady fenced his south line and the railway fenced the north side of its right of way. The two fences formed a sort of fenced lane fifty-six feet wide, which was and is an integral part of defendant’s forty acres (N. W. 14 S. E. 14) at its northern limits, but practically isolated from the remainder of the forty by the railway. It is this isolated fifty-six-foot strip which constitutes the disputed roadway. Many years ago a wooden culvert was placed in the roadway at public expense, but it has disappeared. It was also shown that plaintiff had been permitted in times past, before the railway was built, to work out his poll tax on this roadway.
The lands of Mason Ferguson were partitioned in 1913. For some time thereafter the plaintiff continued to use the fifty-six-foot strip as a roadway. His children used it in going to and from school. Plaintiff conducted a horse-breeding establishment on his farm premises, and many persons used this roadway to patronize his business.
The principal defendant and her tenant fenced the roadway. Hence this lawsuit. Defendants prevailed, and plaintiff appeals.
The situation presented is one which perhaps would have justified a different judgment in the trial court, but it is hard for this court to discern a plain palpable error in that judgment.
When Mason Ferguson owned the plaintiff’s and defendant’s lands, he could not create a public highway by his own use of it. Moreover, all the uses which an easement might supply were then embraced in his general proprietorship. Nor would a- public way to his house be created by the use of this strip of land by his neighbors who came to his premises. They were merely his licensees. (Sexton v. Holt, 91 Kan. 26, 136 Pac. 934.) It is not shown that Mason Ferguson dedicated this disputed strip of land to public use. True, people used it, but they did not use it exclusively. There was evidence that the travel eastward from the Mason Ferguson premises was on the south side of the railway as well as on the north side. One witness testified that he sometimes had “gone through gates” to reach the Ferguson place. It was also shown that such travel as there was from the Ferguson place eastward was over several different tracks, and was not confined to this fifty-six-foot strip. One witness said the accustomed travel was “somewhere near the half-section line.” Another witness testified: “In the early days the east part of the road was probably a little south but very near the place it now is.” Another witness testified: “While [Mason] Ferguson owned it we crossed the railroad right at this house and went down on the south side of the railroad.” “When we built the railroad we put the road south of the right of way and let it stay there.”
In view of this evidence it cannot be said that the fifty-six-foot strip on the north side of defendant’s forty acres had been dedicated by Mason Ferguson as a public highway. It was simply one of a number of ways of convenience for himself and family and those who had dealings with him.
After the lands of Mason Ferguson were partitioned, there-was no sufficient showing of use and of duration of use of this fifty-six-foot strip to create a public highway on defendant’s land by prescription. And upon partition, it is only ways of necessity and not mere ways of convenience that pass to the individual tracts carved out of the original estate. A public road skirts plaintiff’s land on the west, which gives him access north and south, and eastward and westward at the regular section lines. When an estate is severed without specific reference to easements for rights of way, easements by implication over the apportioned lands in favor of the other allottees only arise where they necessarily and obviously must arise to give the allottees fair enjoyment of their several allotments. (Mitchell v. Seipel, 53 Md. 251 ; Grant v. Chase & al., 17 Mass. 443, 447; Carbrey v. Willis, 89 Mass. 364; Nichols v. Luce, 41 Mass. 102; Kelly v. Dunning, 43 N. J. Eq. 62; Parsons v. Johnson et al., 68 N. Y. 62; 14 Cyc. 1168 et seq.)
It seems needless to consider whether the present controversy was res judicata in the partition proceedings, as the matters above discussed make it conclusive that the j udgment cannot be disturbed.
Affirmed.
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The opinion of the court was delivered by
Porter, J.:
The plaintiff brought suit against Delaware township in Wyandotte county to recover damages for injuries caused by a defective highway. There- was a verdict and judgment in her favor, from which the township appeals.
The. plaintiff, a widow 45 years of age, had been for several years conducting an auto livery business at Bonner Springs. The evidence showed that in Delaware township a public highway runs in a general southerly direction from the town of Bonner Springs to Loring, a station on the Union Pacific railroad. A short distance outside of Bonner Springs it crosses Wolf creek. Over Wolf creek a steel bridge was erected and maintained by Wyandotte county. For 200 feet beyond the bridge there were deep gullies or ditches on either side of the road, so that the roadway at the top was only from 8 to 9 feet in width at the point where the accident happened. The ditch on the right-hand side was from 8 to 10 feet deep, and the action of water after heavy rains had washed out and undermined the roadway, leaving a shelf of unsupported earth, held together by weeds and grasses which grew in the ditches. The plaintiff was driving a touring car and traveling about 20 miles an hour.' When she reached a point 90 feet south and west of the bridge, a portion of the side of the road, probably 18 inches wide, ■ settled or caved from beneath the right-hand front wheel of her car. She testified that the dropping of the car in front threw her forward against the steering wheel; that the differential dragging on the more solid ground held the car from plunging forward, but the heavier weight of the rear portion of the car caused it to swing round to the left; that she then leaned to that side so that her weight helped to balance the car, preventing it from tipping over, and that it fell into the ditch, throwing her backward and bruising and injuring her. The testimony is that the force of the fall broke all but three spokes in the right rear wheel and caused some other slight injuries to the car, not sufficient, however, to prevent it from being operated. The plaintiff got out of the car, climbed up on the bank, mashed down some weeds so that she could examine more closely the condition of the ditch, then got back into the car and drove it a few hundred yards up the ditch to where the ditGh. ran out, turned the car round and drove about a mile to Bonner Springs. On the same day she took an interurban car to Kansas City to obtain repairs and parts for the car, and after getting them returned on the interurban; she suffered considerable pain while in Kansas City and on the return trip, but was able, with the assistance of her daughter, to walk to her home from the car line, a distance of about two blocks.
Defendant’s first contention is, that chapter 237 of the Laws of 1887 is unconstitutional. The chapter comprises section 722 of the General Statutes of 1915, and authorizes, in certain cases, actions of this kind to be brought against a county and, in certain other cases, against townships, provided in the one case the chairman of the board of county commissioners, and in the other the trustee of the township, shall have had notice of the defect for at least five days prior to the time when the injury was sustained. The title reads:
“An act making counties and townships liable for defects in bridges, culverts and highways in certain eases.”
It is insisted that the act contains two subjects, and that the title indicates an intention to make counties and townships jointly liable for certain defects; that it is .one thing to say that a county shall be liable for injuries occurring upon a bridge, and a different subject to say that townships shall be liable for injuries upon a highway. It is conceded that if the title read, “An act relating to highways and providing for liability for defects therein,” it would be a single subject and express clearly what it intended to cover, but it is urged that even under such a title the- act must relate to highways and bridges upon such highways, or it would embrace more than one subject.
It has been held that in order to correctly interpret this provision of the constitution, its purpose must be taken into consideration, and it must not be construed in any narrow or technical spirit, but liberally on the one side so as to guard against the abuse intended to be prevented, and liberally on the other side so as not to embarrass or obstruct needed legislation ; that the title of an act may be as broad and comprehensive or as narrow and restricted as the legislature may choose to make it; it may include innumerable minor subjects, providing they are capable of being combined and united so as to form only one grand and comprehensive subject; that in considering the title, as well as the act, reference must be had to the object of the act and the evil sought to be remedied. (Division of Howard Co., 15 Kan, 194; The State v. Barrett, 27 Kan. 213.)
We think neither the title nor the act embraces more than one subject. The subject of the act is liability for injuries caused by defects in highways; the purpose was to impose that liability (where it had not rested before) upon the particular political subdivision of the state whose duty it was to keep the road in proper repair. By a strictly grammatical construction, the language of the title might be said to indicate an intention to impose a joint liability upon counties and townships, but mere awkwardness of expression will not overthrow a statute, nor will courts upon mere doubts of its constitutionality declare a law invalid; and the courts may restrict or enlarge the ordinary meaning of language for the purpose of upholding the validity of a statute. (The State, ex rel., v. Ewing, 22 Kan. 708, 712.)
The defendant insists, however, that under the statute the. defective bridge does not necessarily need to be upon a highway at all; that it has no connection with a highway, and attention is directed to the language of that part of the title which reads, “liable for defects in bridges, culverts and highways.” We think that in this act, as in all other legislation with reference to bridges and highways, the legislature considered that a bridge is part of a highway — which it always is. The first definition of a bridge given by Webster’s International Dictionary is, “A structure, usually of wood, stone, brick, or iron, erected over a river or other watercourse, or over a chasm, railroad, etc., to make a passageway from one bank to the other.” If an accident were caused by a defect in a bridge erected and maintained by a county on a township road, the county under certain conditions would be liable; if the injury were caused by a defect in the part of the road maintained by the township, the township would under similar circumstances be liable. Under the present road laws all public roads are either state roads, county roads, mail routes, or township roads (Gen. Stat. 1915, § 8772), and certain classes of bridges on a township road are county bridges, because it is made the duty of the county to build them where the cost exceeds a certain amount. (Gen. Stat. 1915, § 8825, as amended by Laws 1917, ch. 265, § 11.) As we have seen, it was the legislative purpose to define the liability of townships and counties in certain instances for defects in highways, and each provision of the act is fairly adapted to accomplish the purpose and has a logical connection with the general subject. The statute has been in force for more than thirty years. If, at a time when the paramount necessity for the construction and maintenance of good roads is recognized everywhere, and when the people of every community in the state are planning to assume heavy burdens in order to establish good and safe roads, the court upon such slight grounds, should now hold the statute invalid and declare that there is no law imposing a liability upon counties or townships' for damages caused by defects in highways, it would, indeed, startle the general public and astonish the legal profession.
There is the further contention that section 722 has been repealed by subsequent legislation concerning roads and highways. The section was a part of article 1 of chapter 15 of the General Statutes of 1915, the title of the chapter being “Bridges.” The legislature of 1917 expressly repealed all the sections of that chapter from 708 to and including section 739 except section 722. The fact that in revising the law they allowed the liability statute to stand as it was, makes against the theory of the repeal of the latter by implication. Besides, there is nothing in the section inconsistent with or repugnant to the provisions of the amendatory act. Repeals by implication are not favored, and it has been declared that the courts cannot say that “one statute repeals another statute by implication . . . unless they are so repugnant to each other that under no circumstances can both be given force and effect.” (Newman v. Lake, 70 Kan. 848, syl. ¶ 3, 79 Pac. 675. See, also, Stephens v. Ballou, 27 Kan. 594; Keirsey v. Comm’rs of Labette Co., 30 Kan. 576, 2 Pac. 864; School District v. Coughlin, 88 Kan. 1, 127 Pac. 219.)
The presumption is against repeal by implication “where the legislature, in the amendatory act, has adopted the method of express repeal as to other provisions of the original act.” (The State, ex rel., v. Holcomb, 93 Kan. 424, 144 Pac. 266.) The rule is that both laws are to be sustained “If, for any purpose or under any circumstances, their provisions can both find scope for action.” (Newman v. Lake, supra [p. 856], and see authorities cited in The State, ex rel., v. Holcomb, supra.)
The main contention of the defendant is that the road where the plaintiff was injured is a county road and not a township road. The testimony shows that the road had been a public highway for 35 years and was part of what was known originally as the Groene road; that the county built the bridge over Wolf creek several years ago, and after that bridge was washed out the county in 1901 built a new bridge; and that the township graded up the road after the first bridge was built and.made it a highway in shape for travel. The township hired this work done and paid for it. It had made all the repairs, cut the weeds and dragged the road, at least since 1901. After the plaintiff’s accident the township built retaining walls on both sides of the road, filled in the ditches, graded up and made the road a. level highway for a width of from 18 to 20 feet extending from the end of the bridge a distance of about 200 feet. The township trustee testified that he had this work done and that the township paid for it. The road overseer of the township testified that the road was in the district where he worked, and that it was the township’s business to look after the road. The testimony shows that the road connects at the western limits of Bonner Springs with two of the streets of that town and with a road coming from the north. There is no more reason for considering it as a detour of the Kaw Valley road, which ends at the western limits of Bonner, than as a part of the road leading north from that town. Under the statutes it was the duty of the county commissioners to classify county roads. (Irvin v. Finney County, 106 Kan. 171, 186 Pac. 975; Laws 1911, ch. 248.) Section 1 of this act (Gen. Stat. 1915, § 8755) defines county roads as follows:
“ ‘County roads,’ all roads designated as such by the board of county commissioners of a county connecting cities and market centers. . .
The county clerk testified that there was no record of the road from Bonner Springs to Loring having been designated or set apart as a county road. The county engineer, who was appointed in June, 1917, testified there was in his office, made under his direction and that of the board of county commissioners, a map showing the county roads as approved by the board. He began the preparation of the map in September, 1917, but could not say whether it was before or after the date of the accident, but that the map was the only one ever approved. It contains no reference to the road where the plaintiff was injured. It mentions, however, a road from the west limits of Kansas City, Kan., to the east limits of Bonner Springs, known as the Kaw Valley road. The defendant’s contention that the road where the plaintiff was injured was a. county road is based, for the most part, upon a lease which the' county clerk produced, executed by the Union Pacific Railway-Company in August, 1916, by which it leased to Wyandotte1 county a strip of ground on its right of way from the western limits of Kansas City to the west side of the county for road purposes, the county agreeing to pay a yearly rental, the lease containing a provision that it should not be assigned or transferred, and that no one but the county commissioners could go into possession of the road or do any work thereon. It contained an agreement also that the lease might be canceled upon, ninety days’ notice. Accompanying the lease was a blue print or plat drawn in the office of the engineer of the railway company which shows a public road running from a point east of Muncie on the right of way of the railway company to a point south and east of Bonner Springs, where it leaves the right of way and extends to the eastern limits of Bonner Springs. The plat also shows the same road beginning again at the west limits of Bonner Springs and running in a southwesterly direction for nearly 2,000 feet, where it again enters upon the railway right of way and extends to Loring. Long before this, lease was executed, however, the county obtained legislative authority (Laws of 1899, ch. 276, § 1) to construct “a certain public highway beginning at the west boundary of the city of Argentine; thence, by way of the Turner bridge, Muncie, and Edwardsville, to Bonner Springs, commonly known as the Kaw Valley road,” and in pursuance of that authority the county macadamized the road which is known and designated as the Kaw Valley road; but in conformity with the statute it ends at Bonner Springs. The mere fact that the engineer of the railway company or some clerk in his office, in preparing the map, saw fit to show a road two or three thousand feet off the railway right of way and to designate it as part of the Kaw Valley road is no proof that it was part of that road. The lease on the right of way was not obtained until about fifteen years after the Kaw Valley road had been taken over by the county. Moreover, as is well known, the Union Pacific Railway Com pany, in oí der to secure recognition of its rights in and possession of its 400-foot right of way, has seen fit within the past few years to procure the acceptance of written leases by municipalities and individuals that had theretofore occupied portions of the right of way, and this doubtless explains the purpose for which the lease was executed. In any event, however, the lease had no effect upon any lands outside the right of way.
We are unable to concur in defendant’s statement that “there was evidence strongly tending to show the county alone had charge of this road.” On the contrary, we discover no evidence to show that fact, but think the overwhelming evidence showed that the road upon which the plaintiff was injured was a township road. In this connection complaint is made of instruction No. 4, which standing alone seems to be erroneous. As instruction No. 5 relates to the same question, we print the two together. They read:
“4. Before the defendant township can be made liable for damages in this case, you must find from a preponderance of the evidence that the road was within the township; that it was a road generally traveled by the public and maintained at public expense; that is to say, by Delaware township or Wyandotte county for the purpose and object of being used and traveled by people generally, as a part of the public highway system within the township.
“5. If you find that portions of said highway, of which the road at the point in question forms a part, was leased by the county of Wyandotte for the purpose of public travel as a public highway, and that the county built the bridge across Wolf creek on this road for the purpose of having the public use the road, and that the road at the point in question has not been designated as a county road by the county and state officials, and was taken charge of by the township officers and has been repaired and improved by Delaware township, I instruct you that the plaintiff, if otherwise entitled to recover, will not be precluded by the fact that said road was never laid out and established as a township road.”
There is ground for the contention that the jury were given ■to understand that if the road was maintained by Wyandotte county for the purpose of being used and traveled by the public generally as a part of the public highway system within the township, the township would be liable. No explanation is offered as to how instruction No. 4 came to be given. We are disposed to regard it, however, as not prejudicial to the defendant. The allegations of the petition were sufficient, we think, to charge that the road from Bonner Springs to Loring was a township road. It alleged that there was within the limits of the township this road, and that it had at all the times mentioned been maintained by the township. As already stated, there was, in our opinion, no testimony to show that it was a county road, or that it was maintained by the county; and the plaintiff was not contending that she could recover against the township if the road was a county road or maintained by the county.
Complaint is made of other instructions, particularly No. 7, which reads:
“The notice required by the statute means actual notice of the defects complained of as causing the injury. And, if the road in question was defective, as charged by plaintiff and had been so for more than five days prior to the accident, and the jury believe from a preponderance of the evidence that the township trustee had actual notice of the defective conditions at the place in question for at least five days before the accident to plaintiff; or that the trustee had actual notice for said length of time of the existence of such conditions of the road as would necessarily lead the trustee in the exercise of his faculties to logically conclude and know that the continuance of such conditions would probably result in caving or giving away of the road and injury to persons using the road while exercising due care for their own safety, then you should find for the plaintiff upon the question of whether or not the trustee had the five days’ notice required by the statute.” '
We have italicized the portion of the instruction which the defendant insists permitted the jury to find against the township if they believed from the evidence that the township trustee had only constructive notice. In considering the effect of the instruction, it is proper to consider also instruction No. 8, which reads:
“If the township trustee had knowledge for at least five days prior to the date of the accident that the road in question was cut away and undermined by the action of water and the elements and that the result of such action of the elements and water would be to make the road defective and unsafe for users thereof in the exercise of due care, then you may, if you so believe from the evidence, find that he had actual notice of the defect.”
We think the instruction is not open to the criticism suggested. In the defendant's brief it is said:
“It is one thing to have actual knowledge; it is another thing to have knowledge of some other fact that might eventually suggest investigation. That the trustee did know is one thing; that in the exer cise of his faculties he would logically conclude that the defects complained of existed is something which is entirely different.”
In addition to the fact that the jury were expressly told that the trustee' must have actual notice of the defects complained of, the portion of the instruction objected to goes no further than to charge that if he had actual notice for five days before the plaintiff’s injuries, of the existence of such conditions in the road as would necessarily lead him, in the, exercise of his common sense, “to logically conclude and know” that the continuance of such conditions would probably result in the road caving in, then he had actual notice that it had been undermined. In the most recent case upon the necessity of showing actual notice, in place of constructive notice (Wagner v. Edwards County, 103 Kan. 719, 176 Pac. 140), it was said:
“Actual information may be implied, when the principal has at hand means of information which he can and ought to use” (p. 727);
and in Mosier v. Butler County, 82 Kan. 708, 109 Pac. 162, where a person was injured by reason of the giving way of a defective guard rail on the approach to a bridge, it was said that if the chairman of the county board “had knowledge of the condition of the guard rails, and that they were unsafe, as he testified, he had notice within the meaning of the statute” (p. 710), and that it was not necessary for the plaintiff to sho¡w that the chairman had knowledge of the defective condition of the railing at the exact spot where it gave way.
In Sims v. Williamsburg Township, 92 Kan. 636, 141 Pac. 581, an instruction using the following language was , approved :
“The conditions being such that injury to users of the highway was 'reasonably and naturally to be anticipated, .actual knowledge of the conditions obtained by the township trustee by personal observation while repairing the road constituted notice of defect.” (Syl. ¶1.) ■
In the opinion in that case it was said :
“To those upon whom rested the duty of keeping the highway free from defects the conditions themselves fairly spelled danger, and knowledge of the conditions was knowledge of a defect in the road.” (p. 639.)
There was evidence showing that the trustee had been notified by the assistant road overseer and others of the fact that the roadway at the place where the plaintiff was injured had been undermined and cut away by the action of water in the ditch. It is true that some of the witnesses admitted that at the same time they, told him that the road had narrowed down and was dangerous on account of being narrow. In the course of time the roadway had washed and narrowed down from one 35 or 40 feet wide to one less than 10 feet, and this left a dangerous condition which it was natural for those complaining to the trustee to mention. The fact that they called his attention to other defects in the highway at the same time would not destroy the effect of the notice.
It is urged that the 11th and 19th instructions took away from the jury the question whether the road was a county or a township road, and charged as a matter of law that it was the duty of the township at all times to maintain the road in a reasonably safe condition. Of course, in its last analysis, the question of whether it was a county or township road was one of fact, but it is hardly conceivable that the court could have committed .error in instructing on this question in view of the evidence which was all one way.
Except for the error in instruction No. 4, which we must regard as nonprejudicial, we discover no error in the instructions given, and as they covered the issues fully, there was no error in refusing the instructions which the defendant asked.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff seeks to foreclose a mortgage on account of the nonpayment of a coupon note for $270. The defendant pleaded payment of the note. Judgment was rendered in his favor, and the plaintiff appeals. The assignments of error are as follows:
“1. The court erred vu refusing to sustain the motion to set aside the verdict and render judgment for the plaintiff.
“2. The court erred in overruling plaintiff’s motion for a new trial.”
An analysis of these assignments of error and of the argument to support them establishes that the plaintiff’s contention is that the evidence did not prove that the note was paid. There was evidence which tended to show that defendant Edward Schalansky had bought real property of the plaintiff, Henry Schalansky, for which Edward Schalansky paid $2,000 in cash and executed a second mortgage for $9,000; that the coupon note sued on represented interest on the $9,000; that when the sale was made a tenant was in possession of the land; that to give Edward Schalansky possession of the property -it became necessary to purchase the rights of the tenant; that this was done by Henry Schalansky and Edward Schalansky each agreeing to pay $75 to the tenant; that Henry Schalansky, not having the money to pay his $75, agreed with Edward Schalansky that the latter should pay the $75 for the former and receive credit for the same on the first coupon note; that it was agreed that a note which the tenant had given Henry Schalansky for pasture rent, amounting, interest and principal, to $95.71, should be delivered to Edward Schalansky; that this was not done and Edward Schalansky did not receive the money on the note; and that Edward Schalansky paid $99.29 to H. A. Royce of Kirwin, Kan., at whose office the interest coupons were to be paid. The total of these items was $270, the amount .of the note sued on. From that evidence the jury determined that the note had been paid. The verdict was supported by the evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to cancel a deed and to quiet the title to property conveyed by a mother to her son.
Some years ago, Jane Graham, an elderly woman, found it necessary to secure a decree permitting her to live apart from her husband and allowing her a division of their property. The real estate in controversy here was separately decree to her. Through fear that her husband might undertake to sell this particular property, shé conveyed it to her son. One of her purposes at the time was to place it beyond her husband’s reach, but she also, at that time, assumed that she might die before her husband, and she apparently intended that her son should hold the title for her use during her lifetime and at her death divide the property (in some suitable way) in three parts, between his sister, his brother, and himself.
Later the old lady’s husband died, and she commenced this action against her son, charging misrepresentation and fraud on the part of her son in the procurement of the deed from her, and also—
“That she executed a deed to him without consideration, believing the facts related by the son to be true; and that it was understood that while the deed was actually executed, that the equitable title should remain in the plaintiff; that she had remained in possession ever since; that it was not the intention of the parties that she should part with the title, but that she should retain the equitable title and place only the legal title in the defendant, R. H. Graham, jr., for the purpose aforesaid; that' her husband had since died, and on request the defendant, R. H. Graham, jr., had refused to reconvey.”
The son’s answer denied the fraud alleged; alleged that his mother was concerned as to; whether her husband would inherit the property if she died first; and that she informed him—
“That it was her desire that her real estate should be divided between her children, R. H. Graham, Jr., John Graham, and Mima Reddy, and she requested defendant to accept a deed for said property for their benefit, and it was then orally agreed between plaintiff and R. H. Graham, jr., with consent of John and Mima (brother and sister) that the defendant would receive a deed to said property; that plaintiff would receive, after deducting expenses, the rents and profits, during her natural life and in case of sale, during her lifetime, after actual expenses advanced by defendant if any, he should divide the remainder equally between himself and brother and sister. And in case of death and the property not sold, a like division be made. That pursuant to said agreement he accepted the deed and recorded it . That he has caused all rental to be'paid to the plaintiff, and has carried out in good faith his part of the contract and intends so to do. That pursuant to the contract he had paid out on the property, taxes $369.76, plaintiff’s doctor bill $310.56, making a total of $680.48, which had not been refunded.”
While the issues were thus joined, and after the old lady had given her deposition, she died testate, leaving her daughter as residuary legatee and devisee of the property in dispute. The cause was revived, and an amended petition was filed, which merely elaborated the original petition.
At the trial, extended statements of counsel for plaintiff and defendant were made and recorded, and considerable evidence, including the dead mother’s deposition, was introduced.
. Defendant’s demurrer to plaintiff’s evidence was sustained ; and plaintiff appeals.
We are inclined to acquiesce in defendant’s contention, that there was no evidence showing that in accepting the deed the son had practiced any fraud upon his mother. His acceptance of the deed seems to have been made in good faith. He believed, his mother believed, his brother and sister believed, that the father might give the mother some trouble about the property and would get part of it if he survived her. The conveyance was chiefly made in an endeavor to frustrate that possibility. And so the trial court was correct in its ruling on the issue of fraud.
But the pleadings and the evidence disclosed that the deed was a sort of trust, the chief purpose of which was accomplished when the father died before the mother. The retention of the title thereafter served' no urgent purpose of the mother. Perhaps it is true that when the mother conveyed the title to the property to her son she intended for him to divide it in three parts after her death. But surely she might change her purpose; it was still her property. Moreover, there was evidence — lots of it, if the trial court gave it full credence, as it was bound to do as against a demurrer — that the son promised to deed the property back to his mother, that his mother so understood her rights and begged him to re-convey, and that he, equivocally at least, promised to do so. We see no necessity of elaborating on this feature of the case. While no error is discerned in the trial court’s ruling so far as the issue of fraud is concerned, the existence of the trust, which is not denied, although its conditions and terms may be disputed, could not be solved by the interposition of a demurrer to the evidence. If the purposes of the trust have been fulfilled, or if the creator of the trust had a right to terminate or alter it, or to revoke the grant, then a judgment for a re-conveyance or to quiet the title against the trustee would be proper. However that may be, judgment in this case should be rendered on the evidence; not on a demurrer thereto. (The State, ex rel., v. Gerhards, 99 Kan. 462, 464, and citations, 162 Pac. 1149; Mentze v. Rice, 102 Kan. 855, and citations, 172 Pac. 516; Dudas v. Railway Co., 105 Kan. 451, and citations, 185 Pac. 28.)
Reversed and remanded for further proceedings.
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The opinion of the court was delivered by
West, J.:
The defendants appeal from a judgment approving and confirming the final settlement of Lee Baker, executor. The court made findings of fact, of which no complaint is made, to the following effect, omitting those of no importance here. Henry Baker died testate, September 24, 1910, leaving as his heirs his widow, Millie, and his children, Lee, George, William, Minnie Webster, Celia Gentry and Parthena Smith. He died seized of certain land in Leavenworth county on which he and his wife had, in May, 1903, made a mortgage for $1,500 to Sherman Medill, due in five years, tie kept the interest paid up, the last installment being paid May 19, 1910. After his death his widow kept up the payments, the last one being on May 19, 1914. By his will, Henry Baker gave his property to his wife for life and directed that at her death George was to have $1, and the remainder of the estate should be equally divided between the other children. The widow died May 27, 1914, and in January, 1915, Lee Baker was appointed executor. The widow and one or more of the other beneficiaries had occupied the land up to her death, Lee Baker living there with her most of the time. During this time they borrowed various sums on their own credit which were used, some to pay taxes, some to support the widow, and some to improve property owned by the deceased in Oklahoma. After his appointment, the executor borrowed $47.47 of a bank, signing the note as executor. A few days later he borrowed $776.77 in the same way of another bank. These claims were afterwards presented against the estate, and the probate court found that the notes were given for the widow’s maintenance and for keeping up improvements on the farm, and ordered them paid. Celia, Parthena and Minnie moved for a further hearing on these claims, which motion was overruled and no appeal taken. April 10, 1916, the executor filed his first annual settlement, which, after an itemized statement required by the court had been submitted, was approved over the obj ection of the three sisters, who took no appeal. Among the credits allowed the executor in this first settlement was $998.25 to one bank, $818.20 to another, and $1,639.95 in payment of the mortgage already referred to, which was paid September 17, 1915, without being first presented to or allowed by the probate court. March 18, 1918, Lee Baker, executor, filed his final settlement. The sisters filed objections thereto, asserting that the bank’s claim for $818.20 was borrowed without authority of the probate court, and that it was not a proper charge against the estate. Similar allegations were made touching the other bank’s claim for $998.25, and the amount of the real-estate mortgage, but all three claims were allowed. It appears that within a few months after his appointment the executor petitioned for and was granted authority to sell the Kansas real estate for the payment of debts and the charges of administration. Counsel for the defendants, in their brief, say:
“The only questions presented by the record are: Were the claims of the Tonganoxie State Bank, The Farmers & Merchants’ State Bank and the note of Sherman Medill legal demands against the estate, and should the executor be given credit for moneys paid in settlement of them? If the Medill claim was not barred, should the note, on which his claim was founded, have been exhibited and allowed by the court, before it was pai'd?”
They argue that the Medill claim was barred because the statute of limitations was not tolled by the executor’s payment of the interest installments, and that it began to run within two years from the time the executor gave bond. (Gen. Stat. 1915, § 4590.) They say that Medill did hot bring a foreclosure suit, “but looked to the assets in the hands of the executor for the payment of his debts, but he did not exhibit his demand to the executor, and have it allowed by order of this court, as provided by the statute.” Also, that the payments of interest by the executor did not toll the five-year statute of limitations, it having been almost eight years since the death of Henry Baker. Decisions are cited to buttress these arguments. We have examined them all. There is no doubt that when a mere money claim against an estate is sought to be collected out of the personal assets it must be presented within two years after the executor or administrator has given bond. (Gen. Stat. 1915, § 4590.) But the Medill mortgage, like the note, was signed by the deceased and his wife; it was a lien upon the land which was in no wise removed or impaired by the appointment of the executor. When the latter sold the real estate for the payment of debts he had either to sell subject to this mortgage or satisfy the lien out of the proceeds. The general rule is that a mortgage lien may be asserted, without a previous exhibit, against the property. In Andrews v. Morse, 51 Kan. 30, 32 Pac. 640, the failure of the mortgagee to present his mortgage within three years after the granting of letters was held not to preclude him from foreclosure and from subjecting the mortgaged property to the payment of debts. In the opinion it was said:
“The death of the mortgagor did not impair or affect the lien of the mortgage. It did not place the mortgagee who had a lien in the same position as an unsecured creditor, and remit him to the general assets of the estate to satisfy his lien. If he looks to the personal assets in the hands of the administrator for payment of his debt or any part of it, he must then present his demand under the statute. If he fails to present it within the three-year period, he can obtain nothing from the general assets, and is limited to the proceeds arising from the sale of the mortgaged property. An equitable claim like the plaintiff’s is enforceable in the district court, and is not such a demand as the statute referred to contemplates. Neither the presentation of the claim in the probate court nor the failure to present it precluded the foreclosure of the mortgage lien until the mortgage debt has been paid or extinguished.” (p. 32.)
It was held that failure to present within three years would prevent the mortgagee from obtaining judgment for any deficiency that might remain after exhausting the mortgaged property, but did not affect his rights to foreclose. In Perry v. Horade, 63 Kan. 88, 64 Pac. 990, a father and mother executed a mortgage on the homestead to secure a note, and before its maturity the father died. The mother and children continued to occupy the homestead. With products therefrom she made payments and kept the note alive. Action of foreclosure was brought more than five years after its maturity, and it was held that the mortgage was not barred as to the minor children, but was enforceable against the whole of the land, including their undivided half. It was said in the opinion that the minors were not parties to the mortgage, but they inherited the land subject to the lien of the mortgage; that the death of the husband did not diminish the amount of the debt nor restrict the lien of the mortgage to a half or any other fraction of the land described in the mortgage. In Jackson v. Longwell, 63 Kan. 93, 64 Pac. 991, a husband and wife executed a mortgage to secure a note against property owned by the wife. The note became barred as to the wife by the statute of limitations, but not as to the husband. It was decided that the wife’s land could be sold to pay the judgment rendered against the husband, and it was said that, the statute having run in her favor, she was discharged from personal liability on the note, but that this in no way released her, and her property should be subject to her husband’s debts. It was held in Smith v. Kibbe, 104 Kan. 159, 178 Pac. 427, that the plaintiff was not barred from foreclosing his mortgage because of the failure to present his debt to the probate court as a demand against the estate of the testator within the period of two years. It was said:
“The liability of the testator and of the estate was a continuing one, which could be enforced at any time before the mortgage debt became barred under the ordinary limitations prescribed by the code.” (p. 165.)
In Bank v. Grisham, 105 Kan. 640, 185 Pac. 54, paragraph 11 of the syllabus is in these words:
“The holder of a secured debt need not exhibit is as a demand against the estate of his debtor, if he is content to look only to his security for payment, and not to the general assets of the estate.”
There is nothing to indicate that Medill looked to the general assets for payment of his mortgage or any part thereof, and the fact that the petition to sell the real estate was grounded on the claim that it was necessary to pay the debts and expenses indicates that the general assets were nil.
We hold, therefore, that the mortgage was not barred and the payment thereof was properly approved.
As to the claims of the two banks, it is to be observed that they were both allowed by the probate court over the opposition of the defendants, and from this order no appeal was taken. These must be held, therefore, to have passed into history by the route of final adjudication. The statute provides that—
“The probate court shall have jurisdiction to hear and determine all demands against any estate; and a concise entry of the order of allowance shall be made on the record of the court, which shall have the force and effect of a judgment.” (Gen. Stat. 1915, § 4571.)
“In this state probate courts are courts of record, and possess full, ample, and complete jurisdiction of all matters connected with the settlement of the estates of deceased persons. . . . All their allowances of demands against the estate, all their settlements with administrators, indeed, all their official acts requiring the exercise of judgment and discretion, are, in their nature, judicial determinations, and are binding upon all the: property of the estate, and upon any interest in such property that any person may have as heir, devisee, or legatee. The settlements with administrators especially come within the jurisdiction.” (Shoemaker v. Brown, 10 Kan. 383, 393.)
“Though a court of limited and special jurisdiction, the judgments of a probate court are as authoritative and conclusive as those of a district court, or any other court of general jurisdiction.” (Marshall’s Kansas Probate Law, § 27.)
While it is doubtful whether the matter is not foreclosed by the quoted expressions from the brief of the defendants’ counsel as to the only questions presented by the record, considerable stress is sought to be laid on the change consented to by the widow and executor that the Medill note should bear 7 per cent interest per annum from May, 1912, whereas it was originally drawn to bear 6 per cent. Of course, the widow could not, during her life, object to the change, because she voluntarily made it. The three children who made this defense might possibly complain because of the increased rate of interest as affecting their final distributive shares, but they cannot successfully contend that this was such a fraudulent alteration as to avoid the note. In fact, no fraud was sought to be shown, and no claim is made on account of the slight difference which the changed increased rate of interest would make to these heirs, and no further discussion of this point is necessary.
For the reasons indicated, the judgment is affirmed.
(Filed March 9, 1920.)
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to compel the state auditor to audit certain vouchers and to draw warrants therefor on the treasurer for $3,666.64, the balance of the salary of the plaintiff as hotel commissioner of the state of Kansas. The plaintiff was appointed to that office on the 19th day of Juné, 1915. He qualified under that appointment and continued to act thereunder until November 1, 1917. On May 1, 1914, he had been appointed assistant chief food and drug inspector and acted under that appointment until February 1, 1917, during which time he received the salary provided therefor by law. For his services as hotel commissioner, beginning with January 1, 1916, and ending with September 30, 1917, the plaintiff received $50 per month, under an agreement made by the plaintiff with the governor, the secretary of the state board of health, and the state auditor. The vouchers for his services as hotel commissioner, presented to the auditor for allowance, contained the following: “In accordance with agreement of board of health, governor, and state auditor, at the rate of $50 per month.” These vouchers were allowed, warrants were drawn therefor, and they were paid by the state treasurer. The plaintiff filed with- the auditor vouchers for the remainder of the salary provided by law for hotel commissioner from the time of his appointment until he ceased to .act as such. The auditor refused to allow these claims or to issue warrants therefor.
On October 3, 1917, the state treasurer had in his hands money known as the hotel inspection fund, amounting to $6,269.07, and there were subsequently turned over to him ■collections for October, 1917, amounting to $320. The plaintiff alleges that at the time this action was commenced, December 17, 1919, the treasurer had in his hands belonging to-the hotel inspection fund more than enough to pay the plaintiff’s claim. Immediately after this action was commenced, the treasurer was directed to hold the money belonging to that fund until the termination of this action.
Section 4069 of the General Statutes of 1915 fixes the salary of the assistant chief food and drug inspector at $150 a month; section 5082 fixes the salary of hotel commissioner at $2,000 per annum, and traveling expenses. These salaries are fixed by law; they cannot be changed by any arrangement made between officers of the state. (Notes, 36 L. R. A., n. s., 246; L. R. A., 1917 B 190; 42 L. R. A., n. s., 121.)
Unless prohibited by constitutional provision or statutory law, one person may hold two offices if their duties are not incompatible with each other. (Abry v. Gray, 58 Kan. 148, 48 Pac. 577; Dyche v. Davis, 92 Kan. 971, 142 Pac. 264; 29 Cyc. 1381; 22 R. C. L. 412.) And in the absence of such prohibition, if one person holds two offices, the performance of the duties of either of which does not in any way interfere with the duties of the other, he is entitled to the compensation fixed by law for both. (Dyche v. Davis, 92 Kan. 971, 142 Pac. 264; Notes in L. R. A., cited above; 22 R. C. L., 535; United States v. Saunders, 120 U. S. 126.) There is no prohibition against one person holding the office of assistant chief food and drug inspector and that of hotel commissioner. No incompatibility between the two offices is shown to the court or is perceived by it. The governor appointed the plaintiff hotel commissioner for the reason that as he was the assistant chief food and drug inspector he could easily perform the duties of the office of hotel commissioner.
At the time the appointment was made there was no money with which to pay the salary of a hotel commissioner. That was one reason for the appointment of the plaintiff. He soon collected funds out of which his salary could have been paid.. Under the rule in the Dyche case, the plaintiff was entitled to the full compensation fixed by law for his services as assistant chief food and drug inspector and for his services as hotel inspector. It follows that a peremptory writ of mandamus should issue.
Judgment is rendered accordingly.
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit is a consolidation of two actions, one originating' in Crawford county to set aside a will, and one in Ellis county to set. aside certain deeds.
The litigants are the heirs of the late Henry Hoff, senior, who settled in Ellis county and who lived and thrived there as a farmer for many years, and who in his last years resided in Crawford county. Hoff died in 1916, leaving a large family of sons and daughters and grandchildren. Sometime before his death he made a will which bequeathed most of his property to the defendants. About that time and at other times he executed deeds to some of his Ellis county lands to one of his sons, Peter Hoff, a defendant here, and also surrendered to Peter a considerable amount of funds in bank and other personal property.
The Crawford county action was transferred to the district court of Ellis county, and consolidated with the action there pending.
One of the petitions alleged that at the times when the will and codicil of Henry Hoff were executed, the decedent—
“On account of his advanced age, feeble condition of health and habitual intoxicated condition, was so weakened, infirm, deranged and impaired in body, mind and memory as to render him incompetent to fully and sufficiently know and understand the nature of his said alleged will and codicil. ...
“That said Henry Hoff ... at the time of the execution of said will and codicil . . . was under the influence of intoxicating liquor and was particularly subject and susceptible to the will, wishes, advice, suggestion, influence, persuasion, domination, direction and control of the defendants, particularly the defendant Peter Hoff, who in conjunction with the other defendants . . . formed and entertained the design to cooperate and act together in unduly influencing, etc., the said Henry Hoff to execute the said will and codicil, and pursuant to such design . . . the decedent . . . was by said defendants, and particularly the defendant Peter Hoff, persuaded and induced, irrespective of the active exercise and independent assent of his mind, will and judgment, to make and execute the will and codicil in question.”
The petition also alleged that during the last few years of decedent’s life, the principal defendant, Peter Hoff, had encouraged his father in a course of licentiousness, and by falsehoods had prejudiced him against the plaintiffs:
“That prior to the execution of said will and codicil decedent was charged and about to be prosecuted for illegal sale of intoxicating liquor and had been sued or was threatened with suit by one William Kauderer in Crawford county, and because of all of said suits or threatened suits and other trouble and disputes and contentions with housekeepers as aforesaid decedent was in such a frame of mind (which state of mind was aggravated by the excessive use of intoxicating liquors) that he feared he would lose all or a portion of his property, and that decedent was given aid and encouragement by said Peter Hoff with intent and purpose in so doing to cause decedent to become more susceptible to the inducement and persuasion of said Peter Hoff, and because of such aid, association, encouragement and sympathy given decedent in the course of conduct above stated said Peter Hoff occupied a position of trust and confidence towards his father and advised him relative to matters of business, and decedent to a great extent relied upon such advice and counsel.
“That immediately prior to his death decedent had $2,000 in cash and wheat and other personal property of value of $3,900, and was owner of three quarter sections of land (which is described) in Ellis county, Kansas.
“That prior to his death said decedent turned over said cash to said Peter' Hoff and also executed and delivered to him deeds to said land; that said deeds and cash were procured by said Peter Hoff by means of false and fraudulent statements and representations and false promises to reconvey made by said Peter Hoff to his father, and said decedent was induced and persuaded thereby to make said deeds and would not have done so but for such false and fraudulent promises and statements and agreements to reconvey made to Mm by said Peter Hoff; that after the execution of said deeds said Peter Hoff made repeated promises to decedent to reconvey at any time the latter desired; that all of said promises were made by said Peter Hoff with no intention of fulfilling same, but with fraudulent intention and purpose of obtaining and keeping said property for Ms own benefit and in furtherance of his schemq to defraud decedent of his property and also in the event of death of decedent his estate and heirs, including plaintiffs.”
The petition to set aside the deeds to the Ellis county lands contained recitals very similar to those in the “will” case, and alleged—
“That in the exéeution of the aforesaid deeds the decedent did not intend to convey to the defendant Peter Hoff an absolute fee title to the property described therein, as said deeds would indicate, but only to pass a record title to said lands so as to make it appear that decedent had no property subject to attachment or execution by one desiring to collect any judgment or other debt from said property and to prevent the satisfaction therefrom of any claim which might be successfully urged against him and to discourage the bringing of any contemplated suit by any party against him; that the intention of the decedent was at all times to retain the equitable and legal title to said property, and simply to make it appear to others that he was without property and was not the owner of the property described in said deeds, which desire and intention to so convey said property was caused, induced and brought about by the fraudulent representations, assurances and promises of the said Peter Hoff as aforesaid.”
Issues were joined, and the cause was tried without a juryi The district court made a general finding for plaintiffs, and also found—
“That at the time of the execution of said deeds and each of them arid of the execution of said will and codicil that the deceased Henry Hoff, sr., did not have sufficient mental capacity to legally make and execute either of said instruments; that the execution of said deeds and each of them and of the said will and codicil and each of them was procured by the undue influence practiced upon the deceased by the defendant Peter Hoff, and that because of such undue influence and the mental incapacity of deceased, and the further lack of consideration for said instruments, that each of said instruments should be set aside and held for naught.”
Defendants appeal, urging various errors. A comprehensive abstract of 180 pages is presented, which the court has perused with painstaking care. But we may be permitted to observé that this abstract contains a great surplus of evidential matter which is of no importance on appeal. The case turned al together on questions of fact upon which there was a plethora of evidence, part of which fully sustained the general finding for plaintiffs, and part of which would quite as readily have sustained .a general finding for the defendants if the trial court. had given greater credence to the evidence favorable to them; with that phase of the controversy, however, this court has little to do. (Kahm v. Klaus, 64 Kan. 24, 67 Pac. 542; Perkins v. Accident Association, 96 Kan. 553, 555, 152 Pac. 786.)
In Brecheisen v. Clark, 103 Kan. 662, 176 Pac. 137, it was said :
■“Turning, as this lawsuit did in the trial court, almost wholly on the determination of the facts in issue, it naturally provoked a spirited contest and furnished an unusual opportunity for counsel skilled in the art of cross-examination. And this opportunity was used with such cleverness and penetration that a reviewing court with nothing but the printed record before it might well doubt the correctness of the jury’s verdict. But the principle is thoroughly settled that the determination of the issuable facts is no concern of an appellate court, provided there is sufficient evidence upon which the verdict and judgment can be based. (Burlington v. Wagoner, 100 Kan. 10, id. 100 Kan. 439, 164 Pac. 1057; Wideman v. Faivre, 100 Kan. 102, 163 Pac. 619.) ” (p. 663.)
(See, also, Lumber Co. v. Workman, 105 Kan. 505, 508, 185 Pac. 288.)
But it is asserted by defendants that the evidence wholly failed to prove that undue influence had been exercised upon the decedent. The evidence in the record shows — and the trial court obviously believed it — that the defendant Peter Hoff began to secure an ascendency over the mind and conduct of his father during the last few years of the old man’s life. The father’s mind had weakened; his morals had deteriorated; and he had become alternately moody and violent. Peter seemingly gave countenance to his father’s irregular conduct in the employment of housekeepers, while the defendants disapproved of such conduct. Although some of the defendants had been very dutiful to the father in their minority, and although Peter had evidenced no peculiar merit as a son, he had gained an ascendency over his father. Peter directed his father’s conduct in the making of the will. Peter brought his father to the scrivener and told the latter what to put into the will; he took charge of the will; he brought the will back to ' the scrivener, in the absence of the father, to have a codicil written to disinherit his sister; and he took the codicil away with him. There is ample proof that the will was drawn as Peter dictated, and very slight evidence, if any, that his father had anything to say or to do about it except to sign it. There is no pretense that the father selected the witnesses or that they signed the will at his request. Moreover, there was evidence that Peter told one of the plaintiffs that—
. “He was going to have the will made; was going to get his father to make a will. He (Pete) said he was going to have us all put in, but Henry or Charley. He said that he should have more than the rest of them because he was Writing letters for his father. He told his father he wanted that will made. The reason why Pete wanted a will [was] his own statement, because he (the deceased) would get in trouble with his housekeepers, so they couldn’t get the property and he (Pete) wouldn’t get anything. Pete had planned to go to Hays with his father on Saturday but it rained and Pete was mad. He said he [decedent] would fool around till the housekeepers would get him in trouble, then they would get the property and he wouldn’t get any. . After making the will, Pete said, he had all of them in but Henry and Charley. He said he fixed it. The scrivener Harry Freese testified that Pete and his father came to his office and Pete said, We have come in to have Henry Hoff’s will drawn.
“Q. Well, now what do you remember that Pete said? A. Well, Pete went on and told us who were to have this and who were to have that and in regard to the property, and in regard to the residue.”
The trial court could well find, on this evidence, that it was the dominant mind of Peter which gave shape to those transactions, that "Peter was the person actively concerned in the making of this will and codicil, and not the free agency of his father, and if this evidence was believed it met all the requisites to establish undue influence. (Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, and citations.)
Defendants cite the cases of Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, and Carmen v. Kight, 85 Kan. 18, 116 Pac. 231, to support their argument that the presence of Peter when the will was written and executed raises no presumption of undue influence. But the case we have does not rest on such slight circumstances as the mere presence of Peter. Moreover, Sellards v. Kirby concedes that the presence of a beneficiary while a will is being prepared may have its significance, especially when the testator has no independent advice.
“ ‘But the safer and more correct statement of the rule is that such a condition of affairs creates no presumption, but merely raises a sus picion which ought to appeal to the vigilance of the court. ... It is a fact to be considered with other facts. It is undoubtedly a suspicious fact, but its weight depends, not solely upon its character, but upon the facts and circumstances with which it is connected.’ [Underhill on Wills, § 137.]” (Sellards v. Kirby, 82 Kan. 291, p. 294.)
(See note in 28 L. R. A., n. s., 270 et seq.).
Touching the making of the codicil, the scrivener testified:
“Q. How do you remember about when that talk was? A. The codicil will show us the exact date. He [Peter] came into my office a few days previous to that and asked how a codicil could be put to that will and I told him he would have to get the original will and put it on the will and as his father was not in Ellis county, the will would either have to be taken down to him or sent down to him where he was in southeast Kansas, and have to be there signed and executed in the presence of two witnesses. .... He returned in two or three days with the will . I next saw him at the time when I drew the codicil. He told me he had a piece of paper for memorandum and he told me just what his father wanted to do.
“Q. Now, who was present when you drew that codicil? A. Nobody but Pete Hoff.
“Q. Who was present when this (deed to half section) was written? A. Peter Hoff.
“Q. Who told you, if anyone, what to put on this piece of paper? A. Peter Hoff.”
A persuasive argument is made by defendants’ counsel to the effect that the decedent was not a person easily influenced; they quote evidence of statements made by the testator which would tend to show that the will expressed his independent intentions touching the disposition of the property; they give plausible reasons why the testator might have disinherited the plaintiffs, and make a considerable showing that the testator had always been on good terms with the recipients of his bounty; but the significance of that argument is now lost since it did not shake the credence given by the trial court to the preponderating proof offered by plaintiffs.
“The judgment must stand in spite of any conflict of testimony or contradictory inferences, if there is substantial evidence fairly tending to support the decision of the trial court.” (Fairbank v. Fairbank, 92 Kan. 45, 47, 139 Pac. 1011.)
Touching the conveyance of the Ellis county lands to the defendant Peter Hoff, one quarter was so conveyed jat the suggestion of the scrivener of the will, as being a), better method of giving the land to Peter than to bestow it upon him by the will. This was assented to by Peter and his father. The scrivener testified:
“I said, in drawing this, that they never, that they should not put it of record until after Henry’s death and to hold that and put that away with this will and then at that time they could put it of record and Henry said and Peter said at that time that that was all right and satisfactory.”
Touching the later conveyance of a half section of land to Peter, part of the evidence tended to show that this land was deeded to Peter because of his father’s relations with some of his housekeepers and because of the possibility of the father being mulcted in damages for an assault on one Kauderer. Defendants say that this was in fraud of creditors, and that the conveyance must stand, and they cite Crawford’s Adm’r v. Lehr, 20 Kan. 509, 512, Robinson’s Executors v. Blood’s Heirs, 64 Kan. 290, 67 Pac. 842, and Durand v. Higgins, 67 Kan. 110, 72 Pac. 567. The rule of law, although sound, does not fit the facts. There were no creditors from whom decedent’s property was to be concealed. Peter knew of his father’s relations with the housekeepers, and he impressed his father with the fear that complications with some of them might arise.
Where there are no actual creditors to be defrauded, and there is only a mental purpose to hinder imaginary creditors, equity will relieve against transfers of property without consideration. (Day v. Down, 51 Iowa, 364; Harper v. Harper, 85 Ky. 160, 7 Am. St. Rep. 583; Gunderman v. Gunnison, 39 Mich. 313; Prewett v. Coopwood, 30 Miss. , 369; Kleeman v. Peltzer, 17 Neb. 381; Rivera v. White, Guardian, 94 Tex. 538.)
In Holliway v. Holliway, 77 Mo. 392, a brother induced another brother to execute certain conveyances by falsely representing that a woman was about to institute a breach of promise suit and might recover judgment. The court cited an earlier Missouri case, and set aside the conveyance, saying—
“To give instruments executed under such circumstances countenance and support, would, in all cases where confidential relations exist, make the weaker party a victim to the rapacity of the stronger, and allow him to whom interests are confided for preservation and protection to appropriate them to his own use.” (p. 396.)
There is a letter in the record written by Peter in which he acknowledged that he held the half section in trust and prom ised to reconvey. The deed to the half section was prepared at Peter’s request, in the absence of his father, and at the same time Peter caused the codicil of the will to be prepared, and it and the codicil were executed at the same time. There is sufficient evidence in the record to sustain the trial court’s judgment as to the invalidity of both deeds. Viewed as testamentary documents, they are subject to the same infirmity as the will and codicil. Viewed as gifts inter vivos, the burden was on Peter, owing to his confidential relationship, to show that he did not obtain them through undue influence, and he failed to sustain that burden. (Smith v. Smith, 84 Kan. 242, 114 Pac. 245; Coblentz v. Putifer, 97 Kan. 679, 156 Pac. 700.)
The trial court found that at the times when the will, codicil and deeds were executed the decedent was'not only subjected to undue influence, but also that he did not have sufficient mental capacity to make and execute either of said instruments. There was evidence to support that finding. It was shown that the decedent, who had formerly been a man of more than ordinary strength and vigor and of good business ability, had in his old age become grossly addicted to intoxicants, and in his last years drank much liquor night and day; he became an almost constant drunkard; he became violent to his family, frequently threatening to kill them and to kill himself; he parted with his wife, advertised for housekeepers and frequently changed them; he conceived an unreasonable hostility to some of his children, including one of his sons who had long been faithful and helpful to him, and became subservient to another son, Peter, who had shown no unusual filial devotion to him. His physician testified:
“He had trouble which was a kidney albumenura and an aortic trouble and as a consequence, he would have suppression of urine, and of course, that would interfere with his intellect. He was sluggish. He would wake up bright and I could not detect that he was dull at all but if that condition developed as it did two or three times, you could tell at once that he was off. . . . His physical condition was very poor, when he first came to me. ... I told you (the attorney) that I would judge from the diagnosis of his physical condition that he was an excessive drinker of alcoholic liquors, which had continued a long period of time, which had impaired or weakened'his physical or mental condition. . . . He was erratic and extremely nervous. . . . When he had these sluggish spells the natural conclusion is that he would be less likely to comprehend what was going on, when he was in that condition. His memory was not good when he had those spells. His physical condition and the diseases from which he suffered had some effect upon his mind. He had a weakened and feeble mind. That condition continued nearly all the time that I treated him. . . . His trouble had been in existence in my judgment and had gradually been growing from worse to worse from the least calculation two or three years. He showed symptoms of extra nervousness and deterioration of memory during these sluggish intervals.”
Stress is laid on the trite legal proposition that an habitual drunkard may make a will; but when all these other enumerated facts and incidents are also considered, we are bound to hold that the trial court’s finding of decedent’s want of sufficient testamentary capacity is supported by the evidence.
Counsel for defendants raise the point that the findings of undue influence and want of mental capacity to make the testament and to execute the deeds are inconsistent, and they cite Gwin v. Gwin, 5 Idaho, 271, 279, in support of that contention. We have read the Idaho case, and have examined the authority which is cited in its support. That authority is 27 A. & E. Encycl. of L., 1st ed., 497, where it is said:
“Undue influence is quite distinct from testamentary capacity. .The former presupposes the existence of the latter.
“Capacity is the power to act. It depends solely upon the mental soundness of the actor. It exists whether the act stands in law or not. Undue influence affects the will of one having testamentary capacity, and. invalidates what would otherwise be operative. Were there no capacity, there could be no will, and the question of whether or not there was influence would be an idle one. Undue influence and weakness of mind are frequently found together, but they have no necessary connection with each other. They should not be confused; neither should influence and total incapacity be confounded.” ■
The text quoted cites Thompson v. Kyner, 65 Pa. St. 368, which is not quite so extreme. It reads:
“The learned judge, proceeding to the facts of the case, said, ‘unless, therefore, there was some evidence tending legitimately to prove that some fraud had been practiced upon the testatrix at that time . . . or that some misrepresentation had then been made, or that some physical or moral coercion had been employed, such as to destroy her free agency, the court erred in submitting to the jury the question, whether undue influence had been exerted. . . . ' Neither moral nor physical constraint is to be inferred from mental weakness alone. That undue influence which suffices to destroy an alleged will, is distinct from weakness, and has no necessary connection with it.’ ” (p. 379.)
This court has no difficulty in discerning that undue influence and want of mental capacity have no necessary relation to each other. But the reasoning of the Idaho case is too subtle. While it may be conceded that one who has no mind to be influenced cannot be subjected to undue influence, yet one who has a feeble mind, a defective will, a confused intelligence and deficient understanding, may be highly susceptible to influence, due or undue. In Mooney v. Olsen, 22 Kan. 69, the attack on the will was grounded both on undue influence and want of sound mind and memory. This court recognized no inconsistency in the two distinct assaults on the will. In discussing that case, Justice Brewer said:
“The testatrix was, at the time of making the will, very much debilitated from loss of blood, and was in what the attendant physician called a semi-comatose state. The preparation of the will lasted some hours, although, when written, the instrument itself fills scarcely a page. As she roused from a state of stupor, she was asked to whom she wished to give certain property, and her answer noted. It would seem as though, after nearly every answer, she became insensible, and was rallied only by the use of stimulants. When her answers had all been noted in this way, the will was placed in form, and her signature affixed, though she was so weak that, after writing her first name, she swooned, and had to be rallied again by the use of restoratives before finishing her signature. Of course, there will always be a doubt whether a will executed under such circumstances really expresses the deliberate purpose and desire of a testator in the distribution of his property; yet mere feebleness and weakness like hers do not, of themselves, prove fraud or undue influence —they merely show a condition easily accessible to undue influence. The power of resistance is weakened, and the mind yields to fear or pressure which ordinarily would make no impression.” (p. 74.)
The finding in the present case is that the decedent did not have sufficient mental capacity; it was not a finding of total mental incapacity. In 1 Jarman on Wills, 6th ed., page 66, it is said that although there is no necessary connection between undue influence and partial incapacity, they are apt to be found together. The books are full of cases where wills have been set aside for want of testamentary capacity. How came such wills to have ever been made? Undue influence or similar fraudulent wrongdoing on the part of some intermeddling self-seeker is commonly and most probably the correct explanation. The court holds that the trial court’s findings of undue influence and want of “sufficient mental capacity” are not inconsistent.
Various minor matters urged by defendants have been carefully considered, but nothing further can be noted which would justify further discussion.
We can but repeat that this is a fact case, one which could have been decided either way upon the evidence. However, no reversible error is disclosed in the record, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Porter, J.:
The action was to recover damages for the failure of defendant to deliver wheat purchased on contract. The petition alleged that on July 12, 1916, plaintiff purchased of defendant by an oral contract 5,000 bushels of wheat to be delivered at Grantville within 30 days as the parties could procure cars in which to ship the wheat, and that plaintiff was to pay defendant $1 per bushel; that defendant delivered under the contract 1,952.64 bushels of the wheat, but failed and refused to deliver the rest of it. A recovery was sought for the difference between the market price of the wheat at the time of the failure to deliver, and the contract price. The answer was a general denial. The jury returned a verdict for defendant, and judgment was rendered against plaintiff for costs, from which plaintiff has appealed.
The plaintiff testified that some time after defendant had delivered the first two cars of wheat, and on the 20th day of July, he drove down to defendant’s place, told him he had a car ready and would be glad to have him load up the wheat, and that defendant said he did not have time to load it, “Just positively couldn’t load it at that time”; that again on the 24th of July he was at Grantville looking after wheat he had bought from another party. He had a large car “set in” that had room in it for 800 bushels more, and he hunted up the defendant and asked him if he would not fill the car with his wheat, as it was all the same grade; that defendant said he could not do it at that time as he had all the teams hauling and they had just commenced threshing; and that plaintiff was obliged to ship the car partly loaded because of defendant’s refusal to deliver wheat. He further testified that on the 19th or 20th of July the market price of wheat commenced to advance and had advanced 10 to 13 cents a bushel and continued to advance until after September; that on the 28th or 29th of July he called the defendant by phone and insisted on his loading a car the plaintiff had ready, but that defendant said it would be impossible for him to do so, that his work was so arranged he couldn’t; that about the 9th of August, after having sent the defendant a letter requesting the delivery of wheat and receiving no answer, he called him again by phone and asked if defendant had received the letter, and that defendant said he had, and plaintiff asked him about the wheat, and in reply defendant said, “I am not going to deliver it.” The plaintiff testified that at the time the contract was made, both parties knew that cars were very scarce and hard to get; that this was one reason defendant wanted longer time, as well as because his machine had broken down; that plaintiff told the defendant he had been getting cars from the railway company through solicitation and said he would do all he could to get the cars, and if cars could not be obtained he would take the wheat piled on the ground at Grantville, and that defendant said that was all right.
With their verdict, the jury returned answers'to a number of special questions. They found that the plaintiff entered into a verbal contract with the defendant for 5,000 bushels of wheat to be delivered at Grantville within 30 days from July 12,1916, providing plaintiff furnished cars; that plaintiff failed to furnish the cars within that time, and that defendant never agreed or consented to an extension in the time of delivery. The jury found' that the market value of the same grade of wheat at Grantville August 12, at the expiration of the 30-day period, was $1.41,'and that on September 8 the market price was $1.57. The defendant testified that the wheat which he contracted to sell to the plaintiff at $1 per bushel and refused to deliver, he afterwards sold at prices ranging from $1.70 to $1.91 per bushel. The jury were asked whether the plaintiff notified the defendant at the time he made the contract that if cars could not be obtained he would accept the wheat piled on the ground. Their answer was, “Piling of the wheat on the ground was not considered as part of the contract.” The defendant admitted on the trial that at the time the contract was made the plaintiff said to him, “If you can’t get cars I will accept it right there in Grant-ville, piled on the ground if necessary, and pay for it.”
The court instructed the jury that it was for them to determine, first, what was the contract between the parties, if one was made, and, second, who committed a breach of its terms. The court refused plaintiff’s request for the following instruction:
“If you find from the evidence that the defendant entered into a contract with the plaintiff to sell plaintiff 5,000 bushels of wheat to be delivered at Grantville, Kan., within 30 days from July 12, 1916, but’ that plaintiff failed to furnish cars which he had agreed to furnish in which to ship the wheat, that this fact would not justify defendant in rescinding the contract, if you further find that the plaintiff was willing to accept the wheat at Grantville, Kan., and pay for the same and so advised the defendant.”
In view of the conceded fact that in the conversation when the contract was made, plaintiff stated to defendant that if cars could not be obtained when defendant was ready to deliver, he would accept the wheat piled on the ground, we think it was error'to refuse the instruction. Nor do we think the jury had a right to say that part of the conversation relating to the delivery of the wheat, which was an essential thing, formed no part of the contract itself. Besides, the defendant was not interested in the question whether cars could be obtained for carrying away the wheat. The cars were not for his benefit, but for that of the plaintiff, and if the latter saw fit to accept the wheat without cars, the defendant could not escape his liability for failure to deliver the wheat because of the inability of plaintiff to obtain cars in which to place it. This becomes apparent if we turn the case the other way round and suppose that the price of wheat, instead of advancing fifty or sixty cents a bushel, had declined, and that the purchaser claimed to be unable to obtain cars and for that reason would not take the wheat. In that case, undoubtedly, the seller would have the right to pile the wheat on the ground and recover the contract price, whether the purchaser was able to obtain cars or not. But in order to maintain such an action he would be required to make either an actual delivery of the wheat at the place provided in the contract, or to make a tender of delivery. It would seem to’ follow that the seller ought to be bound by his contract, and that he cannot base his refusal to deliver on a provision in the contract which was for the benefit of the purchaser, and where he admits the purchaser offered, at the time the contract was made, to waive the provision.
It does not seem to be disputed that, at least upon two occasions when the plaintiff had a car ready and requested defendant to deliver wheat, the defendant refused, offering different excuses. It is apparent that if the price of wheat had not rapidly advanced during the 30 days there would have been no lawsuit. Under his contract it was necessary for the defendant within the 30 days to tender or offer to deliver the wheat to plaintiff. Did he do this? On that point his testimony is:
“Q. Do you claim you ever offered this to Mr. Cardwell when he wouldn’t take the wheat? A. I don’t know as I ever offered it to him but I—
“Q. Did you ever give him any notice he could come and get the wheat? A. Yes, sir.
“Q. When? A. When he bought it.
“Q. The only notice you ever gave Mr. Cardwell was when he bought the wheat when he stated he wanted reasonable notice and you says, ‘I give you notice now’? A. He says, ‘You give me two or three days notice and I will give you cars’ and I says, ‘you have got your notice now.’ ”
It was solely upon this evidence that the jury, asked to state when and where defendant ever tendered the wheat according to the contract, made the following answer:
“The defendant gave notice at time of contract and tendered wheat to plaintiff according to contract the day contract was made.”
But the statement to plaintiff at the time the contract was entered into, “You have got your notice now,” cannot, by any process of reasoning, be tortured into an offer to deliver the wheat then and there. It was not so intended; part of the wheat had not then been threshed. The answer of the jury was evasive, and, like many others, simply indicated a willingness to find some way if possible in which to defeat the plaintiff’s claim.
For the reasons stated, the judgment will be reversed and a new trial ordered.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a real-estate agent to recover a commission for the sale of a tract of land. The plaintiff recovered, and the defendants appeal.
The plaintiff pleaded that he sent the defendants the following telegram: “Think I can close deal on McKenzie quarter $3,100 cash net to you. Wire answer.” The defendants replied as follows: “Will sell McKenzie quarter thirty-one hundred cash net to us.” Pursuant to these telegrams, the plaintiff negotiated a sale of the land for $3,400, which the defendants received. The defendants refused to pay the plaintiff his claimed commission of $300, and the prayer was for judgment for that sum. The answer was that' the plaintiff was agent for the defendants in negotiating the sale, and as such agent was guilty of fraud. The reply denied agency, under oath, and denied generally other allegations of the answer.
The facts are not disputed. In August the plaintiff wrote the defendants that he had an offer of $3,200 for the land, that $3,200 was. a fair price, and that he would expect the usual commission in case of sale. The defendants said in reply they would sell for $3,400 net cash, or $3,500 net on time. Corres pondence followed which related to sale of the land, and to renting it in case it could not be sold. On September 12 the plaintiff wrote the defendants as follows:
“Your favor of the 10th received, and I note that you will accept $3,-200 net for the McKenzie quarter. I just received a letter from Mr. Feaster, and $3,200 is the best offer he has ever made, and' I doubt whether he will take the land at that now, as he has made arrangements to leave for Montana the 18th; but I will write him, and see what he says. As he won’t give any more than the $3,200, if he takes the place I will expect a regular commission of five per cent and two and one-half per cent, which will be $105, but will close the deal if I can at $100 for you.”
On September 15 the defendants telegraphed the plaintiff, and confirmed the telegram by letter, that they would sell for $3,200 cash and pay $100 commission, the offer to be good until the 19th. On September 20 the plaintiff wired the defendants as follows: “My man failed to come. Rent your land.” On September 27 the’ defendants wrote the plaintiff regarding lease of the land, and said:
“We shall leave the sale of this land in your hands, and any time you have a definite proposition for purchase of the same, trust you will let us know at once.”
On October 13 the telegrams set out in the petition were exchanged. The fact was that before sending the telegram, “Think I can close deal on McKenzie quarter $3,100 cash net to you,” the plaintiff had already negotiated a sale for $3,400, and had given the purchaser a written contract of sale at that price, bearing the following signature: “Raird and Cochran, by their agent, Justin T. Avery.” The plaintiff forwarded the contract to the defendants, which they approved and carried out with the purchaser. They objected, however, to paying the plaintiff a commission of $300, and insisted that in no event could they be liable for more than the usual commission, $110. At the trial the plaintiff admitted the sale had been negotiated before the telegrams of October 13 were exchanged.
There is no fairly debatable question in the case. That the plaintiff was agent of the defendants was conclusively proved by his conduct in negotiating a sale of the land, and in signing the contract of sale as agent, before it occurred to him to trick his principals in the matter of commission. Having negotiated the sale, it was his duty to give a faithful report of the facts, instead of resorting to the preliminary subterfuge disclosed by his uncandid telegram. Having violated this duty to his principals, the plaintiff forfeited his right to any commission. (Jeffries v. Robbins, 66 Kan. 427, 71 Pac. 852; Deter v. Jackson, 76 Kan. 568, 92 Pac. 546.) It makes no difference that the defendants carried out the contract with the purchaser. The courts are closed to an action by the plaintiff for relief based on his own fraud. (Krhut v. Phares, 80 Kan. 515, 103 Pac. 117; Ratliffe v. Cease, 100 Kan. 445, 164 Pac. 1091.)
The judgment of the district court is reversed, and the cause is remanded with direction to-enter judgment for the defendants.
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The opinion of the court was delivered by
Burch, J.:
The action was one 'against an employer for damages sustained by an employee as the result of personal injury negligently inflicted. The sole ground of negligence pleaded was that the defendant failed to furnish the plaintiff a reasonably safe place in which to work. The plaintiff recovered, and the defendant appeals.
The plaintiff was a tool dresser at the defendant’s oi'l-drilling rig. The engine house was south of the derrick, and the two structures were connected by a board walk about four feet wide. The belt house was on the west side of the walk. North of the engine house and adjoining the walk on the east was the tool rack. North of the tool rack, but not adjoining it, was the casing rack. There was casing on the rack and lying about it. Drilling operations had been in progress for some time, and as casing was used the rings which protect the threads of the casing until it is used had been taken off by the casing crew and thrown on the ground. The rings were 10, 12%, and 15 inches in diameter, weighed from 10 to 30 pounds, and were not piled up, but lay scattered about. On the premises were necessary structures other than those mentioned, and the usual litter incident to oil-drilling operations. On the day of the accident, what is called a stem was brought to the premises. The stem was a metal, shaft, 4 or 4% inches in diameter and 30 to 35 feet long, for use in recovering tools lost in the well. The stem was unloaded from a truck and deposited on the ground east of the casing rack. One end was near the engine house, and the other was 25 or 30 feet southeast of the derrick, so that the stem extended in a northeasterly direction from a point near the engine house. A cable from the top of the derrick, which was 60 or 70 feet high, was attached to the end of the stem nearest the derrick, and the stem was lifted and dragged into the derrick by power from the engine. The plaintiff assisted in rolling back some casing not on the casing rack, so that it would not be in the way when the stem was raised. There were casing rings under the rack, in front of it, and under the tool rack, but there were none about the stem where it lay before it was raised. While the cable was being attached to the stem the plaintiff held the stem with chain tongs, taking his position on the west side of the stem, the side toward which it was obliged to swing when moved. As the stem was raised it was dragged toward the north, while at the same time the north end swung toward the west. The chain tongs were not in good condition, they did not release, and the plaintiff, while stepping backward, kicked them loose. The moving stem overtook him, and he jumped toward the west. He alighted on the rim of a ring, which turned up and struck him on the shins.
The plaintiff had had several years’ experience working about oil derricks. When he first went to work he learned to dress tools, and he had been acting as a tool dresser for some months previous to his injury. He had worked in the capacity of tool dresser about the rig at which he was injured for 15 or 20 days before the accident, and he was familiar with all the conditions, including the location of the casing rings, which remained unchanged during the entire time he worked there. When the casing was moved to clear the way for lifting the stem, the casing rings were not disturbed. The plaintiff knew the stem was bound to swing toward him when it commenced to move.
The argument in support of the judgment departs from the case made by the petition and the evidence. It is said the plaintiff was not engaged in the performance of his ordinary duties, but was called on to render an unusual and extraordinary service. The petition pleaded that assisting in handling the stem was part of the work to be done in the course of the plaintiff’s employment. At the close of the evidence the petition was amended to conform to the proof in certain respects, but not in regard to the character of the work. In describing the work of a> tool dresser the plaintiff specified certain things, and added that it was his duty to “help all he can around the rig that the driller needs him to do.” The plaintiff helped the driller attach the cable to the stem preparatory to raising it.
It is said that the plaintiff was injured while working under the immediate direction and supervision of the master himself. This subject was not in mind when the petition was drawn, or when it was amended, or when the jury was instructed. The well had caved, causing loss of some tools. Operations waited on arrival of a stem. The defendant brought the stem, and after it had been unloaded said, “Here’s your stem, boys; hook onto it.” The driller and the plaintiff had just finished preparing the rope socket to be attached to the stem, and they simply passed to the next thing to be done in regular progress of the work. All orders to a servant are given by the master. In this instance they were usually voiced by the driller, who was the plaintiff’s immediate superior. The driller’s orders, however, were master’s orders, and it was not material that the defendant himself happened to be present on this occasion, and spoke instead of the driller.
It is said the stem was moved suddenly and without warning to the plaintiff, so that he could not loosen the tongs and get away. No such claim was made in either the petition or the testimony. The engine was started and stopped from inside the derrick. On this occasion the engine was started by Sillín. He was at the stem when the rope socket was attached. The plaintiff testified that after the rope socket was screwed up, Sillín and the driller walked from the stem to the derrick, the driller took the brake, and Sillín opened up the steam. Raising the stem was the next thing to be done after the rope socket was attached.
It is said the rings were not a part of the tools or equipment necessary to drilling the well. Casing was necessary to drill - ing the well, and the rings were essential portions of the casing up to the time the casing was put into the hole.
The result is, the judgment cannot be upheld by any of the supports proposed by the plaintiff.
It is difficult to discover a fair basis on which to rest a finding that the defendant was negligent. Drilling an oil well is a somewhat rough-and-ready kind of business. The premises are not supposed to be kept swept and garnished. Tools, material and supplies, by-products, worn-out and cast-off articles, and rubbish of all kinds are disposed of according to convenience. As the work progresses things accumulate, and a condition gradually grows up with which experienced workmen are perfectly familiar, and which they recognize as incidental to prosecution of that kind of an enterprise. The defendant’s premises appear to have been safe enough for any one not a novice at the business; but whether or not his method of conducting drilling operations was one which a jury might pronounce reasonably safe for his workmen, it was his method. Casing rings were dropped by the casing crew where they were removed, and were left in the vicinity of the casing rack. The plaintiff met this condition when he went to work there. The condition continued unchanged, and he knew all about it. The rings were obvious impediments, if in anybody’s way. It was scarcely necessary that the plaintiff should be instructed concerning running against, falling over, stepping on, or jumping on a casing ring or collection of casing rings. .He knew just as much about the risk attending such action as the defendant, and he accepted the situation. He assisted in removing casing lying beside the rings, from the anticipated path of the stem. When he went out to the stem, he could foresee just as well as the defendant that if he should be obliged to retreat before the moving stem, the rings would confront him, and whatever risk there was in the work he assumed.
The plaintiff was injured by a combination of fortuitous circumstances, to which the matter of allowing rings to lie about was a mere incident. It so happened that when the stem was brought to the well, it was deposited on the ground in such a position that it would swing toward the west when it was raised. The plaintiff happended to stand on the west side of the stem when holding it with the chain tongs, instead of on the east side, where he would have been perfectly safe. It happened that the tongs unexpectedly stuck, and the engine was started before the plaintiff succeeded in releasing them. Finally the plaintiff made a jump, and his weight happened to be applied with such force on the rim of a ring that it performed in such a way as to injure him. Analyzing this chain of events, it is quite clear the primary and proximate cause of the accident was not the fact that the defendant did not furnish the plaintiff a clear jumping ground, but the fact that the tongs stuck, a matter of which the plaintiff did not complain. Presence of the rings merely created a condition which rendered operation of the cause hurtful.
The principles which have just been applied are all elementary in the law of negligence, and need neither fortification nor illustration by citation of decided cases. t
At the conclusion of the plaintiff’s evidence a demurrer was interposed and overruled. The judgment is reversed, and the cause is remanded to the district court with direction to sustain the demurrer.
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The opinion of the court was delivered by
Johnston, C. J.:
Did the trial court commit error in the dismissal of an appeal taken by B. R. Evans from an order of the board of county commissioners of Johnson county, vacating a road and establishing it on another line? is the question presented upon this appeal.
Many years ago the A. R. Miller road was duly established, but in 1914 it was vacated, and what is known as the George Thoren road was established. For some reason this road was not opened for general use. It is suggested that before it could be of practical public utility the construction of two expensive bridges was necessary. In 1918, a petition was presented to the board to vacate the Thoren road and reestablish the Miller road. A .number of those who had petitioned for the Thoren road signed the petition asking for the relocation. The petition was found to be regular and legal, the bond presented in connection with it was approved, and viewers were appointed. Shortly before this action was taken Evans had brought a proceeding in mandamus to compel the township trustee to open the Thoren road, to which an answer was filed by the defendant, and the action was pending when the county commissioners allowed the petition and made the order vacating the Thoren road and relocating it on the Miller line. The plaintiff, Evans, and some others, remonstrated against the relocation of the road, but after the viewers met and reported favorably on the relocation, the plaintiff presented a formal claim for the damages sustained by him through the relocation. Instead of pressing this demand for damages, the plaintiff appealed from the order reestablishing the Miller road. When this appeal came up for hearing the district court dismissed the appeal, and of this ruling plaintiff complains.
The plaintiff challenges the legality of the action of the county commissioners, but it appears that the statutory re quirements for the relocation were closely observed. The petition and bond were sufficient, the viewers were legally appointed, and notice of the view was given to interested parties, who had an opportunity to be heard. The protest of the plaintiff was heard, and it being without avail, he asked for an award of the damages alleged to have been sustained. The board undoubtedly had jurisdiction to make the order that was made, and if anything was lacking in the matters of notice to him, it was waived by his appearance, remonstrance and claims made before the board. However, he contends that he was entitled to have the orders of the board reviewed on appeal upon the grounds that they were unreasonable, arbitrary and subversive of private rights, and his contention is that tne vacation of the Thoren road and the reestablishment of the Miller road was both unreasonable and unwarranted. Whether the relocation was practical and convenient and the new road was of public utility and could be made without unreasonable expense, were questions which called for an exercise of the legislative powers of the board. It has been decided that the vacation, relocation and establishment of roads largely in.volves the legislative and administrative powers of the board, and that these functions are beyond the jurisdiction of the district court. (Flagel v. Jackson County, 83 Kan. 709, 112 Pac. 622; Wilson v. Cloud County, 87 Kan. 798, 126 Pac. 642. See, also, Fulkerson v. Comm’rs of Harper Co., 31 Kan. 125, 1 Pac. 261; Kent v. Comm’rs of Labette Co., 42 Kan. 534, 22 Pac. 610.) Nothing in the cited case of Nash v. Glen Elder, 74 Kan. 756, 88 Pac. 62, militates against these holdings'. Matters of damages resulting from the establishment or relocation of a road are judicial in character and as to these an appeal is allowed. The appeal taken by the defendant, however, does not involve the allowance of damages, as it appears that his claim for damages has not yet been decided. If the appeal taken did involve anything of a judicial character, such as irregularity of proceedings or lack of notice, it is not disclosed by the record, and even if these were defective, plaintiff’s demand for damages would operate as a waiver of such objections. It has been determined that a remonstrant “can not be heard to object to the establishment of a road for the opening of which he also claims damages.” (Flagel v. Jackson County, 83 Kan. 709, 710, 112 Pac. 622, and cases there cited.)
Much is made of the pendency of the mandamus proceeding, which was brought to require the township trustee to open the Thoren road, and there is a contention that it is an obstacle to the powers of the board of county commissioners to entertain a petition to vacate the road or make any order allowing a relocation. The county commissioners were not a party to that proceeding, and there was no attempt to make an order to enjoin them from acting on the relocation. That proceeding in no way operated to restrain the board, and its pendency did not justify a refusal to act upon a valid petition and to take the further steps which the statute requires.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover on a fire insurance policy.
The late Henry Cooley, of Rooks county, purchased a policy of fire insurance upon his farmhouse and bam, and also upon his household goods. The farm was subject to a first mortgage in favor of J. R. Loomis, and with the insurance company’s consent the insurance on the farmhouse was to be payable to the mortgagee as his interest might appear. The plaintiff, The Stockton National Bank, held a second mortgage on the farm. Cooley died, and Loomis brought suit to foreclose his mortgage. The bank, as junior mortgagee, was impleaded and its second mortgage was also foreclosed. The sum of the two mortgages was about all that the farm was worth, and to protect its lien the bank bought the farm at the foreclosure sale. During the redemption period the farmhouse and its contents were burned. The widow of Cooley, his administratrix, collected the insurance on the household goods, and the bank as purchaser at the foreclosure sale claimed to be subrogated to the interest of Loomis, the first mortgagee, and demanded payment of the insurance on the farmhouse. The insurance company denied liability. Action was begun, issues were joined, and the trial court gave judgment for defendant on the pleadings and upon the opening statement of counsel for the bank; hence this appeal.
A majority of this court hold that the judgment of the trial court was correct. The purchaser of the insured property at the sheriff’s sale had no legal claim upon the insurance policy, which covered the property for the benefit of the mortgagor and mortgagee, nor was it subrogated to the rights of the mortgagee in the proceeds of the insurance. An insurance policy is a personal obligation between the insurance company and those with whom it chooses to bargain. It was willing to carry the risk for Cooley and his original creditor, and bound itself to do so; but it never did obligate itself to carry the fire risk on the property for any purchaser of the property at sheriff’s sale if the owner of it became so indifferent in regard to the property as to permit it to be sold under mortgage foreclosure. An insurance company may be perfectly willing to carry insurance on a mortgaged property, and also willing to protect the interest of the mortgagee, where the mortgagor is diligently caring for the property, keeping the interest paid up on the mortgage, keeping the taxes paid and the property in repair; but the insurance hazard is or may be much different and much greater when the mortgagor has so far defaulted as to permit the property to be sold by the sheriff under foreclosure proceedings. The insurance company is not bound to carry such a risk without expressly consenting thereto, and without the payment of a larger premium rate for the possibly greater moral hazard involved. The purchaser at the sheriff’s sale, although that sale was conditional and the property was subject to redemption, had an insurable interest which he himself might have protected by insurance (Deming v. Dickerman, 63 Kan. 728, 66 Pac. 1029; 2 Joyce on The Law of Insurance, 2d ed., § 981a) ; but that interest was not covered by the policy issued for the benefit of the mortgagor and the original mortgagee. (Note, 6 L. R. A., n. s., 448; 2 Joyce on The Law of Insurance, 2d ed., § 1046.) The learned trial judge in this case delivered a written opinion, in which he noted that our reports had no precedent to govern this precise question. He was guided by the analogy and doctrine which he drew from the case .of Lett v. G, F. Ins. Co., 125 N. Y. 82, part of the syllabus of which reads:
“A policy of fire insurance is a personal contract by which the insurer undertakes to indemnify the assured against loss, in a manner and subject to conditions therein described. The obligation does not pass with the insured property to an assignee or purchaser thereof without the consent of the insurer, and such consent alone can, in case of a transfer, keep in life the agreement.
“Defendant issued a policy of insurance to B. upon his property, loss being made payable to A., as mortgagee. B. subsequently conveyed.the property subject to the mortgage, and his grantee conveyed to plaintiff; at the time of such conveyance, B. executed to plaintiff an assignment of his interest in the policy. No consent to the change of title was indorsed by defendant upon the policy, although such consent was made by the policy a condition of its continuance in force. On application of plaintiff for a consent, he was told by an officer of plaintiff that the policy had been canceled; this was not, in fact, true; thereupon plaintiff took out a policy for the same amount in another company, and demanded from B. a return of the allowance for premium made to him upon the transfer of the policy. In an action upon the policy, held, that it was invalidated by the failure to obtain defendant’s consent to the change of title, and that there was nothing from which such consent, or a waiver of the condition, could be inferred; also, that defendant acquired no interest by his assignment from B., as the latter had no interest at that time in the policy, it having become void by his act.”
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover damages resulting from the defendant’s refusal to accept and pay for a carload of flour. The defendant counterclaimed damages on account of the defective quality of a portion of another carload of flour. The court sustained the counterclaim, and rendered judgment accordingly. The plaintiff appeals.
The defendant was a baker with a large patronage, whose principal product was bread. While the fact was disputed, there was abundant proof, which the court evidently accepted, that the flour was not fit for bread making. The defendant used part of the flour, with the result he lost business, and the unused portion was of no value to him until government regulation permitted the use of substitutes for flour in making bread. At that time the defendant had on hand forty-four barrels of the flour, which cost him $9.60 per barrel. Taking advantage of the regulation, the defendant used the flour as a substitute, and in that way was able to use one sack with two sacks of good flour. He did not fix definitely the price of authorized substitutes at the time he was using this flour as a substitute. The price of substitutes kept going up. The price of rice flour reached $20 per barrel. Shorts were worth $3 per hundred. The only substitute the defendant was able to obtain was a poor grade of corn flour. What it cost he did not say. However, under cross-examination by the court itself, he finally fixed the value of the flour as a substitute at one-third what it cost him.
The plaintiff says the defendant should have returned the flour. The evidence was that the defendant complained of the flour, and retained it only because of a promise of adjustment, which was never made.
The plaintiff says it was the defendant’s duty to mitigate his damages by using the flour in the way which would occasion the least possible loss. The defendant claimed nothing on account of loss of custom before he was permitted to make inferior bread under the substitute regulation. When the regulation became effective, he did use the flour in the most beneficial way.
In this connection it may be observed that, according to the classification of jural relations proposed by the late Professor Hohfeld, of Yale university, the term “duty” is misapplied in the statement of the plaintiff’s contention relating to the defendant’s counterclaim. The classification follows:
“Jural I right privilege power immunity
Opposites Í no-right duty disability liability
Jural j right privilege power immunity
Correlatives \ duty no-right liability disability.”
(Hohfeld, Fundamental Legal Conceptions, p. 65; 26 Yale L. J. 710.)
According to this classification, which appears to be sound', and which, if observed, ought to conduce to clarity of thought and precision of expression, the defendant rested under no duty to the plaintiff to mitigate damages by using the flour to the best advantage. If so, he himself would have been subject to an action for damages resulting from breach of the duty. The correct statement would be that the defendant rested under legal disability to counterclaim for damages which he might have prevented. (See comment in 29 Yale L. J. 130, on decision in Saxony Mills v. Huck, 208 S. W. 868, a case involving counterclaim for loss of business on account of bad flour.)
The plaintiff .says the defendant admitted he sustained no loss, and refers to the following questions and answers:
“Q. State whether you sustained any loss by mixing up this flour and selling it. A. I did not lose any, for the substitute law went in, but I did when I was trying to make bread out of it.
“Q. You lost by not having as good bread as your competitors? ‘ A. Yes, sir.”
The defendant’s testimony as a whole shows that when answering the questions the defendant probably had in mind loss of trade after the substitute regulation became effective, and shows with certainty that he did not mean to say he had not been damaged at all.
Finally, the plaintiff says the proof of the defendant’s damages was too indefinite. The proof has been outlined. There was no objection to the method by which the value of the flour as a substitute was arrived at, the stated value was not disputed at the trial or at the hearing on the motion for a new trial, and consequently the court concludes the plaintiff has suffered no prejudice.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to enforce performance of a contract to dispose of real estate. The plaintiff prevailed, and the defendants appeal.
An aunt, left alone by death of a relative with whom she lived, secured for years, and until her death, home association and comforts, together with such care as she needed when she needed it, with a married niece, her only woman relative, who modified her domestic arrangements accordingly, on the promise of leaving to the niece whatever property she had at death. The promise of the aunt and performance by the niece were fully proved by abundant competent evidence; the findings of fact covered all the material issues and some others, and were sufficiently specific; the law of trusts was not involved; and possession or permanent improvement of the property by the niece was not essential. Tlie right of the plaintiff, under the circumstances, to the real estate promised to be given, is so clear, and has been recognized so often, that citation of decided cases is unnecessary.
The only features of the case that are in any way peculiar are that, for quite a while the aunt needed no care, in accordance with the established household economy she was often helpful to the niece, and on occasions the parties were separated from each other for periods of time of greater or less length. The relations of the parties, however, were harmonious and mutually satisfactory, and the aunt secured by means of her engagement just what she desired.
The judgment of the district court is affirmed.
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Per Curiam:
Upon the grounds indicated in the opinion filed February 8, 1919 (Railroad Co. v. Theden, 104 Kan. 289, 178 Pac. 441), the original decision of this court there rendered is adhered to, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The appellee’s petition for a rehearing in this case was carefully considered, and a rehearing denied. A motion for permission to file a second petition for a rehearing is now presented, and this may be treated as allowed; and as this motion, with entire propriety, includes and argues the matters of which appellee most urgently complains, they will be briefly dealt with.
Appellee urges that he has not had an opportunity to' be heard on the question which this court determined to be decisive of this lawsuit. Appellee sued for an ordinary real-estate dealer’s commission, alleging that he had earned it in the usual way. This court held, in substance, that the evidence wholly failed to establish the cause of action which plaintiff had alleged, but on the contrary, that his evidence did show clearly that plaintiff never did have an ordinary contract of agency to sell the defendants’ land. His evidence showed that his agency was governed by a special contract, which was later supplemented by a tentative qualification of that special contract.
The proof of existence of the special contract was surely an effective way of disproving that the defendants owed the plaintiff for services under an ordinary real-estate dealer’s contract, such as would entitle the agent to-the usual commission when he had brought buyer and seller together whereby they consummated a sale on terms agreeable to each other — “when he had been the procuring cause of the sale,” as the stock phrasing in such cases is expressed.
If the opinion went further than it needed to go, it was only to show that there could be no recovery on any theory developed by the facts of the case. All the dealings between plaintiff and defendants were in writing; they were strangers personally; and the correspondence was produced by plaintiff to maintain his cause. It not only failed to prove the cause of action he had alleged — an ordinary contract of employment to sell defendants’ land or to find them a buyer, but proved beyond peradventure that the contract which he did have was a special contract, with its later tentative qualification—
“In event you could only possibly get a $35.00 offer on this ranch, it might be that we could adjust some commission with you.”
As plaintiff never had a contract to sell the defendants’ land except on terms whereby the price was to be $35.00 per acre net to the owners, with the later qualification of those terms as above quoted, and as he never did get an offer of any sort which afterwards ripened into a sale on any terms, it never became the duty of • defendants to “adjust some commission” with the plaintiff.
In arriving at this conclusion the court has adhered strictly to its usual rule of giving the most liberal credence to the evidence of the party who prevailed below, and of disregarding the conflicting evidence which may have been disbelieved by the trial court. That is to say, we give full credence to the correspondence which passed between the parties, and endeavor to read it in the light most favorable to plaintiff. We give full credence to the facts showing plaintiff’s efforts to sell the land, including his efforts to interest Anderson, who bought the land from defendants some months later. Now, if plaintiff had proved that he had the usual “free-and-easy” real-estate dealer’s contract to sell defendants’ land, such as has often been before us (Grimes v. Emery, 94 Kan. 701, and citations, 146 Pac. 1135), the plaintiff might have made a case for a jury’s determination. That need not be positively decided. But as the plaintiff had no such contract, and his evidence attempting to prove such a contract disclosed a different — a special — contract, and he failed to prove any effective service under that special contract, consequently he failed to establish his cause of action; at the same time he did prove that he had no such cause of action.
A rehearing would serve no purpose, and it is therefore denied.
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The opinion of the court was delivered by
Mason, J.:
The Belle Springs Creamery Company, of Abilene, by reason of communications it had had with J. J. Gafford, a butter, eggs and poultry broker of Omaha, shipped two cars of eggs to Chicago for delivery there to the Fairmount Creamery Company, of Omaha, upon the payment of drafts attached to the bills of lading. The Fairmount company accepted and paid for one car, but refused the other upon the ground that it had contracted for the eggs subject to its inspection and approval at Chicago, and that those in this car had failed to pass such inspection. The market had in the meantime fallen, and the Abilene company sued the Omaha company for the resulting loss. Judgment was rendered for the plaintiff, and the defendant appeals.
The plaintiff’s evidence was to this effect: On May 28, 1917, Gafford called its manager, J. S. Engle, on the telephone, said he had a customer who wanted to buy several cars of storage packed eggs and asked if he had anything to offer. Engle answered that he would offer two cars at thirty-five cents a dozen. Gafford then said that his customer, naming the defendant, wanted the eggs subject to inspection. Engle replied that he would sell his usual pack, which in the trade would be considered a. good pack. The next day Gafford sent the plain tiff a letter, the important part of which read: “This confirms purchase from you of two cars storage at thirty-five cents Chicago for the Fairmount Cry. Co., of Omaha, ship the eggs to Fairmount Cry. Co., Chicago and draw on Omaha. Be careful and put us up a good pack.” The eggs were sent in accordance with the agreement, with the result already stated.
The defendant’s evidence -was to this effect: On May 28, 1917, Gafford called up its manager, H. L. McCoy, and offered him two cars of northern Kansas storage packed eggs subject to inspection and approval at Chicago, at thirty-five cents a dozen. McCoy accepted the offer. Later Gafford, who had never been employed by the defendant as its agent or otherwise, told him the eggs belonged to the plaintiff. One car of the eggs was rejected because on inspection it did not meet the test.
The case was tried without a jury. The court accepted the plaintiff’s version, of the facts and found expressly that it was not a condition of the sale that the eggs should be subject to inspection, the findings also implying that Gafford had acted as the agent of the defendant in the transaction. A reversal is asked on the ground that the judgment is without support, particularly in that there was no competent evidence that Gafford was the agent of the defendant.
In a very similar case between another plaintiff and this defendant, which arose at about the same time, a like objection was made, but was held to be unavailing because the defendant in a letter to the plaintiff explaining its refusal of the eggs used the expression, relating to its claim that they had been bought subject to inspection: “This was the terms you sold the eggs to us at.” This was held to be conclusive of that feature of the controversy because it was an acknowledgment that the car had been purchased of the plaintiff by the défendant. (Brewer v. Creamery Co., 104 Kan. 100, 178 Pac. 250.).
In the correspondence which followed the refusal of the car in the present case, the defendant did not employ that or any equivalent language. Although the general tone of its communications might be deemed to indicate that it regarded itself as a party to a contract with the plaintiff, it did not explicitly say so. What it did say was perhaps consistent with the idea that it had dealt solely with Gafford and had no con traetual relations in the matter with anyone else. But the defendant’s pleading supplied the acknowledgment which was held in the earlier case to be decisive of the question. In the answer it was expressly stated that “the defendant entered into a verbal contract with the plaintiff” for the purchase of the eggs. In the same sentence it was also said that the contract was entered into through J. J. Gafford, who was the agent of the plaintiff, and that it was a part of the agreement that the eggs were to be subject to inspection. The theory that the defendant dealt only with Gafford and did not know the plaintiff in the deal was therefore not presented, and no such issue was involved. The parties agree that a contract was entered into between them. Their dispute is whether or not by the terms of the contract the eggs were subject to inspection, the solution of this controversy involving the question as to which of them was represented by Gafford in the deal.
It is true that there is no direct and positive evidence that Gafford was the agent of the defendant, except his own statements to the plaintiff’s manager, and his agency of course cannot be proved by his own declarations out of court. The story of the communications between Gafford and the plaintiff’s manager, however, while incompetent to show that Gafford was the agent of the defendant, was admissible as tending to disprove that he had acted as the agent of the plaintiff, that issue having been raised by the answer. The pleadings established that a contract for the sale of the eggs had been made between the plaintiff and the defendant through negotiations in which' Gafford acted in behalf of one or the other, there having been no direct communication between the parties.' When it was determined by the finding of the court upon competent evidence that Gafford had not acted as the agent of the plaintiff, it followed in the state of the pleadings that he had acted as the agent of the defendant. On this issue (as to whether Gafford represented the plaintiff) there was a square conflict, between the testimony of Gafford and that of the plaintiff’s; manager, which the court obviously resolved in favor of the plaintiff. Gafford’s letter, from which quotation has already been made, doubtless contributed to that conclusion, for it seems wholly inconsistent with the theory that Gafford was acting for the plaintiff. The court must also be regarded as having discredited the testimony of the defendant’s manager so far as it tended to support that theory. The part of the evidence which the court believed showed that Gafford assumed to act as the defendant’s agent, and in that capacity undertook to make a contract with the plaintiff; and that the defendant accepted the contract so negotiated in its behalf was inferable from its pleading the existence of a contract between it and the plaintiff, which under the evidence to which credence was given could have been created in no other way.
It having been determined that a contract had been entered into between the plaintiff and the defendant through the intervention of Gafford, and that it was not and could not have been brought about by dealings between him and the defendant, because he was not. the agent of the plaintiff, the terms of the contract must be sought in the communications between him and the plaintiff’s manager. The latter testified that the contract did not provide for inspection at Chicago. Gafford testified to the contrary. His letter of confirmation contained no mention of such a provision. The decision of the trial court that the‘sale was not subject to inspection was conclusive upon that matter, which was -the real controversy of fact on which the case turns. The requirement that the eggs should pass the defendant’s inspection at Chicago being thus disposed of, there was sufficient evidence on the part of the plaintiff that when shipped they met the specifications of the contract— that is, that they were storage packed — the plaintiff’s usual pack.
The judgment is affirmed.
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The opinion of the court was delivered by
DAWSON, J.:
This was an action by taxpayers to enjoin the city of Hutchinson from paving a street. Plaintiffs raised various objections to the proceedings. The injunction was granted on two grounds:
First, that the statute requiring that the petition to pave the street shall specify the width of the paving was mandatory and had been disregarded.
Second, that certain resident property owners who had signed the petition for the paving had a right to withdraw their names from that petition before the city commissioners had taken final action thereon, and that with their names lawfully withdrawn the petition contained an insufficient number of signatures of resident property owners to authorize the paving.
Let us examine the first infirmity in the proceedings as found by.the trial court. None of the facts are in dispute. The petition to pave the street, in part, recited:'
“To the Board of Commissioners of Hutchinson, Kansas.
“Gentlemen:
“We the undersigned resident owners of property liable for the costs of the improvement sought, hereby petition your honorable body to cause Sherman street to be paved from Poplar street to Bonebrake street with brick on concrete base with asphalt filler.”
The statute under which the paving was projected, in part, reads:
“Provided, That in cities of the first class having a population of over 25,000 no resolution to pave, macadamize, or grade, or repave, .remacadamize, or regrade, any street, lane or alley shall be valid unless a petition asking such improvement has been ordered spread upon the journal, which petition must be signed by the resident owners of not less than one-half of the feet fronting or abutting upon such street, lane, or alley to be improved: And provided further, ... In case of paving, such petition shall state the width of the paving and the kind of material to be used, . . . .” (Gen. Stat. 1915, § 1233.)
It will be noted that the statute plainly says that the petition for paving shall state the width of the paving, as well as the kind of material to be used. The petition disregarded this specific requirement. How shall the court refine away that statutory provision so that it will mean nothing? Shall we amend the statute by judicially ignoring it? We cannot do that. The width of the paving is a very material matter for the taxpayer in determining the value of the proposed improvement to his property, and in considering the amount of his burden as a taxpayer. The width of the paving very materially affected the rights and liabilities of the plaintiff taxpayers. Many residence streets in the cities of this state have been laid out on such broad, generous lines that to pave them with costly materials for their full width would create such a burden of taxes as to impoverish the owners of the abutting property. The trial court ruled on this matter correctly.
The correctness of the second proposition upon which the judgment is based is not so clear; but since the first ground is unassailable, the second need not be decided.
The court is asked to give its opinion on other matters discussed in the briefs of counsel, as a sort of guide to future proceedings under this statute; but our jurisdiction on appeal is limited to a review of questions essentially involved in determining the correctness of the judgment of the trial court. Aught else that might be said would only be dictum.
The judgment is affirmed.
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The opinion of the court was delivered by
MASON, J.:
On July 27, .1915, M. E. Silvius made application to the Benton & Hopkins Investment Company for five loans, aggregating $8,250, on various tracts of land owned by him. On the acceptance of the application he executed to the company mortgages for that amount, due ini five years and bearing interest at 6 per cent per annum. He also executed to the company an additional or “commission” mortgage for $1,230, due January 1, 1917, drawing interest at 10 per cent per annum from its maturity. The purpose of the transaction, which may be spoken of as a single loan, was to enable Silvius to pay off an existing mortgage indebtedness against the property for some $11,000. The deal fell through because he failed to raise the additional amount which was necessary in order to provide for the release of the original mortgage. On November 5, 1917, J. T. Fitzgerald, the owner of that mortgage, brought an action for its foreclosure, making the investment company a party because the mortgages executed to it had been recorded and not released. The company filed an answer, in which it claimed a right of recovery upon the commission mortgage on the ground that this was to have been its compensation for negotiating the loan; that it had fully performed its part under the agreement; and that the deal had been abandoned solely through the fault of Silvius. Judgment was rendered against the company, and it appeals, the only question involved being with respect to the validity of its claim.
1. The trial court gave as a reason for holding that the commission mortgage was void that it was without valid consideration, the application having been made direct to the company, which could not act in the dual capacity of lender and agent to procure the loan from itself. This reasoning, if sound, would seem to require the commission mortgage to be held invalid even if the loan had been made. We regard it as unsound for the reason that the commission mortgage was not in fact the compensation paid or agreed to be paid by Silvius to the investment company for its services as his agent in finding some one to make him the loan. He made a written application to the company for the loan, in the course of which he appointed it as his attorney in fact to procure it, agreeing to pay it a reasonable sum if he should refuse to take it. This language indicates the creation of the relation of principal and agent in one aspect of the matter, but with a specific provision for payment quantum meruit in case services were performed and not accepted. When Silvius executed to the company mortgages for the amount he desired, together with the so-called commission mortgage, the transaction plainly took on the character of a negotiation for a direct loan between the parties. The arrangement was the familiar one adapted to the sale of the principal mortgage as a first lien, the original mortgagee retaining the other as its share of the profit, commonly spoken of as a commission, although perhaps better described by the term bonus, but by whatever name designated being in reality a part of the interest, and valid unless usurious. (39 Cyc. 971, 972; Lynn v. McCue, 94 Kan. 761, 773, 147 Pac. 808.)
2. While this view of the relations of the parties would have rendered the $1,230 mortgage enforceable if the money had been lent, it does not serve the investment company so far as this case is concerned. As no loan was in fact made, no interest was earned, and none of the mortgages executed by Silvius to the company became an existing' obligation. The evidence showed a failure on the part of Silvius to carry out a contract he had made to accept the loan. Doubtless, in a proper action, the company would have been entitled to recover any damages it thereby suffered. But here it pleaded nothing but its note and mortgage, and asked recovery on no other theory than that the writings signed by Silvius had become effective as such. It was therefore properly denied relief, and the fact that the reason given for the ruling does not meet the approval of this court affords no ground for reversal. (Saylor v. Crooker, 97 Kan. 624, 156 Pac. 737.)
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
Rosanna McDougall, as administratrix of the estate of her deceased husband, Paul W. McDougall, sued the Atchison, Topeka and Santa Fe Railway Company, to recover damages for the death of her husband while in the employ of the defendant. She recovered judgment for $11,000, and the defendant appeals.
The action is based on the federal employers’ liability act of 1908 (Part 1, 35 U. S. Stat. at Large, ch. 149, p. 65). The petition averred and the defendant concedes that it is a corporation operating a line of railway as a common carrier in interstate commerce, and that Paul McDougall at the time he was killed was employed by the defendant in such commerce.
In the afternoon of August 28, 1917, Paul McDougall was the engineer in charge of engine No. 1837 attached to a freight train which left Emporia for Kansas City. Behind his engine there was attached engine No. 500, and at Quenemo the train was stopped on account of a hot box on the left main drive of engine No. 500. In a short time the train resumed its journey eastward. Between Quenemo and Pomona there are two covered bridges over the tracks of the defendant, about a mile and a half apart. When the train was approaching the first of these bridges a short distance west of Pomona, McDougall leaned out of the gangway on the left side, which was the fireman’s side, and while looking back to see the condition of the main driving box on engine No. 500, he was struck by the right girder of the bridge and instantly killed. On this particular piece of track eastbound trains are operated over the left-hand track, and westbound trains over the right-hand track, in order to take advantage of better grades. An engineer going east is on the right-hand, or inside. In this instance McDougall crossed over to the fireman’s side, and leaned out of the gangway, when his head same in contact with the bridge.
The petition averred that there was a curve in the railway track just as it approached this bridge; that the engine and train in passing through would swerve slightly; that there was less than two feet of space between the left side of the engine and the girder of the bridge; and that the negligence of the defendant consisted in erecting and maintaining an overhead bridge under these conditions. The answer pleaded a general denial,, contributory negligence, and assumption of risk.
In answer to a special question the jury returned a finding that bridge 69-A was not a standard bridge; defendant’s motion to set aside this finding on the ground that it was contrary to the evidence was overruled. Photographs of bridge 69-A which were introduced in evidence show á modern double-track steel railroad bridge such as is in common and ordinary use throughout the country. Defendant’s division engineer, with 20 years’ experience and itn1 whose territory the bridge is located, testified that the bridge was constructed in 1905 when the double track was built; that he had made measurements of the bridge in August after McDougall’s death; that the tracks, which are 14 feet center, aré centered on the bridge; that it is 7 feet from the center of the north track to the inside of the north end posts; and that the bridge is a standard width bridge. He further testified:
“All bridges on the Santa Fe are built to a standard. The bridge company have a standard plan from which they build a bridge, and they are all constructed just to a standard width. This is a requirement of the engineers of the company. They don’t leave it to the discretion of the man who builds the bridge how wide it shall be, the bridge engineer tells him what the standard is. This bridge is as wide as any that I know of.”
The conductor of McDougall’s train, who was a witness for the plaintiff, testified on cross-examination that bridge 69-A is what is known as a standard bridge on the Santa Fe. No experienced railway engineers were called by the plaintiff to establish the contrary, although a locomotive engineer in the employ of another road was called by the plaintiff to establish other facts. The plaintiff offered no evidence to show that on the defendant’s road, or that upon other railroads, bridges are required to be constructed with a greater clearance. One of plaintiff’s witnesses, a county surveyor who had also served as city engineer for a number of years, testified that he had taken a measurement of a covered double-track truss bridge (not on the Emporia cutoff, but on another main-line track of the defendant), and found the width between the girders to be 2 inches more than the width of bridge 69-A. His testimony did not disclose what the clearance was between the sides of the bridge and the tracks.
The finding that the bridge was not of standard construction on defendant’s line of railway is not only contrary to the evidence, but is unsupported by any evidence, and should have been set aside.
George A. Smith, a former employee of the defendant, was the principal witness for the plaintiff. He was the fireman on the second engine, No. 500, at the time McDougall was killed. He had worked as a fireman under McDougall. Plis deposition was taken at Camp Pike, Ark., after he had left the employ of the company and had entered the army. He testified:
“I had known Mr. McDougall for four or five years and during that time he had been an engineer for the Santa Fe, and had been running over that piece of track during that time. As fireman I have been going through there the length of time I have stated. I knew the danger. I had it preached into me. Paul McDougall preached it into me, for one. Paul McDougall, the deceased, warned me of the danger of being on the outside of my engine in passing through these bridges.”
On redirect examination, he testified:
“McDougall had warned me about passing through different bridges on the system, not any particular bridge.”
Although it was averred in the petition that there was a curve in the railway track as it approached bridge 69-A, where Mc-Dougall was killed, the special findings of the jury are that the track was straight from the bridge to a point 4,800 feet west, and that the track was well ballasted and was level between these points. The jury’s special findings also show that for 15 years before he was killed, Paul W. McDougall was in the employ of the defendant as a locomotive engineer, running on the division between Emporia and Argentine over the bridge in question; that during the last year of his life, from August 28, 1916, he ran an 1800 class engine over this bridge 300 times, including 23 times in June, 25 times in July, and 26 times in August, 1917; that engine No. 1837, on which he was killed, did not sway from side to side in going over the .bridge more than was ordinarily the case in engines of similar type; and that the 1800 type of Santa Fe railway engines in use on defendant’s road are substantially alike as to height, width and construction.
The jury made a further finding to the effect that before the accident McDougall warned George A. Smith, a fireman, against the danger of passing through different bridges on the Santa Fe railway system. There is a finding that the clearance between the tender of engine No. 1837 and the inside girder on the north side of the bridge at a distance of 8% feet above the rails, with the engine standing still, was 23% inches. The jury also found that the defendant’s negligence consisted in maintaining a bridge with insufficient clearance for the safety of employees.
The federal employers’ liability act, upon which this action is based, has been construed by the federal courts, and the decisions are controlling in cases arising under the act. (Spinden v. Railway Co., 95 Kan. 474, 148 Pac. 747; Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1153.) In Seaboard Air Line v. Horton, 233 U. S. 492, it was held that the act having expressly eliminated the defense of assumption of risk in certain specified cases, made it clear that in all other cases it was intended that such assumption shall have its former effect as a bar to an action by the injured employee. In the syllabus of that case it was ruled—
“When the employé knows of a defect in the appliances used by him and appreciates the resulting danger and continues in the employment without objection, or without obtaining from the employer an assurance of reparation, he assumes the risk even though it may arise from the employer’s breach of duty.” (Syl. ¶ 7.)
The findings in the instant case establish the fact that Paul McDougall knew as much about the condition of the bridge as any officer or employee of the defendant, and that he appreciated the danger that might result from the conditions, and therefore that he assumed the risk. The case of Tuttle v. Milwaukee Railway, 122 U. S. 189, is in point. In that case Tuttle, who was a brakeman, was coupling cars which stood on a track or siding on which there was a very sharp curve, so that the drawheads failed to meet, and passed each other, allowing the cars to come so close together that he was crushed. The opinion in the case was written by Mr. Justice Bradley, and in the course of the opinion it was said:
“The brakeman and others employed to work in such situations must decide for themselves whether they will encounter the hazards incidental thereto; and if they decide to do so, they must be content to assume the risks. . . . The perils in the present case, arising from the sharpness of the curve, were seen and known. They were not like the defects of unsafe machinery which the employer has neglected to repair, and which his employees have reason to suppose is in proper working condition. Everything was open and visible, and the deceased had only to use his senses and his faculties to avoid the dangers to which he was exposed. One of these dangers was that of the drawbars slipping and passing each other when the cars were brought together. It was his duty to look out for this and avoid it. The danger existed only on the inside of the curve. This must have been known to him. It will be presumed that, as an experienced brakeman, he did know it; for it is one of those things which happen, in the course of his employment, under such conditions as existed here. . . . The only conclusion to be reached from these undoubted facts is, that he assumed the risks of the business, and his representative has no recourse for damages against the company.” (pp. 194, 195, 196.)
The danger to McDougall was necessarily continuous and apparent, even to casual observation. The findings as to his knowledge and experience, which show that he had been employed as a locomotive engineer running over this particular track for 15 years; that in the preceding 12 months he had run an engine of the same type over this bridge 300 times; and that he had “preached” to brakeman Smith of the very danger that caused his own death, bring the case within many of our own decisions. (See Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582; Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 29 Pac. 1138; Murphy v. Edgar, 83 Kan. 627, 112 Pac. 109, and cases cited in those opinions.) In the Rush case, it was said:
“If the danger is as well known to the servant as it can be to the master, another principle enters in to prevent the servant from recovering from the master for any injuries that might result from the supposed danger, and that principle is this: If the servant has full knowledge of the danger, and continues in the master’s employment without complaint, receiving from the master full pay for his services, he assumes the risk himself of the known danger, and waives any negligence that might otherwise be imputable to the master.” (p. 136.)
As was said in the opinion in Briggs v. Railroad Co., 102 Kan. 441, 446, 175 Pac. 105:
“It would be fatuous to'say he was not aware of them [the dangers], and it would be an impeachment of the mental capacity of a competent man to say he did not appreciate them.”
In Taylor v. Chicago, R. I. & P. Ry. Co. (Iowa) 170 N. W. 888, the facts were quite similar to the instant case. A locomotive engineer running from Valley Junction, Iowa, to Trenton, Mo., was compelled to pass under a viaduct; the train was running 25 miles an hour, and an abutment supporting the viaduct struck the plaintiff on the head. It was sfyown in that case that plaintiff had passed the viaduct for three years. It was held that he could not recover because he had assumed the risk.
In Boldt v. Pennsylvania R. R. Co., 245 U. S. 441, an action brought under the federal act to recover damages for the death of a railway employee, it was said:
“At common law the rule is well settled that a servant assumes extraordinary risks incident to his employment or risks caused by the master’s negligence which are obvious or fully known and appreciated by him.” (p. 445.)
The plaintiff relies upon the decision in the case of Cloud v. Railway Co., 82 Kan. 851, 109 Pac. 400, where an engineer was killed by being struck by a girder of a bridge while leaning out of the cab window and looking for a signal from the conductor of the train. The opinion (which was per curiam) states that the clearance between the locomotive and the upright part of the bridge was about 23 inches, when the locomotive was erect and standing still; that when moving rapidly the locomotive tipped and swayed from side to side, so that it came within a few inches of the girder of the bridge. It was held that he had not assumed the risk. In the opinion it was said:
“Different types and .sizes of engines are used on the railroad. Some tilt and sway more than others. In view of the difficulty in determining the distance between swaying locomotives and the side of the bridge, and all of the other facts in the case, it cannot be held that there was an assumption of risk.” (p. 853.)
No facts are stated in the opinion showing what, experience the engineer had had in operating engines of the same size over the bridge, nor are any facts stated indicating the extent of his knowledge of the conditions or of his appreciation of the danger. In the present case the only conclusion to be reached from the conceded facts is that MeDougall assumed the risk.
In his brief, plaintiff’s counsel presents what it is insisted is another reason why assumption of risk should not bar plaintiff from recovering. It is said:
“This was an extraordinary risk. It was created by a sporadic act of negligence on the part of the employer in causing the engineer, MeDougall, to haul an engine that was in a defective condition. . ... The plaintiff in her petition alleges that the decedent had repaired the hot box on a smaller engine, which was being taken to Argentine, Kan., and at the time of the decedent’s death he was watching said hot box.”
The petition does not suggest that there was any other engine on the train except the one upon which MeDougall was engineer. The only reference to the hot box is as follows:
“That about 5:39 o’clock p. m., the said Paul W. MeDougall, in charge of engine No. 1837, as aforesaid, stepped down on the fireman’s side of the engine, to inspect a hot box that was on the side of the engine.”
It is true, the evidence showed that the smaller engine was being taken to Argentine to be used in local freight, and that at Pomona there was a delay of a few minutes because of a hot box on this engine. It is now insisted that we have a case where an engine was being moved that was in a defective condition, that it was being used in pulling this interstate train and was running under its own steam; and that “It was in a state of being repaired at the very time that engineer MeDougall leaned out of the gangway to look at the hot box. It was being used in violation of law and, therefore, the decedent did not assume any risk for any injury which he received directly or indirectly on account of the movement of said engine.” This belated claim is based upon the provisions of Part 1, 36 United States Statutes at Large, ch. 103, § 2, p. 913, making it unlawful for a common carrier to use any locomotive in moving interstate traffic, unless the boiler, locomotive and appurtenances are in proper condition. It is said the court did not instruct the jury relative to this phase of the case. The reason is apparent; the point was not suggested to the court; had not been raised in the pleadings; and is presented here for the first time.
There is no merit in the contention. If the point had been raised below, and if it could be said that the hot box on engine No. 500 made that engine a defective engine within the meaning of the act upon which plaintiff now seeks to rely, it must be obvious that the defect was in no respect the cause of the death of Paul McDougall. It was neither the proximate cause, nor did it have anything to do with his head coming in contact with the bridge' girder. The proximate cause of his death was his negligent act in leaning out of the engine cab while passing through the bridge.
It follows that the judgment will be reversed and the cause remanded with directions to enter judgment for the defendant.
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of larceny of thirty-three head of cattle, and appeals.
What we are accustomed to call “the merits of the case” are not involved. There are none. In February, 1913, the defendant pleaded guilty to stealing a carload of cattle, and was sentenced to the penitentiary. The trial judge, in his statement made for the information of the penitentiary officials, said the defendant had “an irresistible inclination to steal cattle.” In August, 1915, the defendant was paroled, on condition he kept out of the particular cattle district with which he had been familiar all his life. The old lure was too strong. He returned to his former haunts, and on November 13 took the cattle in question from the Bobbitt pasture, drove them to Pratt, and the next morning shipped them to St. Joseph, Mo., where they were sold on the market. At the trial he interposed a feeble alibi, but the Gibraltar of his defense was the statute of limitations, kept running through bad faith of the prosecution.
The complaint was filed and the warrant was issued on March 8, 1916. The defendant was arrested on September 28, 1918. The information charged that the larceny was committed “on the — day of November, 1915.” The statutory period within which prosecution might be commenced after commission of the offense was two years. The parole which the defendant was enjoying when he committed the larceny was revoked on March 6, 1916, and a warden’s warrant was issued for his apprehension. On March 17, 1916, the parole officer took the defendant into custody under this warrant, and returned him to the penitentiary. In 1918, the defendant was granted a temporary parole which extended from March 1 to March 12. On August 20, 1918, the defendant was paroled, and on September 19 he was finally discharged. From March 8, 1916, when the warrant in the present case was issued, until September 28, 1918, when, the warrant was served, the defendant was confined in the penitentiary, under the former conviction, all the time except about sixty days. From the time the offense was committed until the defendant was arrested he was confined in the penitentiary all the time except approximately six months.
It is said the information was insufficient because it did not state with definiteness and certainty the exact date of the offense. This was unnecessary. (Gen. Stat. 1915, § 8019; The State of Kansas v. Barnett, 3 Kan. 250; The State v. Brooks, 33 Kan. 708, 7 Pac. 591.)
It is said the information disclosed on its face that the prosecution was commenced more than two years after the offense charged was committed. This is not true. The information did not disclose, on its face or otherwise, when the prosecution was commenced. The information was a step in the prosecution subsequent to its commencement. The certified transcript of the earlier proceedings was on file in the cause, from which the court took judicial notice of the time when the complaint was filed and the warrant issued. The presumption was that the sheriff performed his official duty in executing the warrant, and without evidence on the subject, the court would have been authorized to instruct the jury that the prosecution was commenced on March 8, 1916, or within less than four months after the offense was committed. (The State v. Stevens, 56 Kan. 720, 723, 44 Pac. 992; The State v. Waterman, 75 Kan. 253, 88 Pac. 1074; The State v. White, 76 Kan. 654, 92 Pac. 829.)
The defendant says the time of his confinement in the penitentiary may not be excluded in computing the statutory period. This claim is based on the language of the statute specifying that time of absence from the state,, concealment to avoid service of process, and concealment of the fact of the crime, shall not be included in computing the period of limitation (Gen. Stat. 1915, § 7942) ; and on a paragraph of the opinion of this court in the case of In re Griffith, Petitioner, 35 Kan. 377, 11 Pac. 174, which reads as follows:
“It is further claimed in behalf of the state, that the time when Griffith was incarcerated in the state penitentiary should be excluded from the period of limitation. There is no ground whatever for this claim. The only exceptions to the statute are those mentioned in section 33 of the criminal code, and imprisonment in the penitentiary does not fall within any of them. He was, of course, not absent from the state, nor did he conceal the fact of the crime; neither can it be said that he concealed himself so that process could not be served upon him. He was convicted and imprisoned by the state, and of necessity the state and its officers were acquainted with his whereabouts.” (p. 381.)
The statute relates to the time within which action shall be commenced, not prosecuted after it has been commenced, and the language of the opinion in the Griffith case refers to the same subject, as indicated by the syllabus, which reads as follows:
“Imprisonment in the state penitentiary does not fall within any of the exceptions of the limitations upon criminal prosecutions; and therefore the time of imprisonment of the accused within the state, which passes before a prosecution is begun, cannot be excluded from the statutory period of limitation.” (p. 377.)
The prima facie showing made by the transcript, that the action was commenced on March 8, 1916, was open to dispute. In order that the complaint and warrant should constitute commencement of an action, it was essential that they be employed for the purpose for which they are provided. In the Griffith case, supra, a complaint was filed, but no warrant was issued until the statute had run. It was held no action was commenced before the statute had run. In the opinion the court approved the ruling and language of the supreme court of Michigan in the case of The People v. Clark, 33 Mich. 112:
“The issuing' of the warrant in good faith, and delivery to an officer to execute, is a sufficient commencement, if it appears that the defendant was afterwards arrested upon that warrant and bound over for trial.” (p. 120.)
In the case of In re Clyne, Petitioner, 52 Kan. 441, 35 Pac. 23, a complaint was filed and a warrant was issued. At the time the warrant was issued the county attorney, representing the state, directed the sheriff not to serve it until he saw the sheriff again. The county attorney believed the defendant was absent from the state, and desired time in which to discover sufficient evidence to bind the defendant over. On the day the warrant was issued the defendant returned to the county in which the offense was committed, but the sheriff, following the county attorney’s- direction, delayed execution of the warrant for some five months, although he saw the defendant frequently, and could have made the arrest at any time. The warrant was served after the statutory period had elapsed. In the opinion it was said:
“We think the better rule is that the complaint must be filed and the warrant issued within the period limited by the statute; that it must be issued in good faith, and with the intention that it be presently served, and that the officer must proceed to execute it according to its command; that he must make the arrest within a reasonable time and at the first reasonable opportunity offered him. Neither the county attorney nor the sheriff, nor both together, can, by any ^voluntary act or by any neglect of official duty, extend the limit of the law.” (p. 448.)
To be understood correctly, this language must be read in connection with the peculiar facts to which it .referred and which it emphasized, and in connection with the syllabus of the decision, which states the law of the case as follows :
“A criminal prosecution is commenced when a warrant is duly issued and placed in the hands of a proper officer to be executed in good faith and with due diligence, and if so issued within the time limited by law for the commencement of such criminal prosecution, and executed thereafter without unnecessary delay, even though the arrest be made after the statutory limitation has run, the prosecution will still be deemed to have been commenced in time.
“Where a warrant is so issued, and where the sheriff has frequent opportunities for arresting the defendant, but fails for nearly five months to make the arrest, and the delay is at the request of the prosecuting officer, held, that the time of such unnecessary delay should be computed as a part of the period of limitation prescribed by the statute.” (Syl. ¶¶1, 2.)
The result is, the rule proposed in the Griffith case was adopted without material variation in expression. A prosecution is commenced when a warrant, on which the defendant is arrested, is duly issued in good faith and delivered to the sheriff for service. This is true, although there may be subsequent unnecessary delay in executing the writ. If, however, there be such delay, the time it continues is included in computing the period of limitation.
The defendant claims the full time he was in the penitentiary after the warrant was issued should be credited to him as unnecessary and unreasonable delay in executing the warrant. It is said the sheriff could have executed the warrant in the penitentiary, unless the warden objected, and that it was the duty of the sheriff to press execution of his warrant to the point of taking the defendant into custody and out of the penitentiary, unless prevented by the warden, who was not obliged to interfere. Specific instructions to the jury to this effect were requested, and refusal of the request is assigned and argued as error.
It ought not to be necessary to remind the defendant that the penitentiary is a place of imprisonment, maintained for the detention of persons convicted of felony, a felony being an offense punishable by confinement in the penitentiary. Confinement there may be lawfully terminated in one of two ways — by expiration of the term of sentence, or by virtue of some express provision of law. Departure from confinement under any other circumstances constitutes escape, which is itself a felony. Persons aiding or assisting an escape, and officers permitting an escape, are also guilty. There is no express provision of law which permits a sheriff to reduce the population of the penitentiary in the manner suggested, or which justifies a warden in regarding with indifference an attempt to do so. Therefore, the following instructions given the jury on the subject were eminently correct:
“There is no provision in our statute authorizing or permitting the sheriff of any county in this state to enter the penitentiary and therein to arrest a person there confined under any warrant which he may have for execution.
“While the defendant was in the state penitentiary, or in the actual custody of any officer, under a warrant issued by the warden of such penitentiary, the sheriff oí Pratt county would not and did not have, in contemplation oí law, a reasonable opportunity offered him to execute the warrant and make the arrest of the defendant.”
The defendant introduced some evidence, and offered more of the same kind, that if the sheriff had requested it, the defendant would have been paroled, or otherwise released to his custody for arrest and prosecution. The claim is that this evidence established want of diligence in executing the warrant, and reasonable opportunity to execute it. No duty rested on the sheriff, by virtue of possession of the. warrant, or otherwise, to resort to any such method of procuring custody of the defendant; and the sheriff can be charged with lack of diligence and failure to improve opportunity with respect to nothing except subjects lying in the field of his official duty.
The court has read the abstracts with care, and they are barren of any evidence, admitted or offered' for admission, showing or tending to show that when the complaint was filed and the warrant was issued and delivered to the sheriff, any person having authority to bind the state by motive or conduct, entertained or manifested any purpose other than the institution of a criminal action, to be regularly prosecuted according to law. The warden’s warrant and the state warrant were issued two days apart. The parole officer, holding the warden’s warrant, located the defendant at Johnson, in Stanton county, and brought about his detention at Syracuse, in Hamilton county. The sheriff, holding the state warrant, and believing he had located the defendant at Johnson, started for that place, by way of Syracuse, to make the arrest. The sheriff and the parole officer met at Syracuse. The parole officer refused to surrender the defendant, and took him to the penitentiary. The defendant testified that on this occasion the sheriff said he would do his part to bring the defendant to trial. There was a little evidence that after the defendant had been reincarcerated there was some disposition to allow him to serve out his first sentence; but there was no evidence which in the slightest degree impeached the good faith of any official in instituting or pressing the prosecution, up to the time the defendant was reduced to custody under the warden’s warrant at Syracuse.
It follows that for all purposes of the statute of limitations the warrant was executed within about sixty days from the time it'was issued.
There is nothing else of importance in the case. Rulings of the court admitting evidence complained of were correct, or are not now of consequence, or were not such as to require a reversal of the judgment. Most of the evidence excluded was properly excluded, and none of it was presented to the court in statutory form for its consideration at the hearing of the motion for a new trial. The burden of proof was not shifted to the defendant to establish the fact that the sheriff did not perform his duty in executing the warrant. The state was not required to introduce evidence on the subject because of the presumption. The defendant could do as he liked about it. He undertook to rebut the presumption, just as he undertook to contest other matters concerning which the state had made a prima facie case, as, for example, his presence when the crime was committed. The instruction given the jury relating to service of a second sentence after termination of liability on a former sentence, followed the statute, and was not open to the objection urged against it, because no parole can extend beyond the period of liability. The good faith of nobody but the officials prosecuting the defendant was in issue. The prison board was not on trial, and the court properly instructed the jury that whatever the reason for revoking the defendant’s parole, his recommitment was not punishment for stealing the Bobbitt cattle, and should not be considered in determining his guilt or innocence. The verdict was correct in form.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sought to enjoin the defendants from selling an undivided one-fifth interest in her land, under an execution issued on a judgment in the district court of Washington county, in favor of defendant, The Farmers State Bank, and against Henry J. Schuette and Hannah Schuette. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
The action was tried on an agreed statement of facts, supplemented by some oral evidence on behalf of the plaintiff. This statement of facts and the oral evidence showed the following: On September 26 or 27, 1915, the plaintiff arranged with Hannah Schuette, who then owned the controverted interest in the land, to purchase that interest from her. The consideration given was a promissory note for $3,200, about $400 in cash, and indebtedness due the estate. Hannah Schuette had inherited her interest in the land from her father, who died on September 7, 1915. On September 29, 1915, the bank commenced an action against Henry J. Schuette and Hannah Schuette in the district court of Washington county to recover on a promissory note for $3,000, and on that day caused an attachment to be levied on that interest in the land. The deed conveying the land to the plaintiff was dated October 5, 1915, but was not recorded until November 12 of that year. On November 1, 1915, the attachment was dissolved by the district court, and from the order dissolving the attachment the bank appealed to this court, where the judgment of the district court was affirmed on March 10, 1917. (Bank v. Schuette, 100 Kan. 45, 163 Pac. 1073.) The November, 1915, term of the district court of Washington county began on November 15, and judgment was rendered in favor of the bank and against the Schuettes, on December 16. On April 16, 1917, execution was issued on that judgment and levied on the one-fifth interest in the land. This action was afterward brought to enjoin the bank and D. W. McLeod, as sheriff, from selling that interest under the execution.
The plaintiff argues that the bank obtained no right or interest in, or lien on, the land by virtue of the attachment pro ceeding. It may be conceded that the plaintiff is correct on this proposition, but it does not avail her, for the reason that the judgment against her must be affirmed on the ground that she obtained the deed to the land in fraud of the rights of the bank.
The judgment in favor of the bank became a lien on all the property owned by the Schuettes, or either of them, in Washington county, on the first day of the November 1915 term of court. (Civ. Code, § 416.) The deed to the plaintiff was executed and recorded before the judgment lien attached thereto. The plaintiff says, “There was no allegation in the answer that the transfer was for the purpose of hindering, delaying or defrauding creditors.” That conveyance was attacked by the following allegations in the answer: That the plaintiff was not an innocent purchaser in good faith; that the land was not purchased by the plaintiff for a valuable consideration; that she paid nothing whatever for the deed; and that the plaintiff is not the owner of the undivided one-fifth interest in the land. These allegations charge that the plaintiff fraudulently obtained the conveyance. The answer was not attacked; therefore, its averments should be liberally construed to uphold the judgment. (Bailey v. Bayne, 20 Kan. 657; Sweet v. Ward, 43 Kan. 695, 23 Pac. 941.) Sometimes issues will be considered as enlarged by the consent of the parties. (Hartwell v. Manufacturing Co., 78 Kan. 259, 263, 97 Pac. 432; Custer v. Royse, 104 Kan. 339.) It has been held that the submission of a case on an agreed statement of facts waives all defects in pleading. (Brettum v. Fox, 100 Mass. 234.) In Marts v. Newton, 29 Kan. 331, 336, this court refused to consider objections made to the findings of the trial court on the ground that the findings were incompetent, irrelevant, and immaterial. The court there said, “We cannot discuss these objections, because the findings are based upon an agreed statement of facts, signed by the parties to the action.”
In the present action, no special findings were made, but the court found generally for the defendants. That finding determined, in favor of the defendants, every issue necessary to uphold the judgment. The general finding determined that the conveyance to the plaintiff was made to hinder, delay, and defraud the bank of its just and lawful debts. That determi nation was sustained by the agreed statement of facts and the oral’ evidence.
Filed January 14, 1920.
The defendants urge other propositions which have become immaterial on account of the conclusion reached on the question discussed, and will not be further considered.
- Thé judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
On September 12, 1910, Smith Brothers & Cooper bought of Robert Hanson a quantity of alfalfa hay in the stack, at the agreed price of $8 a ton. The contract, which was in writing, provided that the buyers should have the right to require the total weight of the hay to be ascertained by measuring all the stacks, weighing not more that four of them, and computing the total weight by applying the rule as to the number of cubic feet in a ton so arrived at. The hay was measured on September 26, 1910, the result showing 381,100 cubic feet. On the assumption that 400 cubic feet of the hay weighed a ton, and that the total weight was 952% tons, the buyers within a few days paid the seller $6,622, being the balance due on that basis, $1,000 having been paid at the time the contract was entered into. Afterwards the buyers exercised their option to require a weighing of selected stacks, and two stacks were weighed. They assert that by the standard as so established the weight of all the hay was but 599 tons, or 353% tons less than they had paid for. They therefore brought action against the seller for the amount of their alleged overpayment — $2,830. The defendant contended that the weighing of the two stacks had been made too late to be controlling, and also that the stacks that were weighed were not the ones described by the plaintiffs, but two others of a smaller size.
On a first trial the plaintiffs recovered a judgment for one-half the amount claimed, which was reversed on appeal on the ground that it was the result of a compromise verdict. (Smith v. Hanson, 93 Kan. 284, 144 Pac. 226.) On a second trial the plaintiffs were given judgment for the full amount, but this also was set aside on appeal by reason of the rejection of certain evidence. (Smith Bros. v. Hanson, 101 Kan. 237, 165 Pac. 852.) A third trial likewise resulted in a judgment for the plaintiffs, which is now appealed from: In the opinion on the second appeal it was said that ‘.‘in yiew of the matters already settled or rendered unimportant by the litigation, the evidence upon another trial could well be narrowed so as to consume much less time than heretofore.” (p. 241.) To a request in behalf of the plaintiffs for a more definite statement, the court made this response:
“As it has already been established that the plaintiffs are entitled to recover the price paid for any number of tons, for any of the alfalfa in excess of the number actually received by them; hence, upon another trial the evidence should be confined to the identity of the stacks weighed, including the correctness of the 400-cubic-feet theory, in order thus to determine the number of tons actually received.”
1. (a) The defendant complains that, notwithstanding these expressions by this court, much evidence was introduced not relating to the issues indicated, and that other issues were included in the trial. Whether or not that was the case, the judgment now attacked must be permitted to stand unless it is the result of eroneous rulings, in relation to the admission of evidence or otherwise, operating to the substantial prejudice of the defendant.
The contract contained a provision for the use by the plaintiffs of feed lots on the defendant’s ranch, where the hay stood, until May, 1911, and for his furnishing some supplies in connection therewith. Complaint is made of the admission of evidence in behalf of the plaintiffs tending to show a failure on the part of the defendant to meet his obligations in this regard. The avowed purpose of the evidence was to explain the delay in selecting and weighing the test stacks, to meet an allegation of the answer that it had been agreed that the weighing should be done, if at all, prior to the time it Actually took place, so that the right to correct the estimate in that manner had been lost by lapse of time. The defendant asserts that the admission of the evidence cannot be justified on this theory, because the issue as to whether the weighing had been done in time had been taken out of the case by this court. If it is true (as we understand the defendant to claim) that by virtue of the language of the court above quoted it had been finally determined that the selecting and weighing of the two stacks had taken place in due time, the defendant was not prejudiced by the trial court requiring the plaintiffs to prove the fact over again. Moreover, the defendant asked an instruction on that issue. In any event, we do not regard the evidence as prejudicial. A portion of it, relating to the furnishing of corn by the defendant, was by an instruction expressly limited in its application to the matter of the plaintiffs’ reasons for paying the full price before the two stacks had been selected and weighed.
The petition alleged that the defendant had warranted and represented to the plaintiffs that in the manner in which the hay had been measured 400 cubic feet would weigh a ton, knowing this to be false; and that the plaintiffs had acted in reliance thereon. In the opinion on the second appeal it was said:
“If 400 cubic feet in fact make a ton, any fraudulent intent on the part of the defendant would effect nothing even if proved to have existed; if not, any guaranty to that effect would have been equally potent whether made' fraudulently or honestly. Hence in reality the question of fraud is in no effective sense in the case at all.” (p. 239.)
. And the second paragraph of the syllabus reads:
“Under the circumstances of this case the issue of fraud is practically negligible — the vital question being the amount of hay actually purchased.” (Smith Bros. v. Hanson, 101 Kan. 237, 165 Pac. 852.)
In the trial now under review, evidence was given in behalf of the plaintiffs of the making of such warranty and representation and' of their reliance thereon. The defendant urges that error was thereby committed, and the issue of fraud injected into the case. The evidence seems to have been pertinent as tending to account for the course pursued by the plaintiffs, especially with reference to the time of selecting and weighing the two stacks and to the payment of the full amount of the purchase price before that had been done. The question of fraud was not submitted as a distinct issue — that is, no recovery was authorized on the basis of damages for the perpetration of a fraud. The charge to the jury included a reference to the manner in which fraud might be proved, but instructions on the subject (portions of which were in substance given) were asked by-the defendant, who appears in this way to have recognized the matter as being incidentally involved.
Complaint is made of the admission of evidence of conversations between the parties (a part of which had taken place before the contract was signed) in which the defendant had objected to weighing the hay because of its being at the time too dry. The jury were instructed that no oral agreement as to when the hay should be weighed, made before the written contract, could be considered. With this restriction, the evidence, which obviously was offered as bearing upon the question whether the hay was weighed in due time, and which seems pertinent to that issue, was at all events nonprejudicial.
The plaintiffs introduced evidence that prior to the weigh ing of the two selected stacks an attempt was made to weigh another stack, which failed because of the loss of the slips showing the weights of loads taken from it; and that in the opinion of the witness the hay was not holding out. This is objected to as not bearing upon the issues to be tried. The accuracy of the 400-cubic-foot rule was held on the second appeal to be a secondary issue, bearing upon the question whether the stacks weighed were those designated by the plaintiffs. The evidence referred to is not very persuasive, but we regard it as relevant to that issue.
The plaintiffs were permitted to testify that they fed all the hay purchased of the defendant, and 100 tons more, to 6,000 lambs, and did not feed over 200 pounds per head, the obvious inference being that there was not over 500 tons of the defendant’s hay. This testimony is objected to as an attempt to substitute a different method of ascertaining the quantity of hay for that based on the weight of the two selected stacks. We discover nothing to indicate that such was its purpose, and the amount of the verdict shows that the jury did not accept such a substitution. It tended in some degree to discredit the theory that 400 cubic feet of the hay weighed a ton, and the presumption is that the jury gave it no more effect than it was entitled to.
Other items of evidence objected to are: That the hay was of inferior quality, being coarse and therefore lighter than finer hay; that the method of stacking employed made a given bulk weigh less than where the usual practice was followed; that hay sold by the defendant to another buyer did not weigh a ton to 400 cubic feet; and that a plat introduced in evidence showed the size at the time of the third trial of a hog lot on which one of the stacks was said to have stood. The objections appear to us to lie rather to the weight than the admissibility of the evidence, but in any event we find in it no sufficient ground for reversing the j udgment.
(6) The defendant complains of the refusal to give a number of requested instructions. Many of them were to the effect that certain evidence should not be considered, and the questions raised in that connection are substantially the same as those already discussed. Such of the requested instructions as might properly have been given we regard, either as sub stantially covered by the general charge, or of such character that the failure to give them, in view of the verdict, was not prejudicial. The defendant asked an instruction that no oral agreement as to the time the hay was to be measured, made before the execution of the written contract, could be considered. This was given, with this addition, which is complained of: “unless such parol or verbal agreement was made in connection with said written agreement.” The defendant had pleaded that at the time of the execution of the written contract and “in connection therewith,” it was orally agreed between the parties that if the hay were to be weighed it should be done prior to October 1, 1910. He can hardly have been seriously hurt by the adoption of the language of his own answer. The writing made no provision as to the time when the weighing was to be done. Evidence of a contemporaneous agreement on the same subject, consistent with that embodied in writing, is not necessarily incompetent. (17 Cyc. 638; 10 R. C. L. 1019, 3 Jones on Evidence, § 439.) In view of the manner in which the issue arose, we think it clear that no error was committed in this regard.
With respect to the criticisms of the instructions that were given, we think it enough to say that they sufficiently presented to the jury the vital question in the case — whether the stacks that were weighed were in fact the ones the plaintiffs assert them to have been. The fact that the verdict was for the exact amount called for by that hypothesis shows clearly that the jury found for the plaintiff on this issue; and this is conclusively shown also by the special finding hereinafter referred to. There is no reasonable probability that the instructions on incidental and secondary matters could have improperly affected their conclusion in this regard. On the issue as to whether the two stacks were selected and weighed in due time, an instruction was given on which the defendant places an interpretation which makes it too favorable to him. That, obviously, is not a ground on which he can successfully attack the judgment.
(c) The court refused to submit to the jury a special question asked by the defendant: “Were the stacks of hay fairly measured on September 26, 1910, to the satisfaction of both parties?” The defendant asserts that the question should have been submitted because the plaintiffs had challenged the accuracy of the measurement. The plaintiff’s case was based on the results of the measurement as indicating the number of cubic feet of space occupied by the hay, the dispute being as to its density — the volume as so arrived at that would weigh a ton. An answer either way to the question which the defendant asked to be submitted to the jury would not have affected the verdict.
(d) A question as to how many cubic feet of the hay were required to make a ton was answered by the jury “636 plus.” The defendant asserts that this should have been set aside as contrary to the evidence because of the testimony of a number of witnesses that 343 cubic feet of well-settled alfalfa would equal a tom. The jury rightly interpreted the question as applicable to the particular hay in controversy, and obviously accepted the results of the measurement and the weight of the two selected stacks as fairly indicating the density of the rest.
It is contended that it is a physical impossibility for the two stacks that were weighed to have been located as claimed by the plaintiffs. Even if, as asserted by the defendant, there are inconsistencies in the testimony of the plaintiffs’ witnesses, the resolution of them and the determination of the true location of the stacks was a question for the jury and trial court, and we see no occasion to interfere with the conclusion reached by them.
2. A final contention is that no interest should have been allowed prior to the verdict. It is established by the judgment that the defendant has had the use of $2,380 of the plaintiffs’ money since 1910, and there is no hardship in requiring him to pay for it, whether such payment be regarded as statutory interest or as damages for the breach of his contract, measured by the legal rate of interest. The statute requires the payment of interest for any money after it becomes due, and even for money due on settlement of account from the day of liquidating it and ascertaining the balance. (Gen. Stat. 1915, § 5481.) The return of the overpayment was due as soon as the weight of the selected stacks had been ascertained- — -it then became a mere matter of computation. The amount was entirely definite under the facts as they have now been determined to exist. If the money was obtained by the defendant through his inten tional misrepresentation, it bore interest at once (Ellsworth v. Trinkle, 96 Kan. 666, 156 Pac. 543) ; if through mutual mistake, then from the ascertainment of the truth. (16 A. & E. Encycl. of L. 1011.) The circumstance that the defendant disputed the facts, and upon that basis denied all liability, does not exempt him from the payment of interest. It is said that—
“It has been held that where the amount of the demand is disputed on reasonable grounds and in good faith, or the right to recover is in good faith denied, interest will not be allowed on the demand prior to its liquidation by verdict or otherwise.” (22 Cye. 1515.)
The note to the text quoted cites almost as many cases to the contrary as in its support. Several of those cited as supporting it deal with unliquidated claims — uncertain in amount — and turn upon that fact. (See, in this connection, Lower v. Shorthill, 103 Kan. 904, 176 Pac. 647.) One case subsequent to the note goes the full length of holding that no interest can be allowed where the right of recovery is denied in good faith, and the taking of three appeals is held to be sufficient evidence of the good faith. (Baker County v. Huntington, 48 Ore. 593, 603.) This criterion would save the present defendant from paying interest, but we cannot accept it. We do not concur in the view that the denial of liability, however vigorously made, renders a contract debtor immune from the payment of interest, even in the absence of an affirmative finding of bad faith. The question of good faith becomes a test in some situations, as where an account is to be settled or cross denials are to be adjusted. (Gen. Stat. 1915, § 5481; Trust Co. v. Robinson, 89 Kan. 842, 132 Pac. 979.) But when the question is simply whether at a given time a debt for a fixed amount was owing, and this is decided in the affirmative, the obligation to pay interest follows as a matter of course.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This action was brought by the plaintiff under the intoxicating liquor law to enjoin the defendants from maintaining a nuisance. A temporary injunction was granted, and from the order granting that injunction the defendants appeal. Their contention is that the evidence showed that the place was closed at the time the action was commenced, and had been closed for some days prior thereto; and that therefore no injunction should have been granted. The evidence showed that the defendants had sold Jamaica ginger, Wine of Life, Beef, Wine and Iron, Hostetter’s Bitters, etc., and that these articles had been sold by the defendants for a long time prior to the commencement of this action, and up to within a very few days of that time. No question is raised concerning the intoxicating character of the articles sold.
The cross-examination of the plaintiff’s witnesses developed that the defendant had stated that he had sold the place and had closed it before the action was commenced. After continued sales of intoxicating liquor extending over a period of months, an injunction cannot be avoided by ceasing to sell such liquors a few days before an action for an injunction is commenced. It is an easy matter to sell intoxicating liquors for a time and, when a storm is brewing, cease such sales and close the place until the storm has passed by, and then resume the sale of such liquors, and repeat that operation until the state is successful in getting the place closed.
The evidence was sufficient to justify the court in granting a temporary injunction.
The judgment is affirmed.
Porter, J., dissents.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a husband and wife to enjoin sale of their homestead, pursuant to execution issued on a judgment against the husband. The plaintiffs prevailed, and the defendants appeal.
The petition stated that the land levied on was the plaintiffs’ homestead. The statement was sufficient to warrant the prayer for an injunction, since, in an action of this character, the creditor must show an exception which renders the homestead nonexempt. (King v. Wilson, 95 Kan. 390, 148 Pac. 752.) The plaintiffs, however, pleaded that the judgment, execution and sale were not on account of any obligation contracted for the erection of an improvement. The defendants answered that the judgment was rendered on a note given by the husband for an improvement furnished by the silo company and erected on the premises. At the trial it appeared the judgment was rendered on a note given the silo company for a silo purchased by the husband. The silo was erected on a concrete foundation laid in an excavation, and was stayed by three iron cables attached to posts embedded in the soil. The court took judicial notice of the use of a silo. The plaintiffs claimed the silo blew down and was worthless, but the court properly indicated by its rulings that those facts did not change the nature of the structure to something other than an improvement. The result was, the unnecessary allegation of the petition was disproved, the defendants sustained the burden of showing liability of the homestead to sale, and the judgment should have been for the defendants. That it was not so is attributed to a misconception of the decision in the case of King v. Wilson, supra.
In the case of King v. Wilson, it appeared that Wilson sued Mrs. King for a sum of money. In the same action Wilson pleaded the money was loaned for use in the erection of improvements on the King homestead, and it was understood he was to have a mortgage to secure the loan. This' claim was established against Mrs. King, Wilson was decreed to have an equitable mortgage on the premises, and the mortgage was foreclosed. King then commenced an action to enjoin sale under the decree, on the ground the land was a homestead. At the trial the only proof introduced regarding the nature of the obligation on which the judgment rested was the adjudication of the improvement claim contained in the judgment itself. On this proof an injunction was denied. This court held the adjudication did not bind King, because he was not a party to the suit and judgment against Mrs. King. Since there was no pertinent evidence bearing on the nature of the obligation — that is, bearing on the fact which determines exemption o^ non-exemption — the cause was remanded for a new trial, to find out whether or not an exception did exist rendering the homestead nonexempt from the threatened sale. The second paragraph of the syllabus of the decision clearly and fairly expressed the conclusion of the court. The phrases “on a claim for improvements” and “so far as the homestead exemption is concerned,” were limitations carefully chosen. A further limitation, always implied, is that the language used referred to the controversy under decision. Restated, not to better but to emphasize the former statement, the decision was that adjudication against the debtor spouse alone, in the action on the obligation, of the fact which determines nonexemption of the homestead, is not conclusive against the other spouse, who was not a party to the action, in a subsequent suit brought by the other spouse to enjoin sale of the homestead on the ground it is exempt.
In the opinion in King v. Wilson, misleading language employed in some earlier decisions was noted. Thus in the case of Tyler v. Johnson, 47 Kan. 410, 28 Pac. 198, it was held that if, in the suit on the obligation, the creditor go further and establish against the debtor — the husband — the fact that the obligation was one contracted for the erection of improvements, adjudication of the fact is binding on the husband’s grantee. From general statements made it might be inferred that the adjudication would be binding generally — that is, on all persons, whether parties or privies to the judgment or not.
The creditor’s, right to sell the homestead rests on the fact that the obligation was contracted for the erection of improvements or the like, and not on adjudication of the fact. If the fact exist, he may proceed until his right is challenged; then he must prove the fact. The opinion in King v. Wilson made it clear that in such a case as this the wife’s remedy lies in bringing an action of injunction in which she may challenge the creditor’s right by pleading the homestead character of the property, and may be heard in opposition to the showing which the creditor must then make that the obligation was contracted for the erection of improvements, or for purchase money, or the like.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendants.
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The opinion of the court was delivered by
West, J.:
The defendant, Moyer, sold a stock of goods and fixtures to G. W. Phillips, no attention being paid to the bulk-sales act. There were two mortgages on the fixtures in force when the sale was made, covering a balance due on the purchase price thereof. Moyer owed about $4,500 which was un secured. When Phillips made the purchase he executed to the Central State Bank a mortgage on the property for $2,000, which was recorded on August 3, 1917. This was for money borrowed by Phillips to pay Moyer. When the sale was made Moyer told Phillips he owed no outstanding accounts. No one concerned had any-intention to defraud, but all ignored the statutory requirements. On November 27, 1917, Moyer was adjudged a bankrupt. Claims amounting to less than $500 have been filed in bankruptcy. On February 6, 1918, the Winchester Packing Company obtained judgment against Moyer for $2,027.23, with interest thereon. An attachment was issued and levied on the fixtures sold by Moyer to Phillips, the sale being restrained until the further order of the court. The sale by Moyer to Phillips included merchandise of the value of $400 which has since been sold by Phillips and the proceeds converted to his own use. The Winchester Packing Compány has not filed its claim in the bankruptcy proceedings. When the purchase was made Moyer gave a check to the plaintiff for $317 which remained unpaid at the State Exchange Bank for want of funds and was afterwards paid from money received at the time he sold to Phillips.
The trial court dissolved the attachment, no exception to such order being taken by the plaintiff, and no appeal being taken therefrom by the trustee in bankruptcy, who appeared no further in this matter. The court held that the sale of the goods was in violation of the bulk-sales act, and Phillips was given thirty days in which to answer and set up any reasons he might have why the property he had bought from Moyer should not be subject to sale to satisfy the plaintiff’s claim. Phillips, intervenor, prayed that the sheriff be restrained from taking possession and that the property be left in its present condition until the rights of the intervenor could be determined, which latter order was made on February 8, 1918. Afterwards, by agreement, the property was sold, and the proceeds brought into court. The court found that the money received from the sale of the goods and fixtures should be applied first to the payment of the costs of this action, and the remainder to the Winchester Packing Company, from which findings and judgment the Central State Bank and George Phillips appeal, claiming that such judg ment is contrary to the evidence and not supported by the facts.
The defendants contend that Moyer’s creditors cannot pursue this property because it has been, for the past four months, in the hands of Phillips; that such pursuit could be made only in case of fraud or the making of a fraudulent transfer. It is also suggested that Phillips had bought the property and retained possession four months before the adjudication of bankruptcy.
The plaintiff argues that the sale to Phillips was in violation of the bulk-sales statute, and that, therefore, no title passed as against the plaintiff; that the value of the property at the time of the sale was' $2,900, while Moyer’s indebtedness consisted of $752 secured claims, and $4,000 unsecured; that the plaintiff secured a- lien upon the property, although the attachment was subsequently dissolved, and is entitled to an amount not to exceed the difference between the $2,900, the value of the goods, and $752, secured. It is contended that Phillips is not entitled to be subrogated, as he did not pay the mortgage claims, but merely bought in violation of the bulk-sales act; that while Moyer had a right to prefer his creditors, Phillips could not acquire any rights of subrogation to those preferred by Moyer, and that the claim of the Central State Bank is bad because its president knew when it loaned the money that it was to be used for the purchase of the stock and fixtures sold in violation of the bulk-sales statute, and, therefore, was not a mortgage in good faith. It must be borne in mind that the contest is now between the plaintiff company, on the one hand, and the Central State Bank and Phillips on the other. The plaintiff having proceeded by levy and attachment, although the salé was restrained, finally took judgment and levied execution and thereby took itself out of the category of unsecured creditors.
Of course, Phillips purchased subject to the rights of creditors to appropriate the property for the payment of their debts (Burnett v. Trimmell, 103 Kan. 130, 176 Pac. 6), and until satisfaction of the claims of existing creditors he had but small right in the matter, and practically none at all as against them. Other parties to the litigation, including the trustee in bankruptcy, have dropped out. The plaintiff be gan suit two days after the sale to Phillips, which was July 26, and the bank’s mortgage was not recorded until August 3, following. Phillips sold $400 worth of stock purchased from Moyer and kept the proceeds. It is urged that this should be deducted from what the bank would otherwise receive. On the contrary, it is suggested that its rights were fixed when its mortgage was taken and that any subsequent act of Phillips could not prejudice the rights of the bank or affect its security based upon other property included in the mortgage. But as its title could rise no higher than its source, Phillips, and as Phillips had no right whatever to use the property to secure the bank, so also the bank had no right, as against existing creditors, to' look to such property for security. Under the statute (Gen. Stat. 1915, §4894), the sale was void as to existing creditors, who had the same right to proceed against the property as if it were still held by Moyer. Hence, the source of its title failing, the bank must step aside for the plaintiff, whose claim is substantially larger than the amount realized from the sale under the levy.
“It is obvious that a mortgagor can convey by mortgage only that interest which he possesses.” (11 C. J. 428.)
In Titusville Iron Co. v. City of New York, 207 N. Y. 203,. the court, speaking through Chief Justice Cullen, said:
“At the time of the execution of the contract Hillman had no title' to the property, the subject of this suit, nor does it appear even that, the property was then in existence. Therefore, he could create no lien thereon cognizable at law, whether by way of mortgage, pledge or otherwise. ‘It is common learning in the law that a man cannot grant or charge that which he hath not.’ ” (p. 209.)
“A mortgage of goods which the mortgagor does not own . is void in respect to such goods as against subsequent purchasers or attaching creditors.” (Jones on Chattel Mortgages, 5th ed., § 188.)
(See, also, Brown v. Bolt, 116 Mich. 52.)
We have disregarded the effect of the bankruptcy proceedings, as they do not seem to increase or impair the rights of the parties to this appeal, if indeed, they could be heard as against one another to invoke the bankruptcy proceedings in view of what has taken place.
Other points covered by the briefs touching the claims of other parties are unnecessary to considér, in view of the foregoing.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to require surrender of satisfied promissory notes, to enjoin their transfer, and to enjoin the bringing and prosecution of vexatious suits founded on them. A demurrer to the petition was overruled, and the defendant appeals.
There were ten of the notes. In March, 1916, they were all satisfied, by means which need not be stated, but the defendant refused to surrender them. In June, 1918, the defendant brought suit on one of the notes, and then suffered a dismissal for want of prosecution. In October, 1918, the defendant sued on another note before a justice of the peace. The proceeding was still pending when the plaintiffs commenced the present suit. The petition alleged that the actions brought by the defendant were not instituted in good faith, that the purpose was to harass the plaintiffs, occasion them loss of time and put them to expense, and that the defendant threatened to keep on until he had commenced a separate action on each note.
The defendant cites the cases requiring one in the situation' of the plaintiffs to establish his right at law before seeking equitable relief. The doctrine of those cases became obsolete in this state with abolition of the distinction between actions at law and suits in equity. The defendant also cites cases applying the rule that equity will not interfere when there is an adequate remedy at law. Some of the cases were well decided. Others interpret the rule in a spirit altogether too narrow and illiberal. In this state, the remedy at law must be equally full, complete and efficient with the remedy in equity. If, in this instance, there were but a single note, the plaintiffs might obtain such relief when sued on the instrument. If there were numerous parties to a single note, whom the defendant proposed to sue separately, each one might be left to his remedy at law. A judgment, however, in favor of the plaintiffs, in a suit or suits on one, two, or several of the notes, does not free them from vexation and expense. The defendant’s conduct takes the form of a continuing trespass on the plaintiffs’ time, money, and tranquillity, which they are entitled to end once for all, by a single action in which full relief, including surrender of the satisfied instruments, may be granted.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
The judgment in this case was affirmed on December 6, 1919 (105 Kan. 732), and on the 11th day of February, 1920, defendant’s motion for a rehearing was denied. Upon application, permission to file a second motion for rehearing on certain propositions was allowed. The existence of a partnership between the parties and the extent of the business and property included in the partnership were fully considered and determined in the first hearing, and require no further attention. In his second motion for rehearing defendant urges again that the district court was without jurisdiction to adjüdicate the title to leasehold interests in mines situated in Oklahoma. The answer to this proposition is that the action we have is one in personam. It is contended that a court of equity never decrees the performance of something which it cannot compel, but the district court entered a judgment which it may enforce as against the person of the defendant. The judgment rendered acts upon the defendant and only consequentially upon real estate in another state. Having obtained jurisdiction of the defendant, the court had authority to de termine the partnership relation between him and the plaintiff, and, finding that such a relation existed, it could determine their partnership rights in property in and out of the state, and make a decree enforceable against the defendant who is within the jurisdiction of the court. Authorities to that effect were cited in the original opinion, and many others might have been cited. In Meador v. Manlove, 97 Kan. 706, 156 Pac. 731, where a court of this state rendered a decree declaring a trust in lands in Illinois, it was contended that the court was without jurisdiction to declare a trust and compel a conveyance of land situate in another state, but it was held:
“Where a court of general jurisdiction has secured jurisdiction of the parties who hold the legal title to land in another state, it may render a judgment to impress a trust as to such land and order the trustees to execute a conveyance thereof; and the possible difficulties which may attend the enforcement of its judgment do not in any wise abridge its jurisdiction.” (Syl. ¶ 1.)
In the early case of Penn v. Lord Baltimore, 1 Vesey 444, a court of chancery of England had before it the enforcement of a contract relating to land. in America, and the chancellor decreed specific performance, conceding that it could not be enforced in rem, but holding that the decree, being one in personam, could be enforced in all cases where the party is within the jurisdiction of the court.
In Northern Indiana Railroad Co. v. Michigan Central Railroad Co., 56 U. S. (15 Howard) 233, the court cited Judge Story’s work on the Conflict of Laws, and approved the rule stated by him that:
“A court of chancery, having .authority to act in personam will dct indirectly, and under qualifications, upon real estate situate in a foreign country by reason of this authority over the person, and it will compel him to give effect to its decree, by a conveyance, release, or otherwise, respecting such property.” (p. 243.)
In Massie v. Watts, 10 U. S. (6 Cranch) 148, Chief Justice Marshall, after citing a number of the authorities, said:
“Upon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, this court is of opinion that, in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.” (p. 160.)
In another case, the same court has said:
“A court of equity having authority to act upon the person may indirectly act upon real estate in another state, through the instrumentality of this authority over the person. Whatever it may do through the party it may do to give effect to its decree respecting property, whether it goes to the entire disposition of it or only to effect it with liens or burdens.” (Fall v. Eastin, 215 U. S. 1, 8.)
(See, also, The Cherokee Nation v. The State of Georgia, 30 U. S. [5 Peters] 1; 69 L. R. A. 673; 27 L. R. A., n. s., 420; 10 R. C. L. 365.)
The court having the defendant before it had jurisdiction to render a judgment and apply any equitable remedy that could be enforced against the defendant.
There is a further contention that the court erred in the rendition of a personal judgment against the defendant for the amount found to be due to plaintiff on the accounting that was had. The claim is that the judgment was prematurely rendered, since there were assets of the firm undisposed of. This question was not brought to the attention of the court on the original hearing, but, assuming that it is raised in the record, we find no good ground for the complaint. The defendant joined with the plaintiff in an agreement for the appointment of a referee, who was to find, first, whether or not a partnership existed, and if an affirmative finding was made, an accounting was to be taken by the referee, but that if a contrary finding was made, then no accounting was to be taken. The accounting having- been taken by agreement of both parties, defendant is hardly in a position at this time to challenge the propriety of taking an accounting or the power of a court to render a judgment' upon the accounting. An accounting imports an adjustment of the accounts of the parties and the rendition of a judgment for the balance ascertained to be due. Apart from this consideration, this was an equitable action, and the court exercising equitable jurisdiction had power to apply any remedy that was equitable and appropriate. The accounting was taken up to the time the report was made. The mines owned by the partners were in operation and in the possession of the defendant. He was wrongfully excluding the plaintiff from the possession of the property and appropriating the products of the mines, one-half of which belonged to the plaintiff. It was necessary to obtain action of the court upon the report of the referee and an appeal wias taken from the judgment rendered on the report, which has been pending for months. When the appeal is finally determined the proceeding will still be before the district court for any action that equity may require. A further accounting will be necessary in order to ascertain the amount due to the plaintiff for the product of the mines and the profits of the business belonging to the firm from the time the report was made until the partnership affairs are finally closed. There is no lack of power in the court to provide for periodical accountings and to render personal judgment on each accounting that is made. The court will have the opportunity in the further accounting and in the final disposition of the case to fully protect the rights of each party and, after making proper allowances, to make a proper division and distribution of the assets of the partnership, taking into consideration the amount awarded to the plaintiff on the first accounting.
The remaining question raised on this motion for a rehearing is that there was error in that part of the judgment appointing a receiver and requiring the plaintiff and defendant to assign to the receiver the leases held in the name of each partner. The receiver was directed to sell the property and divide the proceeds of it equally between the partners, after first deducting from the share of the defendant any sum that remained due on the personal judgment then rendered. It is not an uncommon practice in a court of equity to appoint a receiver in winding up a partnership, and especially where one partner wrongfully excludes another from participating in the possession and control as well as the benefits of the business or property of the firm. (Parnell v. Thompson, 81 Kan. 119, 137, 105 Pac. 502; 20 R. C. L. 962.) In view, however, of the character of the litigation and the peculiar circumstances of the case, we think a better practice and a more equitable and appropriate judgment will be to require that the parties shall each assign and transfer directly to the firm the leases mentioned and all other partnership property held in the name of each individual partner. When that is done the court can make such further orders and judgment for the disposition of the partnership property and the division of the proceeds as equity and the circumstances may warrant.
Under the facts found in the case relating to the wrongs practiced by the defendant in denying the plaintiff his rights in the partnership property and in misappropriating plaintiff’s share of the output of the mines and the profits of the partnership business in another state, the court is warranted in having recourse to any equitable and effective remedy. Very broad powiers are vested in a court of equity and they are generally held to be coextensive with the rights of persons to relief. In 1 Pomeroy’s Equity Jurisprudence, § 170, it is said:
“It is absolutely impossible to enumerate all the special kinds of relief which may be granted, or to place any bounds to the power of the courts in shaping the relief in accordance with the circumstances of particular cases. As the nature and incidents of proprietary rights and interests, and of the circumstances attending them, and of the relations arising from them, are practically unlimited, so are the kinds and forms of specific relief applicable to these circumstances and relations.”
It is within the power of the court to order and adjudge that if either party does not assign and transfer the interests and property ordered to be transferred to the firm within a reasonable time to be fixed by the court, that a further accounting be had, not only of the products and profits of the mines and other property of the firm withheld from a co-partner, but also for the value of the share of the partnership property which either party fails to assign and transfer in compliance with the decree of the court. A personal judgment may be rendered on that accounting for the value of the property which is not transferred as the decree directs, as well as for a proper share of any profits or moneys derived from the partnership property since the last accounting and judgment was- made and rendered. A refusal to make a transfer of property of the firm held by the defendant in accordance with the decree of the court is in a sense a conversion of the share of the other partner, but in any event a court of equity has power to make a complete settlement of the partnership affairs and, if the defendant does not comply with the decree of the court to assign and transfer the leases and other partnership property held in his own name, the court, having the defendant before it, has authority after an accounting of values to render a personal judgment for the value of the property not so transferred, property which the defendant has, in effect, wrongfully converted and appropriated to his own use.
The judgment will be modified so as to require the partners to transfer the property held in their individual names to the firm of Apple & Smith, and to make such further orders for the enforcement of the judgment as will be in accordance with the views expressed herein.
So modified, the judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This appeal calls for an examination of the Kansas exemption law, so far as it relates to “stock in trade.”
The defendant kept a millinery store in Norton. Her stock and fixtures were destroyed by fire. The loss was covered by insurance. The defendant owed the plaintiff about $700 on an open account for millinery goods, and plaintiff garnished the proceeds of the insurance policy.
The trial court held that $400 of the insurance money was exempt as proceeds of insurance upon defendant’s exempt stock in trade, but sustained the garnishment as to the residue.
Plaintiff appeals, contending that the millinery goods destroyed by the fire were merchandise, and not stock in trade, and contending also that even if the goods had been exempt the proceeds of the insurance policy which covered the goods were not exempt.
The evidence disclosed that the defendant, who was the head of a family, kept an ordinary millinery store; that her stock consisted of shapes of hats, hat frames, and piece goods such as silks, velvets, ribbons, feathers, and flowers; and that she used these goods in trimming hat frames and in preparing them for sale. She had a separate price for each of these articles, and the price of each hat was the sum of the separate articles composing it plus a charge for her skill and work in putting them together. Plaintiff was in the habit of selling these millinery materials not made up, as occasion arose, but only about five per cent of her stock was thus retailed. At the time of the fire she also had on hand some “pattern” hats which she bought and sold as merchandise, and about fifty hats which she had made up from the materials in her stock.
The Kansas exemption statute is very lenient towards debtors, and it has stood for sixty years practically unmodified by the legislature. So far as here pertinent, it reads:
“Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property: . . .
“Eighth, The necessary tools and implements of any mechanic, miner or other person, used and kept in stock for the purpose of carrying on his trade or business, and in addition thereto; stock in trade not exceeding four hundred dollars in value.” (Gen. Stat. 1915, §4700.)
“None of the personal property mentioned in this act shall be exempt from attachment or execution for the wages of any .clerk, mechanic, laborer or servant.” (Id. § 4703.) •
(See, also, Kansas Stat. 1859 [Territorial], ch. 67,’§11; Complied Laws of 1862, ch. 92, § 11; Gen. Stat. 1868, ch. 38, §3.)
Under the humane and generous purposes of this exemption clause, it has been held that the materials out of which watches are made, together with the finished watches made by the debtor himself, are stock in trade of a jeweler and are exempted from execution if he is the head of a family. (Bequillard v. Bartlett, 19 Kan. 382, Syl. ¶ 4.) It has been held that the finished cheeses made by a cheesemaker herself were exempt from attachment, as well as the equipment necessary for making them. (Fish v. Street, 27 Kan. 270.) The cloth and trimmings out of which a merchant tailor made clothing were held to be exempt as stock in trade. (Rice v. Nolan, 33 Kan. 28, 5 Pac. 437.) Tin used for making tinware and for making a tin roof for a building, as well as the tinware made by the tinner, was held to be exempted as stock in trade in Miller v. Weeks, 46 Kan. 307, 26 Pac. 694.
The critical student of this exemption clause will readily discern that it exempts two distinct kinds of property — (1) tools and implements for use in the debtor’s trade or business, and (2) in addition thereto, stock in trade to the amount of $400 in value. Under our statute, therefore, stock in trade means that form of property owned by a craftsman upon which he exercises his art, skill, or workmanship, and upon which he uses the tools of his trade or business.
It seems clear that the materials which composed the defendant’s property and upon which she exercised her craft as a milliner constituted her stock in trade, and up to the value of $400 they were exempt from seizure under forced process. Of course the “pattern” hats were merchandise, but the fact that a small percentage of the goods was sold as merchandise when opportunity offered, and that they were all susceptible of being sold as merchandise, did not alter their inherent status as stock in trade. (18 Cyc. 1420.) Any other view would practically nullify the humane purposes of the legislature in enacting the statute. The stock in trade of any artisan is susceptible of sale as merchandise, and it would not do to say that if such artisan dared to sell as merchandise a few articles of his stock in trade he would imperil or waive his statutory exemption of $400 worth of it from forced process. Since the margin of insurance money above $400, upon which plaintiff’s garnishment was allowed to operate, was more than sufficient to equal the value of the “pattern” hats sold as ordinary merchandise, that detail of the case will need no attention.
It will next be considered whether the proceeds of the insurance policy covering the exempted stock in trade were likewise exempt from seizure under forced process. Appellant cites cases from other jurisdictions holding that the proceeds of insurance upon exempt property are not exempt. But it was held long ago that our exemption law is in effect a Kansas institution, to be interpreted and applied in the spirit of Kansas jurisprudence, and that Kansas leads, and does not follow, in the interpretation of laws of this character. (Jenkins v. McNall, 27 Kan. 532, 533; Rice v. Nolan, 33 Kan. 28, 31, 5 Pac. 437; Bliss v. Vedder, 34 Kan. 57, 60, 7 Pac. 599.) In our own decisions, analogous precedents are not wanting. It has been held that where a span of horses which was exempt property was sold on execution, the money derived by the sale of the horses was likewise exempt, and was recoverable by the debtor without set-off by his too insistent creditor. (Treat v. Wilson, 65 Kan. 729, 732, 733, 70 Pac. 893.) Where a homestead was sold to satisfy valid liens, the surplus in cash after payment of the liens was held to be exempt from seizure by another judgment creditor who held no lien, so long as the debtor intended to use it in purchasing another homestead. (Mitchell v. Milhoan, 11 Kan. 617, Syl. ¶¶ 3, 4.) In Continental Ins. Co. v. Daly, Adm’x, 33 Kan. 601, 608, 7 Pac. 158, it was said that the insurance money paid as compensation for the loss of an exempt property (a dwelling house) would also be exempt, and that the collection of such insurance money was chiefly the concern of the heirs of the insured, and not of his administratrix.
It would not be helpful to go very far into the decisions of other jurisdictions on the question whether the proceeds of an insurance policy covering exempt property are likewise exempt, for a square conflict among those decisions is discovered as soon as we open the books. In Iowa, New York, Texas and California the view to'which this court inclines seems to be upheld, while New Hampshire, Illinois and Mississippi hold to the contrary. (See note in 19 L. R. A. 34.) In Reynolds et al. v. Haines, 83 Iowa, 342, 32 Am. St. Rep. 311, 13 L. R. A. 719, where a creditor sought to garnish the proceeds of an insurance policy covering the (exempt) library of a physician, the court said:
“The statute must be liberally construed, to carry out its purposes and spirit. . . . The books, instruments, etc., of the physician and surgeon may be kept subject to the authority to change them, by sale or otherwise, in order to procure those of better character or improved construction. It is plain that the physician may sell his books and replace them with better ones. Such sale is a proper use of his books and instruments in his profession. Another proper use of his books and instruments is their preservation from injury and destruction. He may insure them, to protect himself and family from loss from fire. The fact that they were insured would not make them subject to his debts. If they are destroyed by fire, the indemnity secured by insurance stands in the place of the books. It is intended to preserve the physician’s library by securing means for its restoration after it is lost by fire. Surely that indemnity which is the indebtedness of the insurance company, or the money paid by it, stands in the place of the library, and ought to be, as it is, exempt from execution. 'The money due on the policy stands in the place of the property destroyed, and this must be true whether the money takes the place of the property by contract, or is acquired in invitum by proceedings against the owner.” (pp. 343, 344.)
(See; also, 18 Cyc. 1444; 11 R. C. L. 532.)
We doubt if either the true interest of creditors or the interest of the debtor or of society would be served by a narrow construction of our exemption law. If this woman is to discharge her duty to her family — and that is the chief concern of exemption acts (18 Cyc. 1374) — she should be protected and encouraged to reembark in her vocation and to reinvest the proceeds of the insurance in a new supply of her stock in trade. She will thus relieve society of concern touching the support of her family, and she will be enabled in time to pay the plaintiff creditor all that she justly owes. It was on the faith of her honesty, ability and diligence in the pursuit of her vocation that plaintiff sold goods to her upon an open account, and not on the assumption that it could seize all her insurance money if a fire should destroy her exempt stock in trade. If all the insurance money which stands in the place of defendant’s stock in trade is subjected to plaintiff’s garnishment, this woman will have no means with which to resume her business. The oft-declared public policy of this state is that she should be encouraged to do so.
The trial court’s judgment withholding $400 of the insurance money from forced process and sustaining the plaintiff’s garnishment as to the residue was correct.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover the sum of money stated in a written instrument containing the defendants’ promise to pay. The plaintiff recovered, and the defendants appeal.
The instrument sued on reads as follows:
“Wichita, Kansas, October 25, 1917. “The following note is given to cover balance of payment on 112,000 shares of stock in the Wichita Independent Consolidated Companies at fifteen cents per share, and is to be paid as the stock is resold by Buser & Carney.
“On demand we promise to pay L. S. Naftzger, his heirs or assigns, fifteen thousand eight hundred dollars ($15,800), without interest, payments to be made from time to time as the stock is resold, the stock being held in escrow in our office pending sale by us.
“[Signed] Buser & Carney,
“H. J. Buser.”
The petition set forth facts showing maturity of the instrument by expiration of a reasonable time in which to sell the stock. The answers were general denials. At the trial.the only question of importance was whether or not the instrument was in fact what it purported to be. The defendants contended the instrument was a mere memorandum and receipt “to cover the terms of an oral agreement” to the effect that in consideration of the purchase from the plaintiff of part of the shares and payment of $1,000 therefor by the defendants, the plaintiff granted the defendants an option to sell the remainder of the shares on a brokerage basis which would net the plaintiff fifteen cents per share and allow the defendants a commission; and that the stock was delivered to the defendants on “the express understanding and agreement” that the defendants were not to be liable to the plaintiff for the money mentioned in the instrument, except on the happening of a contingency, namely, a sale of the stock at a price of fifteen cents or better per share. Evidence to sustain this contention was offered and rejected, and permission to amend the answers to present the contention was refused. The defendants having made admissions in their testimony sufficient to show maturity of the paper, the court took the case from the jury and rendered judgment for the plaintiff.
The instrument expresses an obligation to pay which is not itself conditional or contingent. Time of payment alone is uncertain, and the law in such cases supports instead of defeats the obligation, by implying a reasonable time. With time of payment thus fixed, the instrument is definite and complete, and discloses an absolute liability which could hot be defeated by parol evidence of conditional liability. The cases in which written obligations were not permitted to be whittled down, or overthrown, or converted into something else, by parol evidence of contradictory agreements between the parties, are so numerous that citation is not necessary.
The defendants say the writing is ambiguous, and' consequently parol evidence was receivable to remove the ambiguity. The opinion in the case of Greenstreet v. Cheatum, 99 Kan. 290, 161 Pac. 596, is quoted as follows:
“The intention of the parties as evidenced by their agreement and the attending circumstances must determine whether the debt is contingent or absolute.” (p. 292.)
In the case of Railway Co. v. Truskett, 67 Kan. 26, 34, 72 Pac. 562, this court observed that mere assertion by a party to a written contract that uncertainties and ambiguities exist in it, will serve no purpose when, by perusal of the writing, the court can find no equivocal language employed. There is no uncertainty in the instrument sued on, except that already considered. The quotation, however, may be accepted as pat. The agreement referred to is the written agreement, when the parties have reduced their negotiations to writing, and attending circumstances do not embrace oral stipulations which would nullify the written terms, instead of elucidate their meaning.
In this instance there was evidence of attending circumstances of the kind contemplated by the quotation. The stock was owned by Naftzger. Buser and Naftzger had a conversation relating to the subject of the contract at Naftzger’s bank in Wichita. Buser left the bank, went to his own office two blocks away, had the instrument prepared, and signed it. He returned to the bank, had a conversation with Naftzger, delivered the signed instrument to Naftzger, received the stock, and took it away with him. At that time there was a market for the stock. Naftzger could have sold it to others, but Buser, who already owned 4,000,000 shares, wanted to keep it off the market and boost the price to thirty cents per share.
The defendants cite the case of Bartholomew v. Fell, 92 Kan. 64, 139 Pac. 1016, in which parol evidence was offered, not to contradict the instrument, but to show that, although delivered, it was not to take effect except on the happening of a future event. The defendants also cite the case of Burke v. Dulaney, 153 U. S. 228, involving conditional delivery, and other cases of like tenor. A clear distinction results from these facts: In the cited cases the parol evidence tended to prove that, while the form of a written contract existed, no engagement was in fact ever concluded entitling the person claiming the benefit of the instrument to enforce its stipulations. In the present case there is no dispute that a binding contract was made, which took effect when Buser delivered the signed instrument to Naftzger and walked away with the stock. The dispute relates to what the agreement was. The parties have made a written memorial of it, and proof of conversation which would impeach the writing is not admissible.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against him on a promissory note. The action was commenced before a justice of the peace. Judgment was there rendered in favor of the plaintiff, and the defendant appealed to the district court. The bill of particulars alleged “that the consideration for the note was procured by fraud.” A motion was filed in the district court asking that the words quoted be stricken out of the bill of particulars, or that the’plaintiff be required to plead a cause of action on the ground of. fraud. The plaintiff confessed the motion by striking out those words. The defendant then pleaded a discharge in bankruptcy, and the plaintiff, to avoid that defense, averred that there was fraud on the part of the defendant in incurring the indebtedness for which the note was given; that the defendant by false representations procured from the plaintiff $200; and that after the false representations had been discovered by the plaintiff, she accepted from the defendant the $200 note sued on. To the reply the defendant filed a motion to strike out all the allegations concerning fraud, on the ground that they constituted a departure from the cause of action set up in the bill of particulars, and filed a demurrer for the same reason and for the further reason that the reply did not contain facts sufficient to constitute a reply to the answer of the defendant, or to constitute a cause of action against him. The motion and demurrer were overruled. ^
1. The defendant argues that the reply of the plaih^iff constituted a departure from the cause of action alleged Mn her bill of particulars. The action was on a promissory note.\ The defendant pleaded a discharge in bankruptcy; to avoid that defense the plaintiff alleged that the defendant by false repr sentations procured the money from the plaintiff. Section of the bankruptcy act in part reads, “A discharge in bankruptcy shall release a bankrupt from all his provable debts except such as . . . are liabilities for obtaining property by false pretenses or false, representations.” The plaintiff’s reply brought the debt for the recovery of which this action was commenced, within that section of the bankruptcy act.
A definition of a promissory note might very properly be that it is an evidence of indebtedness from the maker to the payee by which the maker agrees to pay the payee a definite sum at a certain time. That a promissory note is not in and of itself an indebtedness, but is evidence of such indebtedness, seems to be established by unquestioned authority.
Collier- on Bankruptcy, 11th ed., 960, says:
“A note or bill of exchange is provable against the bankrupt maker; it is the debt evidenced by the note which is provable.”
It is said in 3 Blackstone’s Commentaries, 154, that:
“The legal acceptation of debt is, a sum of money due by certain and express agreement; as, by a bond for a determinate sum; a bill or note; a special bargain; or a rent reserved on a lease; where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it.”
In 1 Bouvier’s Law Dictionary, Rawle’s 3d revision, 786, this definition of debt is given:
“Debt. A sum of money due by certain and express agreement.”
1 Words and Phrases, 2d series, 1234, says:
“ ‘Debt,’ as used in the bankruptcy act includes any debt, demand, or claim, provable in bankruptcy.”
Meriwether v. Garrett, 102 U. S. 472, 513, uses this language :
“Debts are obligations for the payment of money founded upon contract, express or implied.”
1 Daniel on Negotiable Instruments, 5th ed., § 71, says:
“The execution of a note does not import a debt existing previous to the period of its execution, but its effect is to give the debt and the note • a contemporaneous origin.”
The note was the evidence of the debt created by the fraud of the defendant. That fraud was not extinguished when the note was given. The fraud was set up in the reply, not as a cause of action against the defendant, but to avoid the defense that had been pleaded by him after the bill of particulars was filed. The action continued as an action on the promissory note. The reply did not constitute a departure from the cause of action alleged in the bill of particulars. (Broadnax v. Bradford & Co., 50 Ala. 270; Louisville Banking Co. v. Buchanan, 117 Ky. 975, 987; Brown et al. v. H. F. and W. P. Broach, 52 Miss. 536, 541; Blackman v. McAdams, 131 Mo. App. 408; Argall v. Jacobs et al., 87 N. Y. 110; Zimmern v. Blount, 238 Fed. 740, 745.) Contrary to these decisions is Strauch v. Flynn, 108 Minn. 313. But we think that the reasoning in that case is not convincing, and that the conclusion reached is not correct.
2. Another matter argued by the defendant is that the action is barred by that part of the statute of limitations which provides that actions for relief on the ground of fraud must be brought within two years. (Civ. Code, § 17, subdiv. 3, Gen. Stat. 1915, § 6907.) The difficulty with this argument has been pointed out. The action is not for relief on the ground of fraud; the action is on a promissory note. Fraud is set up by the plaintiff, not as a cause of action, but to avoid the defense alleged by the defendant. The action being one on a promissory note is not barred by the two-year statute of limitations. (Louisville Banking Co. v. Buchanan, 117 Ky. 975, 987.)
3. The defendant contends that the plaintiff waived the fraud by accepting the note from the defendant after she discovered the fraud, and by striking from her bill of particulars the words, “That the consideration for the note was procured by fraud.” Lack of consideration for a note, fraud or duress in procuring it, or illegality of consideration therefor, may be shown in defense in an action thereon between the parties thereto. The same defenses may be urged in an action on a renewal note. (Water Power Co. v. Brown, 23 Kan. 676; Hutchins v. Stanley, 88 Kan. 739, 129 Pac. 1180; Carey v. Myers, 92 Kan. 493, 509, 142 Pac. 957; Ross & Waldo v. Holman, 97 Kan. 331, 333, 155 Pac. 37.) The reason for the rule allowing such defenses against a renewal note cannot be other than that the debt remains the same. In 21 Cyc. 517, this language is found:
“Land which has become subject to the payment of purchase-money continues chargeable therewith, although the original indebtedness is repeatedly changed in form, provided it can be traced. . Hence, if the original debt is evidenced by a note secured by indorsements or by mortgage, or has been renewed by other notes, although for a different amount, or with a different rate of interest, or if the original or renewal note has been reduced to judgment, the homestead remains liable for the payment of the purchase-money so evidenced.”
That principle is supported by the authorities there cited. If pleading the fraud to avoid the discharge in bankruptcy was not a departure from the action on the note, it must be because the debt remained the same notwithstanding the note.
From all the foregoing it must follow that fraud in procuring money for which a note is given may be shown to avoid a defense set up against the note in an action thereon. The taking of the note by the plaintiff after she had discovered the defendant’s fraud, and striking out of the bill of particulars the allegation concerning fraud, did not take the indebtedness that was evidenced by the note out of the operation of section 17 of the bankruptcy act. The debt remained one for obtaining property by false pretenses and false representations, and the fraud was not waived so as to discharge the defendant from his obligation to pay the note.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal from a judgment granting to the plaintiff a divorce from the defendant..
1. The principal question argued is that the evidence did not justify the court in granting a divorce to the plaintiff. One of the grounds alleged for divorce was extreme cruelty. The evidence tended to show that the defendant cursed the plaintiff and called her vile and obscene names in the presence of her two children, a boy and a girl, almost grown at the time of the trial, the children of a former husband. The language used was coarse, brutal, cruel, and such as no man should use toward his wife under any condition, unless he intends to wound her feelings and humiliate her without striking her. In his abstract the defendant states that—
“No evidence was introduced by plaintiff tending to show that the mental feelings of plaintiff were wounded or her peace of mind destroyed so as to seriously impair the health or endanger the life of plaintiff; or that the legitimate objects and aims of matrimony were destroyed. No evidence was introduced tending to show that the words relied on by plaintiff as constituting cruelty were uttered without justifiable cause and for the purpose of inflicting pain.”
A review of the cases decided by this court involving the question now presented may be of some benefit in reaching a correct conclusion in the present action. In Gibbs v. Gibbs, 18 Kan.' 419, a divorce was granted and the judgment was affirmed for language and acts, and the court there said:
“Where the conduct of the husband is such that the life or health of the wife may be endangered by his acts toward her, and upon the evidence in the case the district court has granted a decree of divorce, the supreme court will not, upon review of the proceedings, reverse such judgment because the evidence is contradictory and conflicting.” (Syl. ¶ 2.)
In Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122, the court affirmed a judgment granting a divorce to the husband where the wife had deliberately and with subtlety, and apparently with an intention to injure the feelings and reputation of the husband, accused him of infidelity.
In Avery v. Avery, 33 Kan. 1, 5 Pac. 418, a judgment granting a divorce to the wife on the ground of extreme cruelty was affirmed. There the evidence recited tended to show that the husband repeatedly, in conversation and by letter, accused the wife of infidelity, but there is nothing in the opinion to show that the wife’s mental feelings were wounded, her peace of mind destroyed, her health impaired or endangered, or the legitimate object and aims of matrimony destroyed, except that the opinion recites that a “lady who visited them about six months, when their little girl was a year and a half old, testified ‘that during the time she was there, Mrs. Avery always treated her husband kindly and considerately, and when abused by him would not answer back, but usually walked away and cried about it.’ ” (p. 4.) This court declared that “Avery was guilty of extreme cruelty.” (p. 6.) Other than the statement concerning the evidence that Mrs. Avery cried when abused, the Avery case is very much like the present one.
In Masterman v. Masterman, 58 Kan. 748, 51 Pac. 277, a decree granting a divorce on the grounds of extreme cruelty in the use of language implying infidelity, was reversed. There the husband, a physician, on account of his conduct was suspected by his neighbors of being guilty of immoral relations with some of his patients. Knowledge of that conduct came to the wife, and she remonstrated with him concerning it, upbraided him about it, and slept in a different room on account of it. The court said:
“In order to support a charge of extreme cruelty in an action for divorce, where words alone are relied on as constituting the cruelty inflicted, it must appear that the words were uttered without justifiable cause, and for the purpose of inflicting pain. When they are uttered merely as a complaint against the apparent misconduct of the other, or as the result of natural feelings excited by his misconduct, they are insufficient to constitute cruelty within the meaning of the section of the statute authorizing a divorce for that cause.” (Syl. ¶ 2.)
The court also said:
“We adhere to the doctrine that words may be as cruel as blows.”
Of the cases decided by this court, the strongest one in favor of the defendant, is Rowe v. Rowe, 84 Kan. 696, 115 Pac. 553. There the judgment granting a divorce was reversed. The evidence tended to show that the husband used toward his wife opprobrious epithets not nearly so severe as those used in the present case. The evidence also tended to show that the husband neglected to provide proper medical attention, and that when she absented herself from, his room he forcibly undertook to carry her back. The court there said:
“Extreme cruelty exists when the conduct of the husband or wife is such that the life or health of the other may be endangered, or when such conduct unjustifiably wounds the mental feelings or so destroys the peace of mind as seriously to impair the health or endanger the life of the other, or is such as utterly destroys the legitimate objects and aims of matrimony; and when words alone are relied on it must appear that they were uttered not merely as complaints against the real or apparent misconduct of the other, but that they were uttered without justifiable cause and for the purpose of inflicting pain.” (Syl. ¶ 1.)
That action was again tried, and judgment granting a divorce to the wife was again rendered, and the action was again appealed to this court. (Rowe v. Rowe, 89 Kan. 592, 132 Pac. 208.) In affirming the last judgment, the court said:
“When this case was here before the court was of the opinion that the evidence, or that portion of it to which our attention was challenged by the abstracts, was insufficient to sustain the charge of extreme cruelty, and the cause was reversed. (Rowe v Rowe, 84 Kan. 696, 115 Pac. 553.) An amended petition was afterwards filed in the court below and the cause was sent to another county where it was tried before a different judge, with the same result as at the first trial. We are again' asked to reverse a decree granting a divorce on the ground that it is contrary to the evidence; and as a further ground it is urged that the evidence is in no essential respect different from that introduced at the former trial, and that therefore the matter was res judicata. The evidence in the present case is deemed sufficient to sustain the finding of extreme cruelty.”
The language used by the defendant toward the plaintiff in and of itself was cruel; and when used in the presence of her children, it could not do other than humiliate her and wound her feelings. The court heard the stories of these people, saw them on the witness stand, and determined that by the language used the defendant had been guilty of extreme cruelty toward the plaintiff. Nothing has been shown that would justify this court in saying that the finding of the trial court was not correct. If the former decisions of this court are analyzed, and the language used by the parties, as therein set out, and the results declared on the use of that language are compared with the language used by the defendant in the present action and with the conclusion now reached, it cannot be said that the former decisions are in any way in conflict with the present one.
2. The petition was filed June 7, 1918. On March 28, 1919, the plaintiff filed an amended petition making the accusation of extreme cruelty more definite and certain. Trial was had on April 7, 1919. The defendant objected to going to trial for the reason that he had not the statutory time in which to file his answer, and for the further reason that owing to misfortune he had been unable to comply with certain orders of the court. The original petition had alleged extreme cruelty, but did not specify of wjiat that extreme cruelty consisted. It was within the discretion of the court to permit an amended petition to be filed. (Civ. Code, § 140, Gen. Stat. 1915, § 7032; Hargrove, Sheriff, v. Woolf, 34 Kan. 101, 8 Pac. 192; Fire Ins. Co. v. Amick, 37 Kan. 73, 14 Pac. 454; Stith v. Fullinwider, 40 Kan. 73, 19 Pac. 314; Farmers’ Bank v. Bank of Glen Elder, 46 Kan. 376, 378, 26 Pac. 680; Torpedo Co. v. Petroleum Co., 75 Kan. 530, 89 Pac. 913.)
When the amended petition was filed, it was within the discretion of the court to fix the time for trial. (Rice & Floyd v. Hodge Bros., 26 Kan. 164; C. K. & W. Rld. Co. v. Wilkinson, 42 Kan. 337, 22 Pac. 412; Broion v. Brown, 62 Kan. 666, 672, 64 Pac. 599; Buchanan v. Insurance Co., 94 Kan. 132, 135, 146 Pac. 411; Thompson v. Machine Co., 94 Kan. 453, 455, 146 Pac. 1188.)
The judgment is affirmed.
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Opinion by
Green, C.:
This was an' action for an injunction against the city of Olathe and its officers to restrain them from enforcing certain orders to open portions of certain ■streets and alleys which had been inclosed by the plaintiff below. The trial court made the following findings of fact:
“1. The defendant is a city of the second class, duly incorporated and organized as such under the laws of the state of Kansas.
“2. In the year 1857, John T. Barton surveyed and laid off the southeast quarter of section 26, and the northeast quarter of section 35, all in township 13, of range 23, in Johnson county, Kansas, into lots, blocks, squares and streets for a town-site, and platted and prepared a map of the same, and designated it as the town-site of Olathe, Johnson county, Kansas.
“3. At the time Barton located on said lands and commenced surveying and platting the same, there were no other occupants thereon except those interested in the town company, but while the same was being surveyed and platted, other parties came and located on said lands with the view of purchasing lots.
“4. Barton entered said lands at the general land office at Lecompton, Kansas territory, on the 17th day of May, 1858, the S. E. of said section 26 (being the quarter-section in which the lots, blocks and streets hereinafter mentioned are all situated) being entered by said Barton as ‘President of the Olathe Town-Site Corporation/
“5. On said 17th day of May, 1858, there were twenty-seven inhabitants on said lands, some on each of said quarter-sections.
“6. Before the completion of said survey and the platting of said town-site, Barton formed a town company of not less than five members.
“7. On the 20th day of February, 1857, the legislature of Kansas territory passed the act offered in evidence, ‘ To incorporate the city of Olathe/
“ 8. Afterward, and about the month of May or June, 1857, the inhabitants of said town-site held a town or city election, and said John T. Barton was elected mayor.
“ 9. On the 11th day of May, 1858, the legislature of Kansas territory passed the act offered in evidence herein ‘Incorporating the city of Olathe/
“ 10. In the summer of 1857, said John T. Barton hád the map of said town-site lithographed, and said town company distributed numerous'copies thereof among the inhabitants of said town-site and throughout the country, and Barton filed a copy of said map or plat in the office of register of deeds of Johnson county, but that the copy filed as aforesaid was not acknowledged, and there was no certificate or other evidence thereon that it was filed by Barton or anyone acting for said town company.
“11. The plats offered in evidence, including the plat filed in the register of deeds’office in 1868, are copies of the original plat and map made from the original survey of said town-site by said Barton in 1857.
“ 12. Said town company sold the lots on said town-site by the numbers of the lots and blocks as designated on said plat and by reference thereto, and the numbers of the lots and blocks and the names of the streets in said city ever since have been and now are the same as designated on said original plat, and the lots and blocks and streets in said city have uniformly been known and designated as on said original plat.
“13. On the 26th day of March, 1862, the United States issued a patent to the S. E. ¿ of section 26, township 13, of range 23, in Johnson county, Kansas, being the quarter-section in which the lands and streets in controversy are situated, to John T. Barton, ‘President of the Olathe Town Company, in trust for the several use and benefit of the occupants of the town-site of Olathe, according to their respective interests, and as the proper corporate authority under the town-site act.’
“14. Barton has not executed any deed or other conveyance of said town-site to said town company.
“15. The proclamation of the president of the United States opening the lands on which said town-site was located for entry and settlement, was officially published in the Lecompton Democrat on the 26th day of March, 1858.
“16. At the time of the survey of said town-site in 1857, as aforesaid, the lots and blocks in said town-site, including the blocks 9, 24, and 25, and the lots in said blocks, were staked off as surveyed and platted.
“17. The streets in said city were worked and graded, have been worked and graded by the city authorities as originally surveyed and platted as aforesaid, and in the greater part of said town-site the lots and blocks have been fenced or occupied by buildings, and the travel has been on the streets as originally platted.
“18. The portion of Prairie street between blocks 9 and 24, and that portion of Spruce street between blocks 24 and 25, have never been worked or graded by said city, or traveled as streets by the public.
“19. In 1871, the plaintiff being employed by the city council of Olathe for the purpose, made a re-survey of said town-site, traced the blocks and streets, and made a plat according to the original survey and plat thereof, and in said survey surveyed said blocks 9, 24 and 25, but did not trace said Spruce and Prairie streets through or between said blocks, and the map of said re-survey was submitted to and approved by the city council.
“ 20. Plaintiff has been a resident of the town-site of Olathe since March, 1858, and was a resident of the quarter-section of land in which the said lots, blocks and streets are situated, on May 17,1858.
“21. Plaintiff took possession of said blocks 9 and 24, and part of block 25, in 1866, plowed the same, and in 1867 fenced said lands, and ever since said time has had all said premises inclosed in one field, farming the same from year to year during all of the time since 1867, and was in the sole, exclusive and undisturbed possession of said premises, under claim of ownership and color of title from the year 1866 until the 18th day or 19th day of July, 1885, at which time said defendant by its officers committed the acts complained of in plaintiff’s petition.
“22. On the 18th or 19th day of July, 1887, the street commissioner of said city, acting under the orders and direction of the mayor and city council of said city, cut down and destroyed the fence of plaintiff across said Prairie street at the point where said street intersects the east line of blocks 9 and 24, and across Spruce street at the intersection of the east line of blocks 24 and 25, and opened said streets between said blocks, and the cost to plaintiff of repairing said fence was $7.
“23. Said streets have no outlet from the west line of said blocks, and there was, at the time the same were opened by said street commissioner as aforesaid, no public need for the use of said streets through said blocks.
“24. All of said lots have been taxed since 1857, and at the time plaintiff took possession of said lots in 1866, he held tax deeds from said Johnson county to a large number thereof.
“25. Plaintiff has sold lots in said blocks since his occupancy of the same as aforesaid, and conveyed said lots by the numbers of the lots and blocks, ‘as described in the plat of the town of Olathe.’ ”
And from the foregoing facts, the court made the following conclusions of law:
“1. Said Spruce and Prairie streets are legal public'streets through and between said blocks above mentioned.
“ 2. The city of Olathe has the right by its officers to open said streets for the use of the public between said blocks 9, 24 and 25, and to remove all obstructions therefrom, including the fences of the plaintiff erected thereon.
“3. The plaintiff is not entitled to the relief prayed for in his petition.
“4. The temporary injunction heretofore granted herein, should be dissolved.”
The contentions of the plaintiff in error are, that there was no lawful entry of the town-site of Olathe; that the patent thereto is void; that there was neither a statutory nor common-law dedication of the town-site; and that there was an adverse enjoyment of the alleged streets and alleys for the statutory period of fifteen years.
The claim is made in behalf of the city that there was a dedication of the streets and alleys and public grounds, as platted by John T. Barton in 1857, and subsequently recognized by the plaintiff in error, and that by reason of such recognition he is estopped from questioning the validity of such plat and dedication.
I. To determine the question of the sufficiency of the dedication, it will be necessary to consider the act of congress “For the relief of citizens of towns upon the lands of the United States, under certain circumstances:”
“That whenever any portion of the surveyed public lands has been or shall be settled upon and occupied as a town-site, and therefore not subject to entry under the existing preemption laws, it shall be lawful, in case such town or place shall be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judges of the county court for the county ip which such town may be situated, to enter at the proper land office and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof according to their respective interests; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated,” etc. (5 U. S. Stat. at Large, 657.)
We are of the opinion that this act of congress conferred sufficient authority to enter the land for the purposes indicated, and this included streets, alleys, lots, blocks and squares. This seems clear from the decision of the supreme court of the United States in the case of Ashby v. Hall, 119 U. S. 526, in construing the act of congress of March 2, 1867, which is identical, almost, in language with the above. The court said:
“As thus seen, the act required the entry of land settled upon and occupied, to be in trust ‘for the several use and benefit of the occupants thereof according to their respective interests.’ The very notion of land settled upon and occupied as a town-site implies the existence of streets, alleys, lots and blocks; and .for the possession of the lots, and their convenient use and enjoyment, there must of necessity be appurtenant to them a right-of-way over adjacent streets and alleys. The entry of the land carried with it such a right-of-way. The streets and alleys were not afterwards at the* disposal of the government, except as subject to such easement.” *
To supplement the act of congress, the territorial legislature passed §11 of chapter 156 of the Laws of 1855, and §11 of chapter 24 of the Laws of 1859, which provided that—
“The plats of all cities and towns which have heretofore been laid off, or which may hereafter be laid off on public lands within this territory, shall be filed with the register, and recorded as aforesaid, which plats shall accurately set forth the streets, squares, alleys, parks and avenues, and the width and extent thereof, which are intended for public use, and when so filed they shall be deemed a sufficient conveyance of such streets, squares, alleys, parks and avenues to such purposes, and any person occupying or in anywise obstructing such streets, squares, alleys, parks or avenues shall be held liable for damages as if such streets, squares, parks or avenues had been absolutely conveyed to the public use as in the third section provided.”
As suggested, the words “as in the third section provided” should be “as in the sixth section provided.”
On the 17th day of May, 1858, this land upon which the town-site was located was entered at the general land office at Lecompton, by John T. Barton, as president of the Olathe Town-site Corporation; and on March 26, 1862, the United States issued a patent therefor to the said Barton, president, etc., in trust for the benefit of the occupants of the town-site of Olathe, according to their respective interests, under said act of May 23,1844. This settles the question of the dedication of this land for a town-site, and as indicated in Ashby v. Hall, supra, necessarily implies the existence of streets and alleys. The evidence shows, too, that there was an acceptance. The site was surveyed into lots and blocks, streets and alleys, the occupants incorporated, and the officers made deeds in accordance with the plat. The rule with reference to dedication and acceptance has been stated by Judge Dillon, in his work on Municipal Corporations. (Vol. 2, § 628.)
It should be remarked, however, that an incomplete or defective statutory dedication will, when accepted by the public, or when rights are acquired under it by third persons, operate as a common-law dedication by the owner.* The supreme court of Illinois has held that an unsigned and unacknowledged plat recorded and acted on, is effective as a common-law dedication. (Godfrey v. City of Alton, 12 Ill. 30; Alvord v. Ashley, 17 id. 363; City of Belleville v. Stockey, 23 id. 441; Waugh v. Leech, 28 id. 488; Field v. Carr, 59 id. 198; Village of Fulton, v. Mehrenfeld, 8 Ohio St. 440; Baker v. Johnston, 21 Mich. 319; Banks v. Ogden, 2 Wall. [69 U. S.] 57.)
The court below found that the plaintiff had taken tax deeds from Johnson county for a large number of lots, and several in the blocks which he had inclosed, and had conveyed lots by the numbers of the lots and blocks “as described in the plat of the town of Olathe.” This, we think, would amount to a dedication, so far as he was concerned. “Dedication of streets and public places properly marked and designated upon the plat of a survey, of urban property, is ■complete upon conveyance being made of lots included in such survey, with reference to such plat, though not properly certified for record. Such conveyances work an estoppel in favor of the grantees, and no subsequent revocation can be made without their consent, and the rights so granted may be adopted and enforced by the public authorities.” (Bartlett v. Bangor, 67 Me. 460-465; 2 Dill. Mun. Corp., § 640, and cases there cited; Brooks v. City of Topeka, 34 Kas. 277.)
We do not think the plaintiff in error is in a position to •question the entry of this land for the purpose of a townsite, or to challenge the validity of the patent issued by the government.
II. We consider next the claim of the plaintiff in error of the non-user of the portions of Prairie and Spruce streets and the alleys inclosed, and the adverse enjoyment of the same for the statutory period of fifteen years. The limitation claimed by the plaintiff in error has no application to streets and alleys. The city of Olathe does not own the streets and .alleys in question, or any portion of them, and could make no disposition of them. And no laches upon the part of the •city, or any of its officers, could impair the rights of the traveling public. This court has said in the ease of Gould v. City of Topeka, 32 Kas. 485:
“ In Kansas, as well as elsewhere, cities do not own the public streets. In Kansas, the fee-simple title to the streets is •vested in the counties in which the cities are situated, and is so vested, not for the benefit of the counties or the cities merely, but also for the benefit of the entire traveling public, and the ■cities are vested only with the control and management of the streets; and this control and management is not merely for the benefit of the cities themselves, but is also for the benefit of the entire traveling public. This control of streets, however, is not wholly discretionary, or judicial, or quasi-judicial, or legislative, and is not divided or shared with other corporations, boards or tribunals, but it is absolute and exclusive in the cities; and, as we think, it is not conferred upon them merely as a benefit which they may exercise, or not, at their option or discretion, but is imposed upon them also as an absolute and mandatory duty, which they have no right to evade or avoid. Generally, they must keep their streets in a safe and proper condition at their peril.”
Judge Dillon has stated the rule in his work on Municipal Corporations (vol. 2, §675):
“It will perhaps be found that cases will arise of such a character that justice requires that an equitable estoppel shall be asserted even against the public, but if so, such cases will form a law unto themselves, and do not fall within the legal operation of limitation enactments. The author cannot assent to the doctrine that, as respects public rights, municipal corporations are within ordinary limitation statutes. It is unsafe to recognize such a principle.”
It seems clear from reason and the great weight of adjudicated cases, that the statute of limitations cannot be invoked against cities for a failure to open portions of streets and alleys dedicated to the public use. Cities, under our law, are charged with the imperative duty of opening and keeping in repair these thoroughfares; the obligations they owe to the public are paramount, and should control. This duty resting upon the municipalities, and these obligations of a public interest must be exercised as the public wants demand.
“Immediate opening and user, by the public, of all the streets for their entire length, or immediate formal acceptance by some competent public authority, cannot be necessary to give effect to a dedication of land to the public use of a street, by the making of a town plat, and the selling and conveying of lots with reference to the plat. A municipality must be permitted to wait its reasonable time for opening and improving its public streets, as its own resources and the public need may allow and require, without thereby rendering its streets subject to appropriation for the exclusive use and enjoyment of individuals.” (Town of Lake View v. Le Bahn, 120 Ill. 92.)
“Until the time arrives when any street or part of a street is required for actual public use, and when the public authorities may be properly called upon to open it for public use, no mere non-user of any length of time will operate as an abandonment of it, and all persons in possession of it will be presumed to hold subject to the paramount right of the public. This principle is fully recognized and applied in the two following cases, closely analogous in their facts to this case: Town of Derby v. Alling, 40 Conn. 410; Henshaw v. Hunting, 1 Gray, 210. If this principle is a sound one in relation to the plats of cities and villages in the old states of Connecticut and Massachusetts, it is especially well grounded in reason in its application to the plats of western cities and villages which must have a chance of growth commensurate with the public necessity, which will not be lost by mere lapse of time within the above rule.”
Reilly v. City of Racine, 51 Wis. 526; Meier v. Cable Rid. Co. (Ore.) 19 Pac. Rep. 610; Grogan v. Hayward, Sawy. 498, 4 Fed. Rep. 161; Shea v. Ottumwa, 67 Iowa, 39; Cheek v. Aurora, 92 Ind. 107; Kopf v. Utter, 101 Pa. St. 27.
The plaintiff below failed to show that he had such a possession of the streets and alleys in question as would bar the right of the public, acquired under dedication. The court below committed no error in refusing to grant the perpetual injunction prayed for, and we therefore recommend an affirmance of the judgment.
By the Court; It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
This is a criminal prosecution under ¶1662, General Statutes of 1889, charging the defendant with a willful violation of ¶ 1888, General Statutes of 1889. The case was begun by indictment containing three counts, and was tried by the court and a jury January 29,1890, resulting in a verdict of guilty on the first count, and not guilty on the second and third counts. On this verdict the court entered judgment against the defendant, assessing his punishment at $100 fine, and cost of prosecution. From this judgment the defendant appeals to this court, and alleges, among other things, “that the verdict of the jury is not sustained by the evidence.” The evidence in the case shows that on April 9,1888, Jacob B. Spidle was a member of the board of county commissioners of Ness county, Kansas; that on that day the board decided to build a bridge across the Pawnee river; that on the 8th day of June thereafter, said Spidle, together with the other members of the county board, let the contract for building said bridge to Ed. Grant and M. G. Cowles, agreeing to pay said Grant and Cowles therefor the sum of $1,850; that on July 2, 1888, Grant and Cowles presented their claim to the board of commissioners, the defendant being one of them, in session at Ness City, which claim was allowed in the*sum of $1,850; that on the 9th day of the same month a warrant was issued in payment of said claim in the sum of $2,035, signed H. R. Corning, chairman, and attested by G. D. Barber, clerk. This is all the evidence in the case relating to the first count in the indictment, the only one upon which the defendant was convicted. The criminating words of the first count in the indictment are—
“And afterward, to wit, on the 9th day of July, 1888, the said Jacob B. Spidle, in the said county of Ness, being then and there a member of said board of county commissioners, and then and there acting in the official capacity of a member of said board of county commissioners, did then and there, unlawfully, willfully and corruptly vote for and allow the payment to said Ed. Grant and M. G. Cowles for said bridge in the sum of $2,035, whereby the said Jacob B. Spidle did then and there willfully and corruptly violate and fail to perform his duty as county commissioner of said county of Ness; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.”
Under this indictment, and the evidence in the case, was the defendant properly convicted ? We think not. The indictment charges him with having voted for, and allowed Grant and Cowles on the contract for building the bridge, a sum of money larger than the contract-price, and therefore a larger sum than they were entitled to under the law. But the evidence to sustain this charge, and all the evidence there is in the record upon this question, shows that he voted to allow the claim of Grant and Cowles, and they were allowed on their contract $1,850, that being exactly the amount of their contract-price. It follows then that there is a total want of evidence to sustain the verdict upon the charge that the defendant voted for and allowed the claim of Grant and Cowles in too large a sum — a sum larger than the amount of their claim.' The evidence shows that a warrant was issued to Grant and Cowles in payment of their claim, in the sum of $2,035.
Was the defendant properly convicted on this evidence? We think not. The indictment does not charge him with the offense of issuing a warrant to Grant and Cowles in a sum larger than the amount allowed on their claim, dollar for dollar, which is, under ¶ 1888, General Statutes of 1889, a separate and distinct offense from that of voting for and allowing a claim in too large a sum. All the evidence of the issuance of a warrant to Grant and Cowles in payment of their claim, for a sum larger than the amount allowed them by the board when their claim was presented and allowed, was improperly received, and therefore error for which the case would have to be reversed.
But there is nothing in the record showing that Spidle, the defendant, had anything whatever to do with the issuing of the warrant, and the presumption is that he did not. The law, ¶1648, General Statutes of 1889, provides that county orders shall be signed by the chairman and attested by the clerk, the other commissioners not signing them. And the warrant, introduced in this case, was so signed. The warrant also shows by its date that it was issued seven days after the claim, for the payment of which it was issued, was allowed. There is nothing to show that the board was in session when the warrant was issued, and we would think from the time which had elapsed from the date of the allowance of the claim, July 2, to the date of warrant, July 9, seven days, that the meeting of the board had adjourned, and the chairman had remained and signed warrants after the adjournment, as is usually the case.
There being nothing in the record showing that defendant had anything to do with the issuing of the warrant to Grant and Cowles for $2,035, and presuming the state put in all the evidence it had upon the subject, the records being in court, it would follow that the defendant could not be convicted, if the indictment was so amended as to charge him with the offense of wrongfully issuing the warrant introduced in evidence.
It is therefore recommended that the judgment of the district court be reversed, and the defendant discharged.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivei’ed by
Johnston, J.:
M. D. Webb was prosecuted before the police court of Junction City, upon a charge of selling intoxicating liquors in violation of a city ordinance. The complaint was filed on September 3, 1889, and on October 5, 1889, he was convicted, and adjudged to pay a fine of $50, together with the costs of the prosecution; from which judgment he appealed to the district court. When the case reached the district court, Webb moved for a dismissal of the complaint, and that he be discharged from custody, for the reasons, first, that no offense was charged against him; second, that the transcript from the police court did not disclose the offense with which he had been charged and of which he had been convicted; and third, that the ordinance under which he had been prosecuted and convicted had been repealed and superseded by another, which took effect on October 5, 1889, which was long after the offense was committed and the prosecution instituted.
It appears that the ordinance under which the prosecution was begun was enacted May 20, 1887. Subsequently, and in 1889, the mayor and council authorized and instructed James ~V. Humphrey to revise and prepare for publication in book form the general ordinances of Junction City. In pursuance of this authority, a revision and compilation of the general ordinances was prepared and submitted to the mayor and council; and on October 5,1889, the revision and compilation was approved and adopted by the mayor and council, and in pursuance of the resolution was published in pamphlet form. The ordinance under which the prosecution was commenced was reenacted and included in the revision in substantially the same language and with the same title as the original ordinance, enacted in 1887. There was no repealing clause in the ordinance, nor any repealing ordinance, general or special, in the revision; neither was there any saving clause in the ordinance as published, nor any general saving ordinance which expressly saved or continued pending prosecutions. The district court sustained the motion; and the city appeals.
The principal question presented for decision is, whether the action of the city council in revising the ordinances of the city for publication in convenient form, and in reenacting the ordinance in question in the same language, operates as a repeal of the original ordinance, or is to be construed as a continuation of the same. The general rule is, that the repeal of an ordinance or statute pending a prosecution under it operates to release the defendant-, unless it is otherwise provided in the ordinance or statute, or unless there is some general ordinance or statute saving such prosecution. In the present case, however, there was no express repeal, and manifestly there was no intention on the part of the city council to repeal the ordinance. The purpose, as is evident from the resolution authorizing the revision, was to consolidate the general ordinances of the city, putting them in convenient form for publication and use. The ordinance in question introduced no new rule, nor did it in any way modify the offenses defined or the penalties imposed in the original ordinance. There was no language indicating a purpose to repeal the former ordinance, and it is obvious that the mayor and council intended that the new ordinance should stand as a continuation of the former one rather than a repeal of the same. It is a well-recognized principle, of frequent application, that the mere reenactment of an existing law in the same or substantially the same language, without a specific repeal, or any manifest intention to change such law, will not necessarily operate as a repeal of the law, but will be construed as a continuation of the same. This rule is alike applicable to statutes and ordinances. It has even been applied to criminal statutes, where a new law expressly repealed the one reenacted, the reenactment being construed to continue in force the uninterrupted operation of the old law. (The State v. Gumber, 37 Wis. 298; The State v. Wish, 15 Neb. 448. See also Kesler v. Smith, 66 N. C. 154; Fullerton v. Spring, 3 Wis. 667; Scheftels v. Tabert, 46 id. 439; Cheezen v. The State, 2 Ind. 149; Martindale v. Martindale, 10 id. 566; Cordell v. The State, 22 id. 1; The State, ex rel., v. Baldwin, 45 Conn. 134; Middleton v. Rld. Co., 26 N. J. Eq. 269; United Hebrew Ass’n v. Benshimol, 130 Mass. 325; Lisbon v. Clark, 18 N. H. 234; End. Interp. St., §490, and cases cited.)
It is true, as contended, that every enactment is by implication a repeal of all prior laws so far as it is contrary and repugnant thereto, although there may be no repealing clause. But there was no change in the law, as we have seen, nor any words of repeal, and the reenactment of the new was simultaneous with the repeal of the old; and under the authorities cited the ordinances continued uninterruptedly in force, although there was no saving clause; and hence the pending prosecutions under the ordinance were not affected by the revision.
It is next contended that the complaint is insufficient because it does not state the name of the person to whom the liquor was sold. We think the offense was sufficiently described in the complaint without designating the name of the person to whom the liquor was sold. This is the rule prescribed by the legislature in the prohibitory law, where the penalties imposed for like offenses are much more severe than those imposed by the ordinance in question.
The objection that the complaint is not properly a part of the record without being incorporated in the bill of exceptions, must be overruled. (The State v. Nickerson, 30 Kas. 545.) Neither the complaint nor the orders and judgments of the police judge could have been properly included in the bill of exceptions, and together they clearly show the offense with which the defendant was charged and of which he was convicted.
The judgment of the district court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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The opinion of the court was delivered by
Hojrton, C. J.:
The Topeka Land Company brought its action against E. O. and G. E. Miller to quiet its title to a strip or tract of land in the .northeast quarter of section 2, in township 12, range 15, in Shawnee county, described as follows :
“ Commencing 1,323.08 feet north of southeast corner of said quarter-section; thence running west 40 chains, or thereabouts, to the west line of said quarter-section, at a point 1,325.33 north of the southwest corner of said quarter-section; thence south 33 feet; thence east 40 chains, or thereabouts, to the east line of said quarter-section; thence north 33 feet, to place of beginning.”
Trial had by the court, Hon. Z. T. Hazen, acting as judge pro tem., at the April term, 1887. The court, after hearing the evidence and arguments of counsel, found the allegations in the plaintiff’s petition to be true, and made a general finding in favor of the plaintiff. The court subsequently, upon its general finding, rendered judgment in favor of the plaintiff and against the defendant, forever quieting the title in the plaintiff to the land in controversy as against the defendant, and all persons claiming under or through them, or either of them. The defendant brings the case here.
The principal complaint is that the judgment of the trial court is not sustained by sufficient evidence. The record does not show any exception to the evidence given, nor does it show that any evidence was excluded. The case-made does not state expressly, or by implication, that it contains all of the evidence introduced upon the trial. The certificate of the judge clearly implies that all of the evid ence is not embraced in the record.
As the judgment follows the petition, the only matter for our consideration is, whether the allegations of the petition are sufficient to entitle the land company to the judgment ren dered. The petition alleges, among other things, that on the 2d day of April, 1860, the United States conveyed by its patent to Lewis C. Wilmarth “the northeast quarter of the northeast quarter of section 2, in township 12, of range 15, in the district of lands subject to sale at Lecompton, Kansas, containing thirty-eight acres and twenty-seven hundredths of an acre, according to the official plat of the survey of said lands returned to the general land office by the surveyor general;” that on the 1st day of June, 1860, the United States also conveyed by its patent to Lewis C. Wilmarth “ the south half of the northeast quarter and the northwest quarter of the northeast quarter of section 2, in township 12, range 15, in the district of lands subject to sale at Lecompton, Kansas, containing one hundred and eighteen acres and fifty-two hundredths of an acre, according to the official plat of the survey of the said land returned to the general land office by the surveyor general;” which patent is duly recorded in the office of the register of deeds of Shawnee county, at page 289, vol. 13; that according to the official plat of the survey of said land returned to the general land office of the United States by the surveyor general, the width of the south half of said quarter-section was 20 chains on its east and west lines; that the east line of said northeast quarter of said quarter-section was 19.07 chains; that the length of the west line of the said northeast quarter of said quarter-section was 19.13 chains; that the length of the west line of the said northwest quarter of said quarter-section was 19.19 chains; that the real length of the entire east line of the said quarter-section is 39.20 chains, and not merely the total of the official measurements, which are 39.07 chains; that the actual and real length of the entire west line of the said quarter-section is 39.43 chains, and not merely the total of said official measurements, which are 39.19 chains, and that there are no monuments upon the land of the government survey of the line between the north half of said quarter-section and the south half thereof; that on the 24th of May, 1880, Lewis C. Wilwarth and wife executed and delivered to the Topeka Land Company a convey anee of a certain portion of said land, described as follows: “The south half of the northeast quarter of section 2, in township 12, range 15, in the district of lands subject to sale at Lecompton, Kansas, as described in government patents issued to the parties of the first part April 2 and June 1,1860, and duly recorded in vol. 13, pages 289, and 290, Shawnee county records;” that on the same day, the 24th of May, 1880, Lewis C. Wilmarth and wife executed and delivered to E. O. Miller a conveyance of a certain portion of said land, described as follows: “ The north half of the northeast quarter of section 2, in township 12, range 15, in the district of lands subject to sale at Lecompton, Kansas, as described in government patents issued to the parties of the first part April 2 and June 1, 1860, and duly recorded in vol. 13, pages 289, 290, in Shawnee county records;” that said defendants have not, nor has either of them, any right, title or interest in or to any of said lands hereinbefore described, save and except under and by virtue of said deed of said Lewis C. Wilmarth and wife; that the plaintiff is the owner and in the actual possession of the strip or tract of land heretofore described as 33 feet wide from north to south, and 40 chains long from east to west.
Upon the allegations in the petition, the judgment of the district court must be sustained. In the deeds of Wilmarth to the parties to this action, the reference to the government patents made the description and the United States survey a part of the deeds. (Tied. Real Prop., § 841, and cases cited ; Davidson v. Arledge, 88 N. C. 326; Powers v. Jackson, 50 Cal. 429; Tarpenning v. Cannon, 28 Kas. 665.) According to the government survey, the entire length of the east line of the whole quarter-section was 39.07 chains, of which the east line of the south half of the quarter-section as measured by the. government survey was 20 chains long, and the north half 19.07 chains. The length by accurate measurement of the entire east line of the quarter-section is 39.20 chains, being .13 chains more than the survey as made by the government sur veyors. The plaintiff below, under its petition, is entitled to its proportionate share of the .13 of a chain.
“Where, on a line of the same survey and between remote corners, the whole length of which is found to be variant from the length called for, we are not to presume that the variance arose from defective survey in any part, but we must conclude, in the absence of circumstances showing the contrary, that it arose from imperfect measurement of the whole line, and distribute such variance between the several subdivisions of such line in proportion to their respective length.” (McAlpine v. Reicheneker, 27 Kas. 257.)
See also, Newcomb v. Lewis, 31 Iowa, 488-490; Moreland v. Page, 2 id. 139; O’Brien v. McGrane, 27 Wis. 446; Jones v. Kimble, 19 id. 430-452.
Again, the petition alleges that the plaintiff is the owner of and in the actual possession of the strip or tract of land in dispute. In the absence of evidence, we must assume that the trial court had evidence before it to justify its finding, and therefore properly rendered judgment accordingly.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
Artie M. Callen commenced her action for divorce against Samuel H. Callen in the district court of Montgomery county on the 7th day of June, 1887, and in her petition alleged causes for divorce in these words :
“That during the time she lived with Callen as his wife he was guilty of gross neglect of duty, and was guilty of extreme cruelty toward the plaintiff without cause or provocation on the part of the plaintiff. And the plaintiff further alleges that on, to wit, the — day of May, 1886, the defendant, disregarding his marital obligations, willfully and without cause deserted and abandoned the plaintiff, and ever since has and still does continue to abandon the plaintiff and live separate and apart from her, without any just or sufficient cause therefor, and against her will and consent.”
The defendant filed a motion to require the plaintiff to make her petition more definite and certain in the following particulars : That she be required to allege the facts constituting the charge of gross neglect of duty; and the dates at which the acts were committed; also the same in respect to extreme cruelty. The court overruled this motion, stating that it had not been the practice in that j udicial district to require the petition charging extreme cruelty and gross neglect of duty to set out the acts complained of, but the bar must take notice that hereafter such petitions must set out the particular acts complained of. The defendant answered, and the cause came on regularly for trial at the March term, 1888, and the court ordered a jury' to be called, and submitted to them certain questions of fact. The jury answered these questions as follows:
“1. Was the plaintiff married to the defendant? If yea, when? _áms.: Yes, February 14, 1885.
“2. What has been the conduct of the plaintiff toward the defendant during the time she has lived with him ? A. Good.
“3. Has the defendant been guilty of gross neglect of duty toward the plaintiff? If yea, when ? A. Yes; for two years.
“4. If you answer the third question in the affirmative, state fully in what such gross neglect of duty consisted. A. Not providing for her maintenance.
“5. Has the defendant been guilty of extreme cruelty toward the plaintiff? If yea, when and under what circumstances? A. Yes; when he throwed the hatchet at her, and using unbecoming language at Pueblo.
“6. If you answer the fifth question in the affirmative, state fully in what such cruelty consisted ? A. Answered above.
“7. Has the defendant abandoned the plaintiff? If yea, when, where, and under what circumstances? Answer fully. A. Yes; when he forced her to sign that contract, and left for parts unknown to her.
“8. Did the defendant have any just cause or excuse therefor? A. No.
“9. Did the defendant leave the plaintiff against her will and consent? A. Yes.
“ 10. Did the plaintiff in any way contribute to the cause of the alleged wrongs of which she complains? If yea; how and in what manner? A. No.
“11. Is the plaintiff the owner of any real estate in her own name? If yea, where is it located?- Describe it. A. Yes; as set forth in the petition of plaintiff.
“12. Has the plaintiff condoned the acts of the defendant ? A. Yes.
“ 13. What was the maiden name of the plaintiff ? A. Artie M. Morgan.
“ 14. Where was the plaintiff living at the time she commenced this action ? A. Montgomery county, Kansas, with her mother.
“ 15. How long had the plaintiff lived in the state of Kansas just prior to the commencement of this action ? A. Over one year.”
The court called the attention of the jury to their answer to special question No. 12, and said:
“I suppose you will understand the force and effect of your answer to special question No. 12, that it does not give plaintiff a divorce.”
To this the jury gave no reply. In the instruction of the court to the jury with reference to special question No. 12, it was said:
“‘Condoned’ is defined by Bouvier as follows: ‘It is forgiveness by the husband of his wife, or by the wife of the husband, of acts committed, with the implied condition that the injury should not be repeated, and that the other party should be treated with conjugal kindness.’ ”
When the jury returned their answers, the plaintiff made a motion for judgment in her favor on the special findings? regardless of the answer to the twelfth special question. This motion was sustained by the court, and a decree for a divorce rendered in favor of the plaintiff below. This decree recites that the court finds all the allegations in the petition of the plaintiff to be true. A motion for a new trial was filed and overruled, and all necessary exceptions' saved. It should have been stated in regular order, that at the trial the defendant below objected to the evidence tending to show extreme cruelty, but all objections were overruled.
The first error assigned is the adverse ruling on the motion to make the petition more definite and certain as to the extreme cruelty and gross neglec.t of duty. The code requires that the petition must contain a statement of the facts constituting the cause of action. In the case of Prather v. Prather, 26 Kas. 275, this court says:
“An action for divorce is a civil proceeding, and the pleadings in it are to be construed by the ordinary laws governing a civil action. The facts should be fairly and reasonably stated, so that the defendant can be clearly and fully apprised of the claim.”
Separate and apart from these authorities and as a matter of elementary principle, it is a part of the alphabet of the law that the pleadings must state facts and not conclusions. It was material error in the trial court to overrule the motion to make the petition more definite and certain. This error was aggravated by the trial court permitting the plaintiff below to offer evidence tending to prove acts of extreme cruelty committed at various times by the defendant, of which he had no notice in time to make a defense.
For these errors we recommend that the judgment be reversed, and the cause remanded, with instructions to grant a new trial.
By the Court: It is so ordered. •
All the Justices concurring.
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The opinion of the court was delivered by
Valentine,. J.:
This case has once before been in this court. (Walker v. Braden, 34 Kas. 660.) It appears that the defendant in error, W. H. Braden, as sheriff of Crawford county, had three executions in his hands, issued from the district court of said county against the property of McFarland & Moore, under which executions he levied upon certain personal property known as the “Anchor Mill,” seizing the same as the property of McFarland & Moore. The executions, with interest and costs, amounted in the aggregate to $596.42. The property levied upon was worth $1,500. The plaintiff in error, A. B. Walker, had a valid chattel mortgage upon the property for the sum of $1,200, and interest. The sheriff, Braden, sold the property at public sale, and Walker bid upon it and purchased the same for $1,600. Afterward, Walker refused to pay the amount of his bid, and the sheriff, Braden, sued him therefor in said district court and obtained a judgment for the same, which judgment was afterward affirmed by the supreme court. But the supreme court, however, in affirming the judgment, used the following among other language :
“The debt for which the property was sold is only $535.42, and if the mortgage of the plaintiff in error is valid and subsisting, he may by appropriate action reach the surplus fund derived from the sale of the property and have it applied upon his debt, and thus be partially relieved, from the effect of his blunder and the hardship of which he complains.” (34 Kas. 669, 670.)
After such affirmauce, Walker paid and satisfied the aforesaid executions and the judgments upon which they were issued, which in the aggregate, with interest and costs, then amounted to the sum of $664.52, leaving a surplus of $935.48 on Walker’s bid, and he then instituted this proceeding in the said district court to obtain relief, making every person a party thereto who claimed to have any interest in the surplus fund, or in any of the matters in controversy. The various parties answered. The principal matters alleged in the answers were that McFarland & Moore owed several of such parties, and that they had received orders from McFarland & Moore on the sheriff, Braden, to pay over to them severally a sufficient amount of the surplus fund to satisfy their respective claims, which orders Braden had accepted; but it was not claimed that any one of the parties answering, except Braden, had any lien upon the property sold on the executions, or even that he had reduced his claim to a judgment. The case was tried on April 14 and 15, 1887, before the court and a jury, and judgment was rendered against the plaintiff in error, Walker, and he now brings the case to this court for review.
We think the court below erred. “When there are surplus moneys arising from the sale of lands on execution, those having liens upon the lands sold have the same liens upon the surplus moneys which they had upon the lands previous to such sale.” (Crocker, on Sheriffs, § 507. See also Mitchell v. Milhoan, 11 Kas. 617; Butler v. Craig, 29 id. 205, 206, 207, and cases there cited; Averill v. Loucks, 6 Barb. 470; Van Nest v. Yeomans, 1 Wend. 88.) This same rule applies, we think, to personal property.
Ordinarily when a sheriff sells property on execution, he should, after satisfying the execution, with interest and costs, pay any surplus of the proceeds of the sale remaining in his hands to the defendant in the execution, or to his legal representatives. Whether he might in any case, upon his own volition and choice, pay such surplus to some other person who might have the paramount right thereto, we need not now determine; but we do determine that where some other person than the defendant in the execution, or his legal representative, has the paramount right thereto, the court from which the execution was issued may, in any proper proceeding instituted before it for that purpose, with all the interested parties before it, make an order that the surplus moneys shall be paid to the party • or parties having the paramount right thereto. In other words, when the property sold is the mortgaged personal property of the defendant in the execution, and there are no other liens upon the property than the execution lien and the mortgage lien, the court may, and should, in any proper proceeding instituted for the purpose, order that the sheriff, after satisfying the execution, with interest and costs, should pay the surplus moneys to the mortgagee. In this present case we suppose that Walker’s mortgage lien was, in the first instance, prior and paramount to Braden’s execution lien, but Walker waived his priority of lien to the extent of the execution claims by bidding upon and purchasing the property. He however did not waive his priority of lien and rights to any greater extent, nor as to claims which were not liens in any sense upon the property. As to such claims, his rights were still prior and paramount. Walker is entitled to the surplus.
The judgment of the court below will be reversed.
All the Justices concurring.
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The opinion of the court- was delivered by
Valentine, J.:
This was an action brought before a justice of the peace of Pratt county, by J. H. V. Brown, against the Chicago, Kansas & Nebraska Railway Company, for injuries alleged to have been received by the plaintiff through the negligence of one of the employés of the railway company. At the time when the alleged injuries occurred the plaintiff was employed as a section-man under Daniel Shanahan, the section foreman, and the duties of both were upon what was known as the Chicago, Kansas & Nebraska Railway; but who their employer was, whether the Chicago, Kansas & Nebraska Railway Company, or the St. Joseph & Iowa Railroad Company, was and is a disputed question. The principal allegations of the plaintiff’s bill of particulars were and are as follows:
“That on or about the 13th day of December, 1887, while plaintiff and the said Daniel Shanahan were engaged in operating and propelling a hand-car of defendant upon the railroad of defendant in said Pratt county, Kansas, the said Daniel Shanahan carelessly and negligently, and without the fault or negligence of the plaintiff, pushed and displaced a certain water cask, keg, or small barrel, standing upon said handcar, so as to cause the said cask, keg, or small barrel to take a position immediately under the handle of said hand-car which plaintiff was holding and operating, so that two of the fingers of plaintiff’s right hand were caught on the downward stroke of said handle, between said handle of said hand-car and the top of said cask, keg, or small barrel, and the said fingers of said plaintiff were thereby crushed, cut and lacerated, and the bone of one of said fingers fractured.”
The case was taken to the district court of Pratt county, where it was tried before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendant for $109.41; and the defendant, as plaintiff in error, brings the case to this court for review.
It is certainly doubtful whether any culpable negligence was shown as against Shanahan, or as against any railroad company. If any such negligence was shown, it was shown wholly and entirely by the testimony of the plaintiff below, Brown, and wholly and entirely as against Shanahan. It appears that on the evening of December 13, 1887, at about 6 o’clock, Shanahan and Brown were returning from their work by means of a hand-car, which they themselves operated and propelled. They were moving eastwardly — Shanahan in front, and Brown in the rear. An empty water keg was standing on the car, about the middle of the car east and west, and on the south side of the car. Brown was well acquainted with the work. He had already worked upon the railway, performing precisely the same kind of duties forty-three days, and it was always their custom to go to and from their work by means of a hand-car, and they always carried a water keg with them in the manner aforesaid, full of water in the morning and empty in the evening. As to how the accident occurred, with the incidents connected therewith, Brown testified as follows:
“I, being behind, had one hand in the center; there were three places, one in the center and one at each end, and I sometimes, in order to ease my hand, sometimes took the center bearing. I had to get on at the right-hand side, and I got on at the center place, and had my left hand in the center hole. The keg was between me and Shanahan. My right hand was directly behind the keg, and the keg was directly behind Shanahan. That was how we propelled the hand-car. After I had got on, and the linch-pin was found, they did not wait for us, and the others had worked their hand-car so fast we were losing ground, and Shanahan made an effort to propel the hand-car more rapidly, and in order to do so gave himself a wide swing, and placed his foot on the keg. He was very thickly dressed — had on an overcoat; I don’t know how many shirts and pants, and thick pants over them. In making the effort to propel the hand-car he threw the keg, throwing it under my handle.
“ Ques.: "Where was Mr. Shanahan with reference to the keg ? Ans.: East of the keg. Shanahan struck against it and threw it back.
“Q. With what? A. I think his feet, or it may be with his leg. He made this big swing to work faster, and pushed against the keg both.
“Q. You think it was his feet, then? A. His feet and body.
“Q. Were you looking at the keg? A. I was, sir; I saw the keg and Shanahan too.
“Q,. And Shanahan too? A. Yes, sir; I saw Shanahan’s feet and body push the keg.
“Q,. You saw it before it came under the handle? A. Yes. sir: I did. sir.
“Q,. You saw it wheu it started ? A. I did, sir; it did not take much time.”
Brown also testified that during all the time he worked on the railway he noticed the keg; that “it was one of the things to look after; it was every man’s duty to look about to watch the things on the car.” He also testified as follows: “I could swear I noticed it ninety-nine hundredths of the time.” Shanahan testified that he did not move the keg, nor even touch it. He did not know what moved it. Shanahan also testified that he told Brown to keep a sharp lookout for the keg, and to go from the end where he was and to the north side, and he would be all right. Brown, however, in his testimony denied all this.
Under the evidence in this case we can almost say as a matter of law, that no culpable negligence was shown as against any railroad company or railway company; but as the judgment of the court below rnUst be reversed for other reasons, it is unnecessary to so decide, and we shall not do so.
It is further claimed that the court below erred in permitting Brown, over the objections and exceptions of the defendant, to testify with regard .to certain “ time-checks.” Brown was not only a section-man, but he also acted as the clerk for the section foreman, Shanahan, keeping his books, making out time-checks, etc. One of the questions presented and litigated in the court below in this case, was whether the plaintiff was at the time of the accident working for the Chicago, Kansas & Nebraska Railway Company, or for the St. Joseph & Iowa Railroad Company; and to prove that he and all the other section-men on that railroad were working for the Chicago, Kansas & Nebraska Railway Company, he testified, over the objections and exceptions of the defendant, that all the time-checks were made out in the name of the Chicago, Kansas & Nebraska Railway Company, and this he testified to without any further foundation for the introduction of such testimony than that he did not have such time-checks in his possession or under his control. No evidence was intro duced that they were lost or destroyed, or that any search had ever been made for them, or that any BOtice had been given to either of the foregoing railroad companies, or to anyone else, to produce them. We think this was error. (Brock v. Cottingham, 23 Kas. 383, 388, 389, and cases there cited.)
During the time while Brown worked upon the railroad, Shanahan, the section foreman, kept a book entitled “ Chicago, Kansas & Nebraska Eailway Company, St. Joseph & Iowa Bail-road Company, lessee, time-roll,” etc., in which book Brown, as Shanahan’s clerk, kept the time of service of the different section-men, Brown himself making the entries therein. In all probability the time-checks were made out in the name of the same railroad company.
It is further claimed that the court below erred in permitting the deposition of John Whaley to be introduced in evidence. The objections urged against this testimony were that Whaley was in the county, and that he would have been present at the trial if he had been subpenaed, and that the deposi^on was a^so inc0II1Petenb irrelevant, and immaterial. The deposition itself showed that the witness was a resident of the county. We think the court below erred, but it is doubtful whether the exception to its introduction was sufficient.
It is also claimed that the court below erred in giving the following, among other instructions, to the jury:
“Our statute provides that every railroad company organized or doing business in this state shall be liable for all damages done to any employé of such company, in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employés, to any person sustaining such damage; and if you believe, from the evidence in this case, that the injury complained of by plaintiff occurred in consequence of any negligence or mismanagement of any agent or employé of defendant, and without any greater want of carefulness on the part of plaintiff than was reasonably to be expected from a person of ordinary caution in the situation in which the plaintiff was at the time of said injury, then your verdict should be for the plaintiff; but if you believe from the evidence that the plaintiff was, at the time of the injury, guilty of contributory negligence — in other words, that his own negligence contributed to said injury — then the plaintiff cannot recover in this action; the law, however, does not require the greatest care and caution, but only such reasonable care, such as a man of ordinary prudence would exercise under similar circumstances; and, although you may find that the plaintiff was guilty of slight negligence, yet if you believe from the evidence that there was great negligence on the part of the defendant, causing said injuries complained of, then such slight negligence on the part of the plaintiff would not defeat his right of recovery in this action.”
This instruction, it will be seen, makes the railway company responsible for “any negligence or mismanagement of any agent or employé”; while it permits the plaintiff to recover although he may have been guilty of “.slight negligence.” It does not treat the parties alike. This is error. Each party in such cases is required to exercise ordinary care and diligence, and neither is required to exercise any greater degree of care or diligence; Shanahan was not required to exercise any greater degree of care or diligence than was Brown. If the railway company was liable because of “any negligence” on the part of Shanahan, then the plaintiff should not be allowed to recover if he himself was guilty of “any negligence,” whether “slight” or otherwise; and if the plaintiff may recover and still be guilty of “slight negligence,” then the defendant should not be held liable because of “slight negligence” on the part of Shanahan, which would certainly be included in “any negligence.” Neither party, however, is responsible for merely “slight negligence,” which means simply a want of great or extraordinary care; while both parties are responsible for ordinary negligence, which means a want of ordinary care. The word “negligence” is used in various ways. It sometimes means a failure to exercise the greatest or most extraordinary care, although the party has in fact exercised great care, and all the care required of him in the particular instance. This is usually termed “slight negligence.” It may sometimes mean the failure to exercise ordinary care, or in other words, that degree of care which an ordinarily prudent person would exercise under like circumstances, although the party has exercised some care, and it may be only slightly less than ordinary care. This is usually termed “ordinary negligence.” And it may sometimes mean a failure to exercise that degree of care, whether slight, ordinary or great, which is required in the particular instance, although the party may have exercised some care, and it may be only slightly less than the degree of care required. This is termed “culpable negligence.” In the present ease both Brown and Shanahan were required to exercise ordinary care, and not to be guilty of ordinary negligence, and neither was bound to exercise any greater degree of care or diligence, nor responsible for any less degree of negligence. The statute relied on by the plaintiff (Gen. Stat. of 1889, ¶1251) uses the words “any negligence”; and in so using the same it undoubtedly intends any culpable negligence, or any negligence above what is permissible. Or, in other words, it means a want of that degree of care required in the particular instance. The statute is evidently based upon the theory that when a party has exercised that degree of care required in the particular instance, he is not guilty of any negligence, although it would be possible for him to have exercised a much greater degree of care. The statute certainly does not mean that the highest possible degree of care shall be exercised, and that the party shall be liable for the slightest possible degree of negligence, thereby treating any possible want of care, however slight, as culpable negligence. If the court below meant what we think the statute means, then we think the court below to that extent was right; but from the whole of the instruction it cannot be said that the language thereof means this, for while it is said in substance that “any negligence” will defeat the defendant, it is also said that “slight negligence” will not defeat the plaintiff, and “slight negligence” is certainly included within “any negligence.” The court probably meant by the use of the words “slight negligence,” only a failure to exercise great or extraordinary care, but it was unfortunate that it used these words with reference to the plaintiff Brown, after using the words “any negligence” with reference to the defendant and to Shanahan, for the court should have applied precisely the same degree of negligence to all. If the court by the use of the words “any negligence,” meant a degree of negligence greater than ordinary negligence, (and any other meaning than ordinary negligence would make the instruction erroneous,) then when it used the words “slight negligence,” it would seem unquestionably to have meant a degree of negligence greater, though perhaps only slightly greater than ordinary negligence, which would be gross negligence, and which would make the instruction equally erroneous. But if the court by the use of the words “slight negligence” meant merely a failure to exercise great or extraordinary care, then it would seem that by the use of the words “any negligence,” the court would mean a much less failure, a failure to exercise only the greatest or most extraordinary degree of care, and in that way the court would make the defendant railway company liable for the slightest and most trivial negligence, which would also make the instruction erroneous. The defendant railway company is responsible for any culpable negligence, but not necessarily so for “any negligence;” and the plaintiff would be responsible for any slight culpable negligence, but not necessarily so for any “slight negligence.” But to use the words “slight negligence” and “any negligence” in the same instruction in different senses and without any explanation, would be misleading and erroneous. With these words “any negligence” and “slight negligence” as used in the same instruction, in this case, without any explanation as to what was meant by the words “any negligence,” the instruction is certainly erroneous. As above stated, both Brown and Shanahan were required to exercise ordinary care, or that degree of care which an ordinarily prudent person would exercise under like circumstances, and neither was required to exercise any greater degree of care. This instruction would probably, however, lead the jury to think that the railroad company through its agents and employés was bound to exercise the greatest possible degree of care, and was liable for the slightest possible degree of negligence, which is not a correct rule.
On the side of the plaintiff, however, it is said that this instruction was not properly excepted to. After a copy of all the instructions is given in the record numbered from 1 to 6, then the following language is used: “And the said instructions from 1 to 6 inclusive, are all the instructions given by the court to the jury in this case; . . . to the giving of which instructions numbered 1, 2, 3, 4, 5, and 6, and to each of them severally, the defendant then and there excepted.” The first instruction includes what is above quoted, and the figure “I,” representing its number, is placed nearly in the middle of the instruction, and not at the beginning where it should be placed, and what we have quoted comes before the figure, and for this reason it is claimed that the instruction was not properly excepted to. It is clear, however, that the whole of this instruction was intended to be numbered “I,” and the whole of it was intended to be excepted to, and we think the court and the parties so understood it.
Other questions are presented in this case, but we do not think that it is necessary to discuss them.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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Opinion by
Simpson, C.:
The plaintiff in error, I. J. Brook, presented to the probate court of Anderson county for allowance, a promissory note against the estate of Jessie E. Latimer, (who was his daughter, intermarried with Walter Latimer,) that reads as follows:
“ $10,000. On demand, I promise to pay to I. J. Brook ten thousand dollars; value received this 12th day of June, A.D. 1882. — Jessie E. Brook.”
Upon hearing, the probate court disallowed the claim, and an appeal was taken to the district court, where the case was tried by the court and a jury on the same pleadings upon which it was heard in the probate court. These consisted of the verified claim of the plaintiff in error for $10,000, and the answer of the administrator of the estate of Jessie E. Latimer. This answer denied the execution of the note, denied any indebtedness by Jessie at the time of her death to her father; and further alleged that at the marriage of Jessie, her father, the plaintiff in error, made an advancement of property and money to her; that she received an advancement out of her father’s estate, and that the instrument presented for allowance against her estate was intended only to show the amount of money and property advanced to her whenever it became necessary to make a final settlement and a fair distribution of the estate of her father. The trial in the district court of Anderson county resulted in a verdict and judgment for the defendant in error. A motion for a new trial was overruled, and the cause brought here for review.
The various rulings of the trial court upon the admission of evidence, and the exceptions to the instructions given to the jury, now urged here as erroneous, are all dependent upon the one controlling question as to whether or not an absolute promise in writing to pay a certain amount of money given by a child to a parent, may be shown to be intended between the parties to it as a mere receipt or memorandum to show that the parent had made an advancement of that amount of property and money to his child, and that it was the intention of the parent that it should never be collected. If in an action such as this, to enforce the payment of the demand note, such a showing is permitted, then this judgment must be affirmed; but if such evidence of intention to make an advancement is not admissible, the judgment must be reversed.
I. An advancement is an irrevocable gift by a parent to a child in anticipation of such child’s future share of the parent’s estate. In many of the states their statutes prescribe what evidence is necessary to establish the fact of advancement, as in Maine, Massachusetts, and Vermont, where there shall be a declaration to that effect in the grant or gift of the parent, or a charge by the intestate, or an acknowledgment in writing by the child. In some of the states where there are no statutory provisions like those cited from Maine, Massachusetts, and Vermont, it has been held that the declarations of the parent before, after, and at the time of the transaction, are admissible in evidence to show the intention to make an advancement.
(Mitchell v. Mitchell, 8 Ala. 414; Autrey v. Autrey, 1 id. Select Cases, 542; Butler v. Ins. Co., 14 id. 777; Merrill v. Rhodes, 37 id. 449; Smith v. Smith, 21 id. 761; Fennell v. Henry, 70 id. 484; Phillips v. Chappell, 16 Ga. 16; Dillman v. Cox, 23 Ind. 440; Woolery v. Woolery, 29 id. 249; Middleton v. Middleton, 31 Iowa, 151; Cecil v. Cecil, 20 Md. 153; Graves v. Spedden, 46 id. 527; Kingsbury’s Appeal, 44 Pa. St. 460; Morris v. Morris, 9 Tenn. 814; Watkins v. Young, 31 Gratt., Va., 84.)
Our statute provides—
“That property given by an intestate, by way of advancement to an heir, shall be considered part of the estate, so far as regards the division and distribution thereof, and shall be taken by such heir toward his part of the estate, at what it would now be worth if in the condition in which it was so given him. But if such advancement exceeds the amount to which he would be entitled, he cannot be required to refund any portion thereof.” (Gen. Stat. of 1889, ¶¶2617, 2618.)
These statutory provisions render us no aid in the solution of the question we are considering, as they establish no rule of evidence by which the fact of advancement can be shown. While there are numerous decisions of this court contained in almost every volume of our reports upon questions affecting the admission of parol testimony, to vary or contradict the express terms of a written contract, the exact question here presented has not been discussed or decided. The various, cases in this state alluded to in the briefs of counsel do not in our judgment in any way indicate or control the decision of the case at bar.
The question of advancement in all cases is entirely dependent on the intention of the donor. That intention can be best ascertained by the declarations of the parent at the time of the transaction, and by his acts done and performed in pursuance of his declarations. In many cases his declárations made prior to the advancement, or his statements made thereafter, are admissible to establish the fact. It may be established by the adoption of a particular rule or system in the treatment of his children, with respect to gifts, or loans of money, or by a general policy adopted with reference to his donations to the members of his family. The doctrine of advancement is in aid of that equal and impartial distribution of the estate of an intestate, that has become the fixed policy of this state by long-continued statutory enactment, so that equality between the heirs is equity as well as statutory command. We do not deem the admission of evidence tending to show that a promissory note absolute by its express terms, is a mere evidence of an advancement by a parent to a child, to be a violation of that rule of evidence that forbids a written instrument to be varied or contradicted by parol. The numerous reported cases, including deeds that recite a moneyed consideration, bonds under seal, and promissory notes, in absolute terms justify the admission of such evidence, on the principle that the consideration recited in the instrument is always subject to judicial inquiry. This court is unusually liberal in the application of the rule that permits such inquiry. In almost every reported case in which the controlling question was whether or not such parol evidence was admissible to show that some written instrument of indebtedness taken by a parent from a child was in fact a mere receipt or memorandum of an advancement, it is held that such evidence should be received. This case, however, differs from all the reported cases that have been cited, or that we have' examined, in this respect: The parent that made the advancement is still alive, and is now insisting that the memorandum or receipt showing the amount of the advancement at the time it was made, is both prima fade and conclusive evidence of a debt. We have already stated that an advancement is an irrevocable gift, and it has been repeatedly held that a donor cannot change an advancement into a debt or trust. (Haverstock v. Sarbach, 1 Watts & S. 390; Miller’s Appeal, 31 Pa. St. 337; Sherwood v. Smith, 23 Conn. 516; Arnold v. Barrow, 2 Pat. & H. 1; Dudley v. Bosworth, 10 Humph., Tenn., 9; Thompson’s Appeal, 42 Pa. St. 345; Cleaver v. Kirk, 3 Ky. 270.)
Applying the principle that parol evidence is admissible to prove the intent of the parent to the facts developed on the trial, we have an abiding faith that there is not only some evidence to support the verdict of the jury, but that it was rendered in accordance with the preponderance of the evidence, and it therefore becomes our duty to recommend an affirmance of the judgment of the district court.
By the Court: It is so ordered.
All the Justices concurring..
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The opinion of the court was delivered by
Valentine, J.:
All the proceedings now presented for review have grown out of an action commenced in the district court of Chase county on June 4,1884, by E. A. Hildebrand, George O. Hildebrand and S. F. Jones, partners as Hildebrand Bros. & Jones, against L. W. Clay and his wife Polly Clay, Adam M. Clay, John Walruff, John Quinn, I. G. Thomas and his wife, Pauline Thomas, George Newman, Henry Harris and his wife, Tabitha Harris, and Theodore Zoellner. In the original action the plaintiffs sought to foreclose three separate mortgages; the defendant, Walruff, sought to have a certain deed reformed and declared to be a mortgage and then foreclosed; and the defendant Quinn sought to have a certain mortgage foreclosed. All the other defendants failed to make any appearance in the action, and were in default. A trial was had as between the plaintiffs and Walruff and Quinn, and their rights and priorities as between themselves were determined, and an affirmative judgment was rendered in favor of each. The case was then brought to the supreme court by L. W. Clay and wife, and the judgment of the court below as to all the parties was affirmed. (Clay v. Hildebrand, 34 Kas. 694.) Afterward an order of sale was issued from the district court, and a portion of the mortgaged property was sold and the sale confirmed and sheriff’s deeds to the purchasers were executed. Afterward the defendant, Adam M. Clay, moved the court to set aside “the judgment heretofore rendered herein so far as the same affects the rights and interests of this defendant,” for the reasons that no service of summons had ever been made upon him, and that the plaintiffs’ petition did not state any cause of action as against him. It does not appear that any party or person except the plaintiffs and Adam M. Clay ever had any notice of this motion prior to its submission to the court and the action of the court thereon. The court sustained the motion, but over the objections and exceptions of Adam M. Clay permitted the plaintiffs to amend their petition; and then required the defendant, Adam M. Clay, to answer thereto, which he afterward did, and the plaintiffs replied. A trial was then had upon the said petition, answer and reply, and the court denied nearly all the relief asked for in the defendant’s answer; and the defendant, as plaintiff in error, brings the case to this court for review.
The most of the facts of this case will be found stated in the case of Clay v. Hildebrand, 34 Kas. 696, et seq., and they will not be repeated in this case except in very general terms. This case involves interests in the following town lots, to wit: Lots numbers 11, 13, 15, 17, 18, 19, 20, 22, 24, and 26, in block number 2, in Strong City; but the plaintiff in error, Adam M. Clay, claims an interest only in lots numbers 11,13, and 15; and his interests and equities as compared with the interests and equities of the other parties and other persons, stated very briefly, are substantially as follows:
1. The plaintiffs’ first mortgage, which was from Harris and wife, the original owners, to George Collett, dated April 1, 1879, and assigned to the plaintiffs, includes all the above-mentioned lots.
2. The plaintiffs’ second mortgage, which was from L. W. Clay and wife, purchasers, to Harris, dated July 6, 1880, and assigned to the plaintiffs, includes all the above-mentioned lots.
3. Deed from L. W. Clay and wife to Adam M. Clay, dated November 16,1881, for lots numbers 11 and 13.
4. Deed from L. W. Clay and wife to John Walruff, dated March 21, 1882, for lot number 13; but in equity it was a mortgage from L. W. Clay and wife to John Walruff, dated March 21, 1882, for lot number 15.
5. Mortgage, L. W. Clay and wife to Adam M. Clay, dated April 26, 1882, for lot number 15.
6. Deed from L. W. Clay and wife to John Quinn, dated December 6, 1882, for the west half of lots numbers 18, 20, 22, 24 and 26, and a mortgage from L. W. Clay and wife to Quinn of same date for all the property mentioned in all the deeds and mortgages except that portion deeded to Quinn.
7. The plaintiffs’ third mortgage, from Thomas and wife, purchasers of lots numbers 17 and 19, to L. W. Clay, dated March 27,1883, for saidlots numbers 17 and 19, and assigned to the plaintiffs.
8. June 4,1884, this action was commenced as aforesaid.
9. July 23, 1884, judgment was rendered in favor of the plaintiffs and Walruff and Quinn, on the foregoing mortgages belonging to each respectively; and their priorities were determined as aforesaid.
10. August 2, 1884, Quinn assigned his judgment to the plaintiffs, and they released in the office of the register of deeds, but not in the office of the clerk of the district court, their first two mortgages with regard to the west half of lots numbers 18, 20,22, 24, and 26.
11. August 7, 1884, an order of sale was issued on all the foregoing judgments, and for all the aforesaid property.
12. September 23,1884, the sheriff after advertisement sold the following property on the aforesaid order of sale: Lot number H to Dennis Rettiger, for $300; lot number 13 to E. A. Hildebrand, for $250; lot number 15 to E. A. Hildebrand for $1,200; and lots numbers 17 and 19 to B. Lantry for $1,100. None of the other property was sold.
13. About April 23, 1885, or afterward, the aforesaid sale was confirmed, and sheriff’s deeds to the purchasers were ordered and executed.
14. December 8, 1885, Adam M. Clay, as above stated, moved the court to set aside the plaintiffs’ judgment, possibly all the judgments so far as it or they affected any of his rights or interests.
15. December 19, 1885, Adam M. Clay’s motion was sustained, but at the same time the plaintiffs were permitted to amend their petition, and Clay was required to answer to the plaintiffs’ amended petition within thirty days, to which rulings as against him he duly excepted.
16. January 16, 1886, Adam M. Clay filed his answer to the aforesaid amended petition.
17. January 25,1886, the plaintiffs replied.
18. July, 1886, the case was tried upon the aforesaid pleadings as between the plaintiffs and Adam M. Clay, and between them alone, and taken under advisement by the court.
19. July 8, 1887, the court rendered its decision, making special findings and conclusions, and rendering judgment in favor of Adam M. Clay and against L. W. Clay and wife for $964 and .costs, and finding that Adam M. Clay owned lots numbers 11 and 13, and that he held a mortgage on lot number 15, but all subject to other mortgage liens; and denied any other or further relief to Adam M. Clay; and further adjudged that such judgment should not bar Adam M. Clay in any other action from asserting any rights or interests which he might have. In effect it was a dismissal of Adam M. Clay’s proceeding against the plaintiffs for affirmative relief without prejudice; and this is the judgment which Adam M. Clay now seeks to have reversed.
We cannot say that the court below erred. For the pur poses of this case we shall assume, as the defendant, Adam M‘ Clay, olaims, that he was not a party to this action prior to his filing his motion on December 8, 1885, and therefore that none of his rights or interests were adjudicated, or affected by the judgments rendered in the case on June 23, 1884, or by any of the other proceedings had in the case _prior to the time of his filing his motion, and therefore that his motion, appearance and answer in the case virtually instituted new proceedings. On January 16,1886, he filed a full answer in the case in the nature of a cross-petition, setting up new matter and asking for affirmative relief, which relief if granted would affect the rights and interests of nearly all the other parties to the action; and there were a great many parties to the action, as we have already seen, and he asked for this affirmative relief although he never gave to any one of these parties, except to the plaintiffs, any notice of his proposed action, proceedings, or claims. Nor did any one of these parties, except the plaintiffs, ever have any such notice, or ever make any appearance in the case after Adam M. Clay made his said appearance. Upon this proceeding of Adam M. Clay against the plaintiffs, without any notice to any of the other parties Adam M. Clay obtained a supposed judgment against L. W. Clay and wife for $964 and costs, and that they had conveyed two lots and mortgaged one lot to him. Is this judgment of any value ? They had no opportunity to set up any defense against Adam M. Clay’s supposed claims. John Walruff also had interests in lot number 15, apparently paramount to the supposed mortgage interests of Adam M. Clay in the same property. Are not Walruff’s rights and interests entitled to some respect ? May not he be permitted to show, if he can, that the supposed deed and mortgage from L. W. Clay and wife to Adam M. Clay are mere shams and pretenses? And may not Dennis Rettiger, the purchaser of lot number 15, be permitted to protect his interests in such lot ? And may not he be permitted to show that Adam M. Clay has no honest or legal claim to any of such property ? Is it possible that the proceedings in an action involving the rights and interests of various parties and persons had before Adam M. Clay became a party to the action, may be overturned, demolished and destroyed, simply for the reason that Adam M. Clay was not given any opportunity to defend and protect his rights and interests in the action; and then may all the rights and interests of these various interested parties and persons be settled, adjudicated and determined and held for naught in their absence and without giving them any opportunity to appear, or any opportunity to defend and protect their rights and interests in the courts? Adam M. Clay might have had the other interested parties and persons brought into court by notice or summons, but it does not seem that he chose to do so. Also, the court might upon its own motion have ordered them to be brought in, but it was not bound to do so. The plaintiffs also might have asked to have them brought in, but as the plaintiffs were not then asking for any affirmative relief, they were not bound to do so. And as no party is now complaining of the action of the court below except Adam M. Clay, he must show that he did all that he could to have all necessary parties brought in before he can claim that the court below committed any material error as to him in refusing to finally determine the case without the presence of such other parties. We think that as some of the necessary parties were not in court, and had no opportunity to answer the new claims made by Adam M. Clay, the court below did not commit any error by virtually dismissing his proceedings without prejudice. If he has any rights with regard to said lots numbers 11, 13 and 15 which need any further protection, he can commence a new action, and make all the interested parties defendants.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
On the 10th day of April, 1886, Howell Brothers commenced this action' in the district court of Eepublic county against W. C. Sehull, and School District No. 3 of said county. In their petition they asked for a personal judgment against Sehull for $570.47, and a foreclosure of a material lien on the school-house situate in District No. 3. It was alleged that the school district had made a contract with Schull to erect a school-house, agreeing to pay him the sum of $3,000 therefor. Plowell Bros, sold and delivered to Schull, to be used in the construction of the school-house, a quantity of lumber and other building material, amounting to $2,119.35, the sum sued for, remaining unpaid. The schoolhouse and buildings were fully completed on the first day of January, 1886. On the 18th day of January, 1886, they filed their statement for a material lien. The answer of the school district admitted its ownership of the land and building described in the statement of lien, admitted its contract with Schull as stated in the petition, admitted that the plaintiffs furnished lumber and material to Schull to the amount of $1,420, but denied that the plaintiffs furnished Schull any other lumber or material that was used in the construction of the schoolhouse, and denied that plaintiffs have filed such a statement of lien as is required by law. The plaintiffs filed a reply containing a general denial to such allegations as are not admitted by the answer.
It will be seen that two issues are made, one of law, as to whether the statement of lien is sufficient, and the other of fact, as to whether the plaintiffs below furnished lumber and other material to Schull to be used in the construction of the school-house in excess of $1,420. These issues were sent to a referee for trial, who reported as follows:
“1. The defendant School District No. 3, in the county of Republic and state of Kansas, is, and was during the year 1885, a corporation, created, organized and doing business under the laws of the state of Kansas; and on the 4th day of September, 1885, it was the owner of the following described real estate situated in the town of Wayne, in said county of Republic and state of Kansas, to wit: Commencing at the point of intersection of the north line of Randolph street, in the town of Wayne, with the west line of Third street of said town, thence north in a continuation of the west line of Third street aforesaid, three hundred feet; thence west parallel with the north line of Randolph street, three hundred feet; thence south in a continuation of the east line of Second street, in said town, three hundred feet, to intersect the north line of Eandolph street; thence west on said north line to the place of beginning, containing two and six-hundredths acres, more or less, and being a part of the northwest quarter of the southwest quarter of section 9, in township 4 south, of range 4 west of the sixth principal meridian; same land being described in the petition of the above-named plaintiffs, and ownership admitted in the answer of said School District No. 3, defendant above named.
“2. On the 29th day of August, 1885, defendant School District No. 3, above named, and defendant W. O. Schull, above named, entered into a written agreement and contract with each other, whereby W. C. Schull agreed that for and in consideration of $2,950, he, W. C. Schull, would furnish the material and erect according to certain plans and specifications, a school-house on the land heretofore mentioned and described, for which School District No. 3 agreed to pay said W. C. Schull the sum of $2,950. As a matter of fact there was an oral or verbal contract by and between said School District No. 3 and W. C. Schull, the aforesaid defendant, made and entered into on or about the 1st day of December, 1885, whereby said W. C. Schull agreed to furnish the material and erect certain outhouses, platform to school building and extra cornice, and other extra fixtures thereon, to the amount of $319.35, for said School District No. 3, above mentioned, and on the land heretofore described as owned by said school district in the town of Wayne and county aforesaid.
“3. In pursuance of said contract by and between said School District No- 3 and W. C. Schull, the defendant in this action, W. C. Schull, defendant and contractor, did agree to purchase and did purchase of the above-named plaintiffs, Howell Bros., lumber and other material for the erection of said school building, out-buildings and platform, and other extras, to the amount of $2,119.35; and the above-named plaintiffs, Howell Bros., did, in pursuance of said contract made by and between said School District No. 3 and W. C. Schull, contractor, contract to furnish and did furnish in pursuance thereof to said W. C. Schull, contractor, lumber and other material for the erection of said school building, outbuildings, platforms, and other extras, all to be used on the land heretofore mentioned and described, and under the contract heretofore mentioned and described, to the amount and of the value of $2,119.35, of which lumber and material there was used by said contractor, W. C. Schull, in the erection of said school building, out-houses and improvements, placed on the land above described, to the amount and of the value of $1,182.37. The plaintiff has received pay on said bill as follows:
By return of lumber and material.............. §128 88
By cash...................................... 1,420 00
Total..................................§1,548 88
“There was $108.10 worth of the material received from this plaintiff by defendant W. C. Schull, to be placed in said school building and other improvements heretofore mentioned, that was not used by said W. C. Shull, nor was the same returned to the plaintiffs nor to any other person for them.
“4. It was agreed by and between C. A. Campbell, Thomas Lupert and George A. Hovey, the three constituting the members of the school board, that they would look after the building and see that the material was used for the building, and it was agreed that George A. Hovey was to oversee the building of the school-house, he having a business within about three hundred feet of where the school building was then being erected, and time sufficient to look after the school building. Certain members of the school board above mentioned, took and used a part of the $108.10 worth of material just above referred to, and the same was so done without the knowledge or consent of the plaintiffs.
“ 5. All said material and lumber was furnished by the above-named plaintiffs to be used in school building and other improvements heretofore mentioned on the land heretofore described, and not otherwise; and was so furnished between the 9th day of September, 1885, the last item being furnished on the 7th day of December, 1885, and said building and improvements were all completed on the 1st day of January, 1886, and accepted by the School District No. 3, one of the above-named defendants.
“6. On the 1st day of January, 1886, there was abalance due and owing from W. C. Schull, contractor, to the above-named plaintiffs, (who I find to be, as a matter of fact, sub-contractors,) for lumber and material furnished by said plaintiffs, sub-con tractors as heretofore set forth, in the sum of $570.47; and said sum of $570.47 still remains due and owing to said plaintiffs from W. C. Schull, contractor.
“ 7. On the 18th day of January, 1886, the plaintiffs filed in the office of the clerk of the district court of Republic county, Kansas, a material-men’s lien and affidavit, same containing an itemized account and value of said lumber and building material, with credits. On the 17th day of January, 1886, the plaintiffs served a full, true and complete copy of said material-men’s lieu, just referred to,, with credits, on Charles A. Campbell, director of said School District No. 3, in Republic county, Kansas.”
MATTERS OF LAW.
“1. The lien statement filed in the above-entitled action by the plaintiffs, sets forth the amount claimed and the items thereof, sufficiently definite to give reasonable notice to purchasers and creditors of the existence and extent of the lien, and therefore complied with article 27 of liens of mechanics and others, of chapter 80, General Statutes of Kansas, and said lien statement was duly filed in the office of the clerk of the district court in and for Republic county, Kansas, and copies were served as required by § 631 of statutes just above mentioned.
“ 2. The referee has the power, and under the reference of this case it became his duty, upon good cause shown, to allow any and all amendments to the pleadings that may be necessary to justly determine the matters in issue between the parties before him; and therefore, upon good cause being shown, allows the plaintiff to amend his petition by attaching a copy of the mechanic’s lien filed in this case to same.
“3. There is due plaintiffs from defendant W. C. Schull the sum of $570.47, with interest at seven per cent, from and ■after the 1st day of January, 1886, for which said plaintiffs are entitled to judgment in this action against said defendant, together with costs. And said plaintiffs are entitled to have a lien upon the land, school building and improvements just aforementioned, to the amount of $570.47, with interest at seven per cent, per annum from and after the 1st day of January, 1886, and costs of this action.”
There were exceptions to the report of the referee, and a motion for a new trial, and all questions raised by the plaintiff in error were properly saved. Several of these questions are unimportant, and are made on side issues. Those that are important in view of the issues made by the pleadings we will proceed to notice.
I. It is claimed that there was no sufficient statement of lien filed. This particular contention is based upon the fact that the statement is indefinite, uncertain and void, and because the first page of the statement does not give in detail the dimensions of the lumber, or the price of each particular kind of lumber, and therefore does not contain in the language of the statute, “the amount claimed and the items thereof as nearly as practicable.” The amount of the material furnished as stated on this page, is $1,639.60. There is evidence in the record tending strongly to show that this was a lump purchase; that by the agreement of Schull and the plaintiffs below this bill of material included on the first page was sold at a discount from yard prices, and that Schull promised to pay the sum of $1,639.60 for all that was included on the first page of the statement. The statement shows among other items on the first page 8,000 feet of siding; 1,000 feet of fencing; 4,000 feet of flooring, and many other items, giving number, size and length; but the price of each is not carried out, because all these things were grouped together and sold for a lump sum. It is apparent that the statement, so far as this particular page is concerned, is not so indefinite and uncertain as to be void. Objection is made to the use of abbreviations that aré almost universally used by business men, but their significance is so apparent that it would be a waste of time to comment at length on such criticisms. The statement of the lien is definite and certain enough for all practical purposes, and served every purpose of notice to the officers of the school district, and is as near a substantial compliance with all the requirements of the statute as the nature of the transaction will allow.
II. There is some evidence to sustain the findings of the material facts as made by the referee, and they are approved by the trial court, and are conclusive here; but in view of the objections urged by counsel for plaintiff in error, that the referee refused to answer many special questions propounded, and assuming, without deciding, that he can be required to do so to the same extent as a jury, yet it appears that every material fact was found by the referee, and that the numerous questions propounded involved unnecessary details, and were in the nature of a cross-examination.
One other objection is deserving of a passing note. It appears that, after most of the evidence was in, it was discovered that the plaintiffs below had failed' to attach to the amended petition a copy of the statement of lien filed in the office of the district clerk, but it was referred to in the petition as hereto attached and marked “Exhibit A.” The referee permitted this to be attached to the petition, and this is characterized by the plaintiff in error as a material amendment that the' referee had no power to make. We regard it as an act of neglect that might be remedied by the permission of the referee. It did not change the issues in any respect, and could not by any possibility affect any substantial right of either party. It is not permitting an amendment of the pleadings so as to change any issue made, as that would be clearly without the power of the referee.
We think substantial justice has been done, and no material error committed that ought to bring about a reversal, and recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
This suit was commenced before a justice of the peace in Allen county, and appealed to the district court. Plaintiff’s bill of particulars alleged in substance that: On April 26, 1886, the plaintiff’s agent was moving a lot of cattle, fifty-three in number, along the public highway, and in doing so it was necessary to cross the track of the railroad company. When the cattle got to the track, a freight train, which was an hour late, came along and ran into the cattle, crippling two so that they had to be killed; that the engineer could plainly see them; that the whistle was not blown eighty rods from the public highway; that if the whistle had been sounded plaintiff’s agent would have been able to prevent the cattle from being on the track; that there were hedge fences on either side of the railroad, which prevented plaintiff’s agent from seeing the train. Plaintiff’s agent did not hear the train, as the whistle was not blown until it was within 100 yards of the crossing; and the negligence of the defendant consisted in not sounding the whistle as required by law, and in not checking the speed of the train after the engineer saw the cattle. He asked for damages in the sum of $50.
The evidence of the plaintiff showed that he . was taking his herd of about fifty-three head of cattle to a pasture some four miles north of where he lived; the herd was in charge of his hired man, and the plaintiff went ahead about half a mile; as he crossed the railroad track where the accident occurred, he looked up and down the railroad and saw no train or smoke; he could see one and one-half miles south from where the road crossed the track; the regular time for the train to pass this point going north was about two o’clock p. M.; on the day the cattle were injured, it passed this crossing after three o’clock; at the time the train crossed the road where the cattle were injured, the plaintiff was about one-half mile northeast of the crossing; as the train was running north approaching the crossing, the danger signal for cattle was heard thirty or forty rods from the crossing, and was heard again very near, or upon the crossing; there was a hedge fence on each side of the railroad, which rendered it difficult for the engineer to see very far on each side of the track; the train was running at the speed of from fifteen to twenty miles an hour; the engineer could not have stopped the train in time to prevent the injury after the second whistle; the cattle were struck and injured, so that it was necessary to kill one cow of the value of $30, and one heifer worth $20. The train was going up grade at this particular point, and there was no evidence to indicate that the engineer slacked the speed of the train after giving the first cattle alarm, and the only slowing-up was occasioned by the train going up-grade. There was some evidence showing that the signal was not given at the whistling-post. When the man in charge of the cattle first heard the train, he rode up to the crossing to do what he could to get the cattle off the track.
A demurrer was interposed to the evidence of the plaintiff below, and was overruled. The company offered no evidence in the court below. The jury returned a verdict for the plaintiff for $50. The motion of the defendant below for a new trial was overruled, and judgment rendered for the plaintiff' for the amount of the verdict.
The plaintiff in error complains that the alleged negligence to sound the whistle eighty rods from the public crossing was not the cause of the accident, and therefore the company is not liable; that the failure to sound the whistle must have been the proximate cause of the injury, and that the defendant below could only be liable for damages sustained by reason of such neglect. No complaint is made of the instructions of the court.
We have examined the evidence in this case very carefully, and are not prepared to say that the injury was not caused by reason of the failure to sound the whistle. We cannot say positively what the result would have been, under all the circumstances of the case, if the whistle had been sounded where tbe law requires it to be done. It might have given sufficient time to move the cattle over the railroad track. A part of the herd had already crossed; and it would hardly have been prudent to attempt to drive the cattle back and separate the herd. The facts as presented to us in the record would seem to indicate that it was a part of wisdom for the man in charge to use his best efforts to get the cattle over the crossing as speedily as possible, rather than to attempt to turn them back; and if the proper warning had been given when the train was eighty rods from this crossing, he might have had sufficient time, by hurrying up the herd, to get them over. We think there was some evidence upon which to base a finding.
Again, the evidence indicates that the speed of the train was not slackened, save the natural slowing-up of the train as it went up-grade. It may be that the jury based the verdict upon this ground of negligence. We cannot say.
We do not feel disposed, under the evidence as it appears to us, to disturb the verdict of the jury in the court below, and therefore recommend that it be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The plaintiff in error asks a review and reversal of an order of the district court of Sumner county, correcting an entry of judgment in a foreclosure proceeding.
James H. Luckey and wife were the owners of a tract of land in Sumner county, and in April, 1878, they gave a mortgage thereon to secure the payment of $300. In January, 1880, they gave a second mortgage to John D. Brown, to secure the payment of $203.75. Afterward, on June 16, 1880, they conveyed a strip of land through the tract to the Southern Kansas & Western Railroad Company, for a projected railroad. Default having been made in the payment of the claims secured by the mortgages, foreclosure actions were begun in 1881 by J. K, O. Sherwood, the owner of the first-named mortgage, and by John D. Brown, the owner of the second mortgage. These actions were consolidated, and the Southern Kansas & Western Railroad Company was made one of the defendants, and in its answer it set up the conveyance by Luckey and wife to itself of a right-of-way across the land, and asked “that if a judgment of foreclosure is made herein in favor of plaintiff, and the sale of the premises covered by the mortgage described in the petition, to sat isfy such judgment, be had, the officer making the same be directed and required by this court to first sell that part of said property not covered by this defendant’s deed herein described.” On April 12, 1882, a decree of foreclosure was rendered, in which it was found that there was due to Sherwood the sum of $405.86, which was a first lien upon the land, and to Brown the sum of $277.60; and the premises were ordered to be sold, excepting so much of the same as was included in the right-of-way of the railroad company; and that in case the proceeds were insufficient to satisfy the judgment, the right-of-way of the railroad company should be sold. The property was sold, in pursuance to the judgment, on April 7, 1883, for the sum of $491, which sale was subsequently confirmed, and an order of sale against the right-of-way of the railroad company was granted, to satisfy the balance remaining unpaid upon the judgment. On December 27,1883, John D. Brown filed a motion for an order correcting the journal entry in the foreclosure proceeding, alleging that there had been a mistake made in entering the name of the railroad company, it having been designated as “The Sumner, Cowley & Western’ Railroad Company,” instead of “The Southern Kansas & Western Railroad Company.” The plaintiff in error appeared in opposition to this motion, and the court, after hearing testimony, granted the motion, and corrected the entry.
The court possessed ample power to correct the entry so that it should correspond with the judgment actually rendered. If the company was improperly designated by the clerk in entering the judgment, it was competent for the court even at a subsequent term to make the correction. (Tobie v. Comm’rs of Brown Co., 20 Kas. 14; Small v. Douthitt, 1 id. 335; Clevenger v. Hansen, ante, p. 182; same case, 24 Pac. Rep. 61; Civil Code, §568.) The change did not involve the correction of any judicial error, but simply a mistake of the clerk. The corrected name was one by which the company was designated in the pleading, and the one under which it answered. The name occurs twice in the judgment entry, and even these names are unlike, and neither corresponds with the name stated in the pleadings. In the order of the court confirming the sale, however, the correct designation is given, or at least it corresponds with that mentioned in the pleadings. If there was power in the court under the pleadings and motions to make the correction, the plaintiff in error is concluded.
The company claims that the evidence given at the hearing did not warrant the action of the court; but as it cannot be said that the evidence is all preserved in the record, that question is not before us. There is no statement outside of the certificate of the judge attached to the case-made, that it contains all the evidence, and hence the sufficiency of the evidence cannot be considered. (Eddy v. Weaver, 37 Kas. 540; Hogue v. Mackey, ante, p. 277; same case, 24 Pac. Rep. 477, and cases cited.) An examination of that which is preserved satisfies us that the order was rightly made, and that no injustice was done.
Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This was an action on a promissory note for $1,000, made and dated December 25, 1872, by John B. Easter and A. C. Easter, payable to Mary Ann Easter one day after date, with interest at 6 per cent, per annum. When the action was brought in December, 1886, the following indorsements were upon the back of the note:
“Paid on the within note $5, Sept. 14, 1884; paid on the within note $5, Dec. 14, 1884; paid on the within note $88, Feb. 19, 1886.”
John B. Easter died in December, 1885, and in the following year the note was exhibited in the probate court as a demand against his estate, after notice to Anna N. Easter, who was the wife of the deceased, and had been appointed as executrix of his estate. She defended upon the ground that the claim was barred by the statute of limitations; and in respect to the indorsements on the note, she denied under oath that any payments were ever made upon the note by the maker, or by anyone for him. Judgment was rendered in the probate court in favor of the claimant, for $1,795; and upon appeal to the district court, where the case was tried with a jury, the result was in favor of the executrix, it being determined that the action was barred by the statute of limitations. An action accrued upon the note one day after its date, and five years thereafter it was barred under the statute, unless revived by partial payment, or by a written acknowledgment or promise of liability thereon. It was conceded that no indorsements were written upon the note until some time after the death of John B. Easter. On the trial the indorsements were first introduced in evidence over the objection of the executrix; but when it was developed that they were not made during the lifetime of John B. Easter, nor until more than eight years after the bar of the statute had run against the note, the court withdrew the indorsements from the consideration of the jury; and this ruling is the first error assigned.
The ruling of the court in withdrawing the indorsements was right. The controversy between the parties was, whether the payor of the note had by a payment acknowledged the existence of the debt; and the indorsements written on the back of the note by the payee were offered in evidence to establish that fact. They did not constitute any evidence of payment as against the payor of the note. They were not made until more than thirteen years after a cause of action had accrued, nor until after the death of the payor. They were therefore ex parte statements of the payee, favorable to her own interests, and upon well-settled rules were not admissible as evidence in her behalf. If they had been written by the payee before the lapse of five years, they might have been treated as declarations against her own interest, and on that ground might have been received as evidence in her favor. If the payee could make indorsements after a bar was complete, without the consent or direction of the payor, it would be within his power to manufacture evidence in his own behalf. The authorities all agree that indorsements made by the creditor after the statute has run upon the claim, and with-, out the authority or knowledge of the debtor, furnish no evidence whatever that the payment was made, for the reason that it is an ex parte declaration by a party in his own favor, and no one is allowed to make evidence for himself. (Wood, Lim., §115, and cases cited; Angelí, Lim., §241.)
After the court had stated the issue which had been formed between the parties, it instructed the jury “that the burden of proof rests upon the plaintiff, and to entitle her to recover in this suit she must prove by the preponderance of the evidence that John B. Easter executed the note sued on, and that the payments alleged to have been made upon said note were in fact made by said John B. Easter in his lifetime, and were by him intended when made to be applied upon said note.” The plaintiff contends that the evidence established that money was paid by John B. Easter to Anna N. Easter, and that the money so paid must be regarded either as payments upon the note, or gifts; and that the presumption is that it was a payment rather than a gift, and that the burden of showing that the sums were not gifts devolved upon the defendant. The defendant had filed a verified denial that the payments were made as alleged by the plaintiff, and it was a controverted question on the trial whether any money was paid upon the note upon which the action was brought. Under the issues framed between the parties it was not enough to show that there had been money transactions between the plaintiff and John B. Easter during his lifetime, but the burden was upon the plaintiff to show that they related to, and that any payments of money made were made upon, the identical debt upon which suit has been brought. If an additional instruction was desired by the plaintiff' in regard to the presumptions as between gifts and payments under a given state of facts, it should have been requested; but no such request was made, and hence no error was committed by the court in failing to further amplify its instructions. The evidence is sufficient to sustain the verdict of the jury.
There is nothing substantial in the claim that the motion for a new trial should have been granted on the ground of the misconduct of the defendant’s attorneys.
Finding no error in the record, the judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This case was tried before the district judge, a jury having been waived by the parties. No special findings of fact were made or filed. A general finding was returned by the court in favor of Charles Summers. Thereupon the state filed its motion for a new trial, upon the following grounds:
“ 1. Irregularities in the proceedings of the court, by which the plaintiff was prevented from having a fair trial.
“2. The decision of the court is not sustained by sufficient evidence.
“3. The decision of the court is contrary to law.
“4. Error of law occurring at the trial, and excepted to at the time by the plaintiff.”
The trial judge overruled the motion for a new trial pro forma. This was erroneous, and sufficiently prejudicial to reverse the judgment. The necessity for filing and presenting a motion for a new trial is fully stated in Nesbit v. Hines, 17 Kas. 316, as follows:
“ Counsel for plaintiff in error would ignore the motion filed in the district court, and ask us to grant a new trial because of the errors on the trial. Can this be done? If it can, the motion for a new trial is a useless ceremony, and might as well be abandoned altogether. A party has no abstract, inherent right to a new trial. He has a right because and so far only as the statute gives it to him. It prescribes the way to obtain it, and that is by motion filed within three days. If he fails to pursue this mode, he loses the benefit of any errors on the trial, and is concluded as to all matters occurring at the trial.”
See also City of Atchison v. Byrnes, 22 Kas. 65; Clark v. Imbrie, 25 id. 424.
In The State v. Bridges, 29 Kas. 138, it is said:
“The district judge did not approve of the verdict of the jury, as is usually done by trial courts in similar cases when such a motion is overruled, but expressly announced that he overruled the motion proforma, and declined to look into the evidence or pass upon its sufficiency. This was serious and grievous error. It was a refusal on the part of the trial court to perform its bounden duty, alike unjust to this court and the appellant. When a verdict is challenged upon the ground alleged in this case, the judge, who has the same opportunity to hear and see the witnesses as the jury, should declare his approval or disapproval of the verdict; and if he refuses to do this by overruling the motion pro forma, and thereby attempting to transfer the whole question to the supreme court, he trifles with the sacredness of his duty.”
In M. A. & B. Rly. Co. v. Keeler, 32 Kas. 163, it is stated :
“ It is error for a trial court to overrule a motion for a new trial merely pro forma. Every trial court should exercise its best judgment when such a motion is presented to it, and should rule accordingly.”
(See also Insurance Co. v. Neff, 43 Kas. 457.)
The state had the same right to have its motion for a new trial fully considered as it had to contest the petition of Summers. If the court could not consider all of the grounds in the motion for a new trial and pass upon the merits of the motion, it ought to have granted the same. It is better to allow a new trial where the court cannot consider the motion for a new trial on its merits, than to refuse it.
There is something stated in the journal to the effect that the trial judge considered the motion for a new trial, but as the further statement is made that the court overruled the motion pro forma, we cannot assume the court properly consid ered the various grounds alleged therein; otherwise, it would not have been stated that the motion was overruled pro forma.
The judgment will be reversed, and a new trial granted.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action commenced in Kearny county by the board of commissioners of that county against J. W. Rush and The First National Bank of Larned, under §39 of chapter 25 of the act relating to counties and county officers. The section reads:
“All fees, costs or other allowances, or any fees obtained from or allowed against any county, when the same are not authorized by law, and not refunded on demand, may be recovered back in a civil action, in the name of the proper county, in any court of competent jurisdiction; and on the rendering of the judgment in any such case, the justice or the court rendering the same shall add one hundred per cent, to the same, to go to the county, and also a fee of ten dollars if in a justice’s court, and twenty-five dollars if in the district court, to go to the county attorney or other person prosecuting the same.” (Gen. Stat. of 1889, ¶1658.)
A summons was issued by the clerk of the district court of Kearny county to the sheriff of Pawnee county, and served in that county on each of the defendants. Judgment was rendered upon default against each of the defendants for $31,213.18. This judgment was subsequently setasideby the district court upon the ground that the court had no jurisdiction of the defendants, or either of them. This proceeding has been brought to reverse the ruling of the district court. It is claimed by the plaintiff that the action in the court below was for the recovery of a penalty imposed by statute; therefore that the action was properly brought in Kearny county, and the service of the summons properly made in Pawnee county. (Civil Code, §48.) At most the action is prosecuted to recover illegal allowances and a penalty. The penalty, if any, follows as an incident to the recovery of the illegal allowances. An action could not be brought under the statute for the penalty only, nor could an action under the statute be brought for the recovery merely of the attorney’s fee. There must be a verdict, or general finding, for a specific amount, before one hundred per cent, can be added. The illegal fees, costs, or other allowances sued for must first be ascertained, and then on the rendering of the judgment for such illegal fees, costs, or other allowances, it is the duty of the court to add one hundred per cent, to the same. If the action is before a justice, an attorney’s fee of $10 must be added. If the action is pending in the district court, an attorney’s fee of $25 must be added. The action, therefore, in our opinion, is not merely for the recovery of a penalty imposed by statute, but is an action for the recovery of illegal fees, costs, or other allowances, and when such fees, costs or other allowances are determined by a verdict or finding, the court is to add one hundred per cent, and the attorney’s fees prescribed. The action, therefore, does Dot come strictly within the provisions of said §48. Under the statute, the cause of action or subject-matter must all be for the recovery of a penalty.
"We cannot and ought not to extend the terms of the section to embrace cases not within its language. WEile the per cent, to be added is a large amount, the principal is the same as if only one or more per cent, were to be added, and the action is no more for a penalty than if only a small per cent, in place of one hundred per cent, were to be added on the rendering of the judgment. The district court, in rendering judgment, had no jurisdiction over either of the defendants, and therefore committed no error in subsequently vacating the same. (Civil Code, §55.) If an action could have been brought, or had been brought, for the recovery of the penalty only, a different question would be presented.
It is urged that the petition is fatally defective. In view of the conclusion we have reached, we need not decide this now. We would suggest, however, that if the action is prosecuted, it would be better if the petition is amended so as to expressly allege that the money was drawn from the county treasury upon the orders or warrants of the board of county commissioners, or that the orders or warrants were refunded into county bonds.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
The Missouri Pacific Railway Company commenced this action in the district court of Wyandotte county, to restrain the public authorities of the city of Wyandotte from the collection of taxes levied upon a certain tract of land owned by the railway company, which it is claimed is not within the limits of the city. In the year 1885, the mayor and council of the city of Wyandotte, on the theory that this land was within its corporate limits, levied thereon certain city taxes, as follows: General revenue fund, $140; general improvement tax, $45; bond interest tax, $84; bond sinking fund tax, $28. During this same year special assessment to build sidewalks was made, amounting to $341. The railway company paid the other taxes assessed against this land, and in due time commenced this action. The tract of land so assessed contains about 48.93 acres. It lies east of the Wyandotte town-site with its additions, and west of the Kansas river. It is commonly known as the “cypress yards.” On May 16,1881, an ordinance was passed by the mayor and council of Wyandotte, then a city of the second class, extend ing the city limits so as to embrace the cypress yards and some other outlying territory. The validity of this ordinance is the controlling question in the case. If that is valid, the judgment below refusing to restrain the collection of taxes is right; but if the ordinance is not valid, then the cypress yards were not subject to this taxation for the year 1885. The ordinance is as follows:
“An Ordinance extending the limits of the City of Wyandotte, Kansas, and appropriating funds to aid in building Biverview bridge.
Be it ordained by the Mayor and Councilmen of the Gity of Wyandotte:
“Section 1. On account of the benefits to be derived by extending the limits of the city of Wyandotte, Kansas, it is hereby declared necessary and expedient to extend the limits of the city and annex the following territory, under the rights and privileges guaranteed to cities of the second class by the laws of the state of Kansas, approved March 13, 1872, regarding annexation: Commencing at a point in Summunduwot street, Wyandotte county, Kansas, where the same is intersected by the section line running north and south between sections 9 and 10, in township 11, range 25; thence due south to the southwest corner of the northwest quarter of section 15, township 11, range 25; thence easterly along the north line of Kansas avenue in Armstrong, to a point due south of the east line of ‘ Highland Park ’ addition to the village of Armstrong; thence due north to and along the east line of said ‘Highland Park’ addition to the northeast corner of said addition, thence due east to the east line of the right-of-way of the Union Pacific railway, Kansas division; thence south along the east side of the right-of-way of the Union Pacific railway, Kansas division, to the quarter-section line running east and west to the center of section 15, township 11, range 25; thence east on said quarter-section line to the center of the Kansas river; thence northerly along the center of said river to a point due east of the present east line of the southern limits of Summunduwot street; thence along the southern line of said street to the point of beginning.
“ Sec. 2. That the sum of $3,000 is hereby appropriated to aid in building the Riverview bridge, said money to be issued in orders, bonds, or either, and to be deposited with the mayor of said city, to be paid out only upon the completion of said bridge when accepted by the city engineer.
“Sec. 3. This ordinance shall take effect and be in force from and after its publication in the Kawsmouth Pilot.
“Passed in Council May 16th, 1881.
“A true copy. Ed. N. Sagee, City Cleric.
“Approved May 16th, 1881. R. E. Cable, Mayor.”
The trial court found as conclusions of law:
“1. The ordinance mentioned, so far as it relates to the extension of the city limits, is legal, valid, and binding, but is void as to that portion in which an attempt is made to appropriate $3,000 to the building of the Riverview bridge. The council might legally pass the first part of the ordinance and extend the city limits, but it had no power to appropriate that amount of money by ordinance without a vote of the people. Had both subjects been equally within the power of the council to legislate upon, then the whole ordinance must have been held void, because no court could determine which subject was intended; but one subject being clearly within the power of the legislative body, and the other just as clearly ultra vires, the legislature will be presumed to have done only what they had the power to do, and especially where there is no difficulty in separating the subjects, as in this case.
“ 2. The dedication of the strip of land called Bridge street, by the owner of the land, was an absolute dedication, both present and future, for all the burdens and uses to which said land might be put for the purposes of a public way, and would embrace the uses and burdens incident to a city street when the same might be legally embraced within an incorporated city; and in contemplation of law the owner gave it out of his adjacent lands with a view to subjecting those lands to all the burdens which might follow from such a dedication. The sidewalk tax was properly chargeable against the land of the plaintiff.
“I have not reached this latter conclusion without much hesitation and doubt; but from all the authorities examined — and I have examined many, very few, however, directly upon the point — I think the better reason, as well as the weight of authority, sustains this conclusion of law.
“The other city taxes were legally chargeable against the property of the plaintiff.
“While I do not place my findings in any sense upon the want of equity in the bill, I am by no means sure that a court of equity ought not to be governed in a case of this kind by the fact that it does not anywhere appear that the plaintiff is being injured. The bill will be dismissed.”
Section 9 of the act to incorporate cities of the second class provides “that no ordinance shall contain more than one subject, which shall be clearly expressed ” ' ^ in its title.55 In the case of Stebbins v. Mayer, 38 Kas. 576, this court says with reference to this provision:
“ The language of § 9 is an exact copy of the constitution of the state in relation to bills, with the exception that the word ‘ordinance is used where the constitution uses the word ‘bill. This provision of the constitution is universally recognized as being mandatory upon the legislature. This provision of the statute is as binding upon cities as that of the constitution is upon the legislature in relation to its acts, and by its terms the statute has said that the title of an ordinance must be an index of what it contains.
This much can be said about this particular city ordinance, beyond criticism or doubt. Both the title to and the body of the ordinance contain two separate, distinct and independent subjects, having no connection with each other, and as easily distinguishable from each other as is a stack of wheat from the Argentine smelter. While this court has many times determined that the title of an act of the legislature was not broad enough to embrace all that was contained in the body of the act, and held that part’ not indicated by the title to be void, (see cases of Bowman v. Cockrill, 6 Kas. 311; Comm’rs of Sedgwick Co. v. Bailey, 13 id. 600; Division of Howard County, 15 id. 194; Prescott v. Beebe, 17 id. 320; Swayze v. Britton, 17 id. 625; City of Eureka v. Davis, 21 id. 578; Woodruff v. Baldwin, 23 id. 491; The State v. Bankers’ Association, 23 id. 499; Shepherd v. Helmers, 23 id. 504; Werner v. Edmiston, 24 id. 147; Philpin v. McCarty, 24 id. 393; The State v. Barrett, 27 id. 213,) the exact question here presented has not been passed upon directly; and yet there are some indications of light upon the question, found in the following cases. In Philpin v. McCarty, 24 Kas. 393, Mr. Justice Brewer says:
“But two measures entirely foreign to each other cannot be joined in one act. They must be presented separately, and a separate vote had upon each. . . . An assent to two independent matters jointly, will make neither of them a law. . . . This constitutional requirement . . . was introduced to prevent a certain abuse, and it should be construed to guard against that abuse. This abuse was this: ofttimes a matter of merit commanding general confidence was yoked to something unworthy, and by this union the latter was carried through on the strength of the former. This provision was designed to prevent this; to make every measure stand on its own merits, and to cut off omnibus legislation. These views are well supported by authority. The constitution of New Jersey thus states the reason for the rule: ‘To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other.’ The supreme court of Michigan say (People v. Mahaney, 13 Mich. 494): ‘The practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor advocates of all, and thus secure the passage of several measures no one of which could succeed upon its own merits, was one both corruptive of the legislature and dangerous to this state.’ The supreme court of Iowa express the same idea thus (The State v. County Judge, 2 Iowa, 282): ‘The intent of this provision of the constitution was to prevent the union in the same act of incongruous matters, and of objects having no connection — no relation.’ Cooley, in his work on Constitutional Limitations, p. 143, uses this language: ‘It may therefore be assured as settled, that the purpose of these provisions was, first, to prevent hodge-podge or log-rolling legislation.’ ”
In the case of The State v. Barrett, 27 Kas. 213, Mr. Justice Valentine, stating legal propositions, says:
“ Where an act contains two separate and independent subjects, having no connection with each other, and the title to the act is broad enough to cover both, whether such an act' or any portion of it has any validity has not yet been settled or determined by this court; but we think probably, and as a general rule, it has not.”
The peculiarity of this ordinance is, that its title distinctly contains two separate and independent subjects, which are clearly expressed, as in its various sections. It is as square a case as can be imagined under § 9 of the act incorporating cities of the second class; and the whole ordinance must be held void, unless the first section is saved by the want of power to pass the second. It is claimed, and so far as we are concerned frankly admitted, that the city council had no power to pass the second section of the ordinance, unless a proposition to grant aid to the construction of the Riverview bridge was first submitted to a vote of the electors of the city, and the council authorized by an affirmative vote to do so. Accepting this to its fullest extent, we then have a city ordinance whose title indicates, and its various parts contain, two separate and distinct subjects of legislation — one subject within the power of the council to legislate upon, the other subject wholly without the power of the council. As we have seen by our own reports that the express object of this constitutional provision and of § 9 of the act organizing cities of the second class is to prevent log-rolling legislation and a combination of subjects, by requiring that every legislative bill or city ordinance "shall not contain more than one subject, which shall be clearly expressed in its title,” it would be the plain and natural meaning and import of the words used, that whenever it is manifest that such bill or ordinance does indicate by its title and contain in its sections two subjects entirely different and independent, the constitution is violated, without reference to anything else. If one of the subjects indicated by title and contained in the ordinance is not within the power of the city council, yet the very abuse that was attempted to be prevented by the law is used to secure the passage of § 1, the advocates of § 2 believing, perhaps, that they accomplished their purpose by supporting §1. In other words, before the court can reach the question as to whether or not one of the subjects is without the grant of power to the city council to be regulated or legislated upon, the manifest violation of the constitution in another respect is apparent. And it such an ordinance is void m toto because two subjects are grouped in one title and act, what practical good is to be accomplished by a further inquiry as to these two separate and distinct subjects ? Two subjects shall not be embodied in one act, to prevent certain evils of legislation— so that one cannot be an inducement to the passage of the other. Now if it should manifestly appear that a subject without the power was used as an inducement to pass one within the power, the two being embodied in one act, no court would hesitate to declare both void, even at the end of an investigation into the motives that induced favorable action by a majority of the legislature. How is a court of -last resort to determine what influenced members of the legislature to vote for certain measures ? Shall the determination of the very grave and important questions of the constitutionality of legislation be determined solely by evidence as to the motives of members of the legislature ? We hesitate to announce any such conclusion.
It is said that the case of The State v. Lancaster, decided by the supreme court of Nebraska, (17 Neb. 85,) and also reported in 22 N. W. Rep. 228, is a very strong authority in favor of the validity of this ordinance. This is unquestionably true. If the Nebraska ease is to be accepted as a proper interpretation of the constitutional provision, then it should control this case. The facts in that case were, that in 1883 the Nebraska legislature passed an act entitled “An act to provide for the registry, sale, leasing and general management of all lands and funds set apart for educational purposes, and for the investment of funds arising from the sale of such lands, being article one of chapter 80 of the Compiled Statutes; also, to repeal article three of said chapter 80.” The court say:
“The whole purpose and tenor of the act relate to the sale and leasing of school lands, and the disposition of the funds arising therefrom. Article three of chapter 80 is no part of the act amended, nor does it relate to subjects embraced either in the original or amended act.”
This is a clear statement that the body and title of the act embraced two separate and distinct subjects, having no neces sary connection with each other, and in this respect is as strong as the case at bar. The court also say:
“The attorneys for the relator claim that the house journals show that the house of representatives in 1883 refused to repeal article three of chapter eighty as an independent measure, the vote being 56 against 42 in favor of such repeal. This is not denied by the defendants, and may be considered as admitted. It is pretty clear, therefore, that the legislature was imposed upon, and article three of chapter eighty included in the repealing clause of the amendment, referred to as though it has been a part of the statute amended. It had no connection with it, however.”
The court then further state:
“The rule is well settled that when the title to an act actually indicates, and the act itself actually includes two distinct objects, where the constitution declares it shall embrace but one, the whole act must be treated as void, from the manifest impossibility of choosing between the two, and holding the act valid as to one and void as to the other.” (Citing Cooley on Constitutional Limitations, 147.)
The rule stated is the requirement of a plain mandatory provision of the constitution of this state; that provision forbids the legislature to embrace two subjects in one enactment, and the universal expression of various constitutions and of the supreme courts of the states, whose organic law embraces this provision is, that certain evils of legislation are prevented by it, and hence the true reason why an act, whose title indicates and provisions include two distinct subjects, is void, is because this is expressly forbidden by the constitution, and not from a manifest impossibility in the court choosing between the two. The court has no right to choose between the two. Whenever it manifestly appears that two separate and distinct subjects are embraced in the title and included in the body of an enactment, the whole force of a mandatory constitutional provision is weakened, broken and frittered away, when courts begin to inquire and undertake to determine whether one of the subjects is without the power of the legislature, or whether one is used as an inducement to the passage of the other. Take this Nebraska case, and it is an admitted fact that at the same session of the legislature at which the act in question was passed, the house of representatives had refused to repeal article 3 of chapter 80 as an independent measure. It had the constitutional right to repeal it, but refused to do so on the merits. The repeal was then combined with the other measure, and the invalidity of the repeal thus eifected is not placed upon what appears to us to be its most evident and controlling reason, to wit, that the whole act is void for embracing in the title and body two distinct subjects, but is based upon the principle that a law not connected with the subject of the act amended cannot be repealed by a provision in the nature of a rider upon an independent act. This is a wholesome rule in itself, and might apply in other cases, and we make no criticism upon it, but decline to accept it as controlling the other subject discussed.
It is further said in the Nebraska case, that the constitutional provision applies only in cases in which it is impossible from an inspection of the act itself to determine which act, or rather, which part of the act, is void, and which is valid. Where this can be done, the rule is, that the constitutional provision does not apply, unless it shall appear that the invalid portion was designed as an inducement to pass the valid. Now if the invalid portion of a statute can be used as an inducement to pass the valid, then the legislature is practiciug the very evil that this organic command was intended to prevent. The case seemingly assumes that this could not be done, because, as we suppose, those members of the house who favored the repeal of article 3 of chapter 80 are conclusively presumed to know the invalidity of the repeal. Why not apply this presumption to all members of both houses in all cases in which the title and sections of a proposed act indicate and embrace two separate subjects? The Nebraska ease differs from the one at bar in this essential particular: in that case there is no question but that the legislature of the state had power and control over both subjects; but here it is con tended, and it is probably true, that the city council had no power to make an appropriation to aid in the construction of the bridge, unless the question had been submitted to a vote of the electors of the city, and it was authorized by an affirmative vote to do so. In one case, the legislative power was not rightfully exercised; in the other, there was no original legislative power. We are not disposed to indulge in many refined distinctions about the effect and operation of this constitutional provision. We think the better and safer way to apply it is, that when it manifestly appears from the perusal of an act of the legislature or an ordinance of a city of the second class that the title indicates and the body of the act embraces two distinct and separate subjects, this fact of itself and by its own force, and without . reference to any other or further considerations, renders the whole act or ordinance unconstitutional and void. This seems to better accord with the aim and purpose of the constitution and the act organizing cities of the second class, than to adopt the theory of the Nebraska decision, and proceed under it to first determine whether or not the title indicates and the act contains two separate and distinct subjects, and if it does, to then inquire whether one or both are within the power of the body to legislate upon, and then to endeavor to ascertain whether or not one was used as an inducement to the passage of the other. We think the ordinance of the city of Wyandotte attempting to extend the city limits so as to include this land, and making an appropriation to aid in the building of Riverview bridge, is void in toto; and hence the land in question was not included within the limits of the city of Wyandotte by the force of that ordinance, and was not subject to taxation by the city.
In this view it is not necessary to consider the questions raised as to the dedication by Splitlog of a public road through this land in Riverview bridge, and whether by such dedication this road became a city street, and as to the legality of the sidewalk tax, because it will not be contended that if no part of the tract was within the city limits, and it had never been subdivided into lots and blocks, or platted, a sidewalk tax could be levied thereon.
It is recommended that the judgment of the district court be reversed, and the cause remanded, with instructions to render a judgment on the facts agreed upon and found in favor of the plaintiff in error.
By the Court: It is so ordered.
Horton, C. J., and Johnston, J., concurring.
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The opinion of the court was delivered by
Johnston, J.:
S. M. Ratner was accused of the unlawful sale of intoxicating liquors. The information contained eleven counts, but he was convicted only upon the tenth count, in which it was alleged that at a certain time and place he “did then and there unlawfully sell and barter spirituous, malt, vinous, fermented, and other intoxicating liquors, contrary to the statutes in such eases made and provided.” He appeals, and now insists that the case was submitted to the court upon an erroneous theory. He claims that he was simply charged with an unlawful sale, but that the court instructed the jury that he was on trial for having sold liquor to a person in the “habit of becoming intoxicated.” It is said to have been admitted on the trial that the appellant was a duly-registered pharmacist, holding a legal permit to sell intoxicating liquors; that the sales were made on proper applications, under oath, to William Armstrong; and that the only issue submitted to the jury by the charge was whether William Armstrong was a person in the habit of becoming intoxicated. There is no evidence preserved in the record, and the charge of the court, to which alone we are referred to substantiate the appellant’s claim, is not properly in the transcript. A certified copy of what purports to be a charge of the court is attached to the transcript, but it is not embodied in a bill of exceptions, and it can only become a part of the record by means of a bill of exceptions. (The State v. Smith, 38 Kas. 194.) The record therefore does not sustain the error assigned.
There was no error in overruling the motion in arrest of judgment. While the offense is charged in general terms, it must be held sufficient as against such a motion. A motion to quash was filed in the case, but it was not directed against the count under which the conviction was had, and no objection was made that the charge was indefinite before or during the trial, nor until after a verdict of guilty had been returned, when the motion in arrest of judgment was made. If the attention of the court had been called to the indefiniteness of the charge, it probably and properly would have required the state to describe the offense with greater particularity. The fact that a charge in an information is stated in general terms will usually not be held bad after verdict and judgment, although it might have been held insufficient on a demurrer or motion to quash; and the information in the present case cannot be held fatally defective upon an objection made after the verdict. (Gen. Stat. of 1889, ¶ 2540; The State v. Knowles, 34 Kas. 393; City of Kingman v. Berry, 40 id. 625.)
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the.court was delivered by
Milton, J.:
In this action the district court of Crawford county rendered judgment in favor of Clara Rosecrans, defendant ' in error, and against Joel Winans, plaintiff in error, in the sum of $1018.31. Winans seeks a reversal of the judgment, alleging error of the trial court in three particulars, as follows : In overruling a demurrer to. the petition ; in refusing to allow the introduction of evidence offered by the defendant; and in overruling defendant’s motion for a new trial. The facts necessary to a,n understanding of the questions here presented, for decision are as follows : On and prior to March 1, 188.7, L. Rosecrans and A. C. Post were partners in a bank at Erie, Kan., known as the City Bank of Erie. On that date Winans became a member of the firm. Shortly thereafter Rosecrans sold his interest to C. R. Watt. Watt retired from the firm in the latter part of December of that year, and thereafter the business was conducted by Post and Winans. In March, 1888, they removed their banking business from Erie to Moran, Kan., and the bank was there called the City Bank of Moran. On the 16th of the following May the firm was dissolved, Post retiring from the business and Winans continuing in charge thereof. On the 12th of December, 1887, the City Bank of Erie was indebted to L. Rosecrans in the sum of $2452.34, and on or about the 23d of April, 1888, the City Bank of Moran paid to Rosecrans on that indebtedness the sum of $1500. Before Winans became interested in the bank at Erie, Rosecrans and Post had purchased a note signed by S. W. Davis, who lived in the state of Louisiana. The collectibility of this note depended on a favorable decision of the United States supreme court in an action then pending. After the bank was i’emoved to Moran, L. Rosecrans became a resident of the state of California. Before removing tó that state he agreed with Winans to leave, and did leave, on deposit in the bank the sum of $885.31, which was to become the property of the bank in the event that the Davis note could not be collected, that sum being equal to one-half of the amount of the note.
In March, 1889, Winans brought an action against Rosecrans to recover the sum of $7000, it being alleged that he had been induced by false representations to enter into the banking business with Rosecrans and Post, and that as the result of his connection with the bank Winans had suffered financial loss to the extent of the sum for which he sued. Subsequently Post was made a defendant in the action. Before the trial occurred Rosecrans died, and by proper revivor proceedings, Clara Rosecrans, his sole heir, became a party defendant. The testimony was taken by D. M. Kennedy, as referee. Two of the referee’s findings are as follows :
“10. That at the time of the commencement of this action the said defendant, L. Rosecrans, was not indebted to the plaintiff, Joel Winans, in any sum whatever.”
“15. I find as to the note termed the Louisiana note, that some time prior to the copartnership of Winans, Post & Rosecrans, the said City Bank purchased over its counter a certain note of $2000, with a credit of $1193.42, signed by S. W. Davis, of Louisiana ; that said note was carried as a bill receivable of said bank when the partnership of Winans, Post & Rosecrans was formed. I find further, that, owing to the fact that said note could not be collected until certain litigation then pending was settled and determined, when Mr. Rosecrans was questioned about the matter, he consented to and did leave in the bank the sum of $885.31 to pay his part of said note, in case said note should not be collected, and to secure said bank against his portion of the loss. I find that said note is still uncollected, and that the money so left by said Rosecrans in said bank, for the purpose herein set forth, is still to his credit on the books of said bank.”
The journal entry of judgment, after se.tting out the report of the referee, reads :
“It is therefore considered and adjudged by the court, in consideration of said report.of said referee, that said defendant, Clara Rosecrans, go hence without day, and recover of said plaintiff, Joel Winans, her costs in and about this suit in that behalf expended) taxed at $-; hereof let execution issue. It is further considered and adjudged by the court, that said plaintiff have and recover of and from the defendant A. C. Post the sum of $1000, together with his costs in that behalf expended.”
It further appears from the journal entry that the court confirmed the report of the referee. The Davis note was paid to Winans on December 30, 1890. The present action was brought by Clara Rosecrans to recover the sum referred to in finding No. 15, with interest from the date of the deposit. -The defendant’s principal plea was that the judgment in the former case was a bar to this action. The evidence offered in support of his answer was the entire record of the case of Winans against Rosecrans and Post. The court refused to admit such evidence.
Did the court err to the prejudice of the defendant below in rejecting the evidence offered by him? We think not. There was no former adjudication of the exact matter here in issue, and the evidence offered did'not tend to prove such an adjudication. All matters connected with the partnership were adjudicated, and it is clear, from the findings made by the referee, the judgment of the court, and the evidence offered by the defendant below, .that the deposit was regarded and treated in the former action as a matter outside the partnership affairs. When the first action was tried the ultimate ownership of the deposit was not known, and, therefore, could not have been declared by the court. The disposition of that deposit was not within the issues of the case. The principle of law applicable here is well stated in the case of Scott v. Wagner, 2 Kan. App. 386, 42 Pac. 741, in which the ■first paragraph of the syllabus reads :
“A former judgment between the same parties cannot be held to be res adjudicata upon a matter controverted in a second action when the causes of action •are not the same, and when it does not appear from the face of the record that such matter was determined in the former case nor that its determination was necessarily involved in the judgment.”
A careful study of the entire record leads to the conclusion that ■ no harmful error was committed by the district court in the trial of this case, and its judgment is therefore affirmed.
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The opinion of the court was delivered by
Milton, J.:
This was an action by John Leech against W. M. Sleeth, in person, and as the Arkansas City Manufacturing Company, on a promissory note for $1000, signed “ The Arkansas City Manufacturing Company, W. M. Sleeth.” An order of attachment was issued at the commencement of the action, and certain personal property was seized thereunder. An order was entered discharging the same, and the plaintiff below now seeks a review of such order.
On and prior to March 30, 1892, W. M. Sleeth and Peter Pearson were partners in the manufacturing of furniture under the firm name of the Arkansas City Manufacturing Company, and on that date Sleeth, for the firm, executed and delivered to the First National Bank of Arkansas City, of which Sleeth was then the .president, a chattel mortgage covering the entire property of the firm to secure a note of $2500. Both the note and mortgage were made payable to H. P. Farrar, cashier of the said bank. The mortgage was immediately filed for record. It contained a clause to the effect that said mortgage was intended to convey and cover all of the property and machinery and goods manufactured, being manufactured and to be manufactured in, around and about the building known as the Plumer chair factory. On the 6th day of March, 1894, a renewal affidavit was duly filed, in which it was stated that the entire sum secured by the chattel mortgage remained unpaid. After the mortgage was given Pearson withdrew from the firm, and thereafter, on June 15, 1893, Sleeth gave to the plaintiff in error a'chattel mortgage to secure the payment of the note sued on herein, which bore date May 8, 1893, and was given for borrowed money. The mortgage to Leech covered “all manufactured furniture complete and in process of completion, and all the material to be used in the manufacturing of furniture of every kind and character, together with all lumber," belonging to the Arkansas City Manufacturing Company.
Leech was not aware that this mortgage had been executed until shortly after it had been filed with the register of deeds. The mortgage to the bank was not referred to in the Leech mortgage. Leech failed to file an affidavit in renewal of his mortgage. He appears to have been informed as to the existence of the mortgage to the bank. In December, 1894, Sleeth surrendered possession of the mortgaged property to the bank, which thereafter placed him in charge of the property as its agent. After the mortgage was given to the bank, Sleeth continued to carry on the business of manufacturing furniture and selling the same in the usual course of trade and also purchased from time to time material for manufacturing purposes. A considerable part of the property levied on was furniture which, had been manufactured long after the mortgage was given. Some of the furniture seized had been manufactured after the bank had taken possession of the mortgaged machinery and other property.
The plaintiff in error contends that the mortgage to the bank is void for the reason that it attempted to mortgage property thereafter to be acquired. This contention is not well taken, under the foregoing facts, since at the date of the levy under the order of attachment the mortgagee was in possession under a voluntary delivery by the mortgagor. This case is ruled by the decision in Cameron, Hull & Co. v. Marvin, 26 Kan. 612-628, in which the court, after declaring that, while contracts in respect to property thereafter to be acquired might be valid as contracts, they could not be treated as chattel mortgages, employed the following language:
“ Such contracts, however, are always held valid as though they were chattel mortgages, as against third persons who have not in the meantime obtained any specific interest in the property, when the mortgagee has obtained the possession of the property under the contracts. (Citing cases.) When a mortgagee takes, possession of the future acquired property under such a stipulation in the mortgage, he then holds the property by way of pledge, but in the same manner as though the mortgage had been executed at the.time he takes the possession of the property, and in the same manner as though he had taken the property under and by virtue of a chattel mortgage covering the property.”
The court i also quotes the following from Jones on Chattel Mortgages, section 178 :
“Delivery of possession under a mortgage before rights have been acquired by others will cure any invalidity there maybe in the instrument, whether aris ing from an insufficient execution of it, omission to record it, or from its containing a provision which makes it void except as between the parties.”
The order discharging the attachment will be affirmed.
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The opinion of the court was delivered by
McElroy, J.:
This was an action in replevin brought by Rebecca Strawn against J. H. Weather- ford, as sheriff of Jefferson county, to recover the possession of personal property. A trial was had before the court and a jury, which resulted in a verdict for plaintiff. The defendants’ motion for a new trial wag overruled, and they present the case to this court for review, alleging that the trial court erred : (1 ) In the admission of evidence ; (2) in instructing the jury to return a verdict for plaintiff; and (3) in overruling the defendants’ motion for a new trial.
The record discloses that Rebecca Strawn, on or about March 13, 1894, commenced two actions in replevin against the sheriff to recover the possession of two horses, one colt, two cows, one yearling heifer, one yearling steer, and fourteen shoats. The answer in each case was a general denial. J. H. Strawn and Rebecca Strawn are husband and wife. The execution creditors claim the property by reason of executions levied on the property as that of J. H. Strawn, the execution debtor. At the trial, by consent, Lottie C. Kemper and the Delaware Bank, judgment creditors of J. LI. Strawn, were substituted as defendants, and the two cases were consolidated. When the evidence was all in, the court instructed the jury to return a verdict for the plaintiff. The court found the value of the property to be $110, and rendered judgment for plaintiff.
Rebecca Strawn', on November 21,1892, commenced an action against her husband, J. II. Strawn, for divorce and alimony. At the same time she procured an injunction restraining him from selling or disposing of their common property. On the 22d day of May, 1893, the parties to that action made and filed the following stipulation :
“It is hereby mutually agreed and stipulated by and between the parties to this action, that the plain tiff shall have the following property as her absolute property, to wit: Her choice of one span of the horses mentioned in plaintiff’s petition ; her choice of two (2) of the cows mentioned in the petition; her choice of five (5) of the hogs mentioned in the petition. . . . If defendant takes the Keeley cure-or otherwise reforms from the use of intoxicating liquors to the satisfaction of the plaintiff, this case to be dismissed at the next term of this court. The plaintiff consents that enough of the other property, mentioned in the petition, may be sold, sufficient to pay defendants’ expenses in taking the Keeley cure, said attorney fee of twenty-five dollars, and such other just debts of defendant as the parties to this agreement may agree upon. . . .”
The plaintiff claimed the property in question by reason of the stipulation made and filed in that case. The record and pleadings in the divorce action were competent to show that there was such an action pending, and that there was a real controversy between the parties. The stipulation was properly admitted as tending to show the source of the plaintiff’s title to the property.
The next contention is that the court erred in instructing the jury to return a verdict for the plaintiff. We do not know by what right the testimony of the husband, J. H. Strawn, was admitted. However, if his testimony was competent for any purpose, it tended to support the contention of the defendants in the trial court. We think the court should have submitted the case to the jury with proper instructions for their determination.
The judgment will be reversed, and cause remanded with direction to the trial court to sustain the motion for a new trial, and for further proceedings.
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The opinion of the court was delivered by
Schoonover, J.:
This action was brought in the district court of Barber county by the defendant in error Frazee to recover usurious interest which he claimed to have paid to plaintiff in error The Citizens’' State Bank. The petition alleged, in substance, that the plaintiff was a member of a partnership, and that on certain dates the partnership borrowed money of the defendant and gave therefor promissory notes; that on all of said notes the defendant collected and the plaintiff and his partners paid to said defendant interest at the rate of one and one-half per cent, per month and that defendant collected said interest in advance, and that said interest was usurious, and the plaintiff paid one-fourth part of said interest and usury therein as collected by said defendant; and that, on certain other dates, the plaintiff, individually, gave to defendant certain promissory notes, on some of which he paid interest at the rate of one and one-fourth per cent, and upon others interest at the rate of one and one-half per cent, per month, and that such interest was paid in advance and vas usurious.
The defendant demurred to the petition, stating, among other grounds of demurrer, that there was a defect of parties plaintiff, and that several causes of action were improperly joined in the petition. The court overruled the demurrer, and the defendant, having elected to stand upon its demurrer, brings the case here for review.
We think that the demurrer should have been sustained. • The plaintiff attempted to unite a cause of action arising out of a partnership transaction with one arising out of an individual transaction. From the averments of the petition, it appears that upon the notes given by the partnership the interest was paid in advance or incorporated into the notes. The notes were paid by the partnership and the interest was therefore paid out of partnership funds, and, this being true, the plaintiff could not bring an action to recover usurious interest paid by the partnership. All the mem bers of the firm should be joined. There was> therefore, so far as the cause of action arising out of the partnership transaction is concerned, a defect of parties plaintiff, and as the action arising out of the partnership transaction was joined with one arising out of an individual transaction, there was a misjoinder of causes of action.
Defendant in error in his brief asks that the petition in error be dismissed, for the reason that the certificate of the clerk of the district court to the transcript is insufficient. Objection is also made to the consideration by this court of the petition in error because no motion for a new trial was made in the court below. While the certificate of the clerk is long and contains many things that are unnecessary, we think that it complies substantially with the requirements of the statute.
It was not necessary for defendant to file a motion for a new trial in order to entitle it to have the ruling of the court on the demurrer reviewed by this court. (Water-Supply Co. v. Dodge City, 55 Kan. 60, 39 Pac. 219.) The judgment of the’district court is reversed.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by plaintiff in error Badger Lumber Company against D. R. Malone and others for a foreclosure of a material-man’s lien for lumber and materials furnished Malone with which to erect a warehouse for the storage of hay. The case was tried by the court, without a jury, on an agreed statement of facts, and judgment was rendered for defendants. The plaintiff filed its motion for a new trial, which was overruled, and presents the case to this court for review, alleging that the court erred in its conclusions of law.
The only question presented by the record in this case is, Was the building in controversy real or personal property ? If the warehouse was personal prop erty, the court rendered the proper judgment; if it was real property, the court should have rendered judgment for the plaintiff. The fee title to the lands on which the building was erected was in the Chicago, Rock Island & Pacific Railway Company. The only estate Malone possessed in the realty was such estate as he acquired by a written agreement which he held, as follows :
“This Memorandum Witnesseth: That the Chicago, Rock Island & Pacific Railway Company, a corporation engaged in the operation of a railway, hereby grants to D. R. Malone a license or permit to erect and maintain, for a term expiring on the 1st day of May, 1895, a hay barn, to be located at the south end of house track at Latimer, Kan., but this license is granted upon the express conditions : First, that said premises and the structures thereon to be erected under this license shall not at any time be so used as in any manner to interfere with the use or enjoyment of the railway of the licensor. Second, that the said licensor shall not be in any manner or form liable to said licensee, his executor, administrator, heirs, or assigns, for any damage which may be caused by any fire which may be in any manner started on said premises by the use of the licensor’s railway, engines, cars, or other machinery, or communicated to said premises and the structures erected thereon under this license, or to the property contained therein, from other buildings situated on said right of way, or adjacent thereto. Third, the said premises shall not be used by the licensee, his executor, administrator, heirs, or assigns, for any unlawful purpose. Fourth, this license shall not be assignable or transferable by the licensee to any other person or persons, except upon the written consent of the licensor indorsed thereon. Fifth, this license may be annulled and revoked, upon or at any time before or after the expiration of the period above named, by the licensor, upon thirty days’ written notice of such revocation, for any reason that said licensor may assert, and, upon such termination of this license, all build ings and structures placed upon said premises under such license shall be wholly removed by the licensee, his executor, administrator, heirs, or assigns, as the case may be, within the said period of thirty days. Sixth, that the said licensee shall commence the erection of the buildings to be erected under this license within thirty days from the date hereof, and complete the same within thirty days from this date. Seventh, that said building shall be used continually for storing and baling hay in the regular course of trade, and an omission to so use, if for a period of ninety days, without the consent in writing of the licensor, shall operate to forfeit this license, to the same purpose and with the same effect as if annulled in the manner provided in the fifth condition above set out.
[Signed]
The Chicago, Rock Island & Pacific Rly. Co.
Accepted by D. R. Malone.”
The defendants in error contend that the agreement was a “mere license” and not a lease, and that a license does not create such an estate as can be subjected to foreclosure and sale under the mechanics’-lien act. Is the agreement a license or a lease? A license is defined to be “ an authority given to do some one act, or a series of acts, on the land of another, without possessing any estate in the land.” Alease is defined to be “a species of contract for the possession and profits of lands and tenements, either for life or for a certain term of years, or during the pleasure of the parties”; “a contract by which one person divests himself of,, and another takes possession of, lands or chattels, for a term, whether long or short” ; “a conveyance of any lands or tenements made for life, for years, or at will, but always for a less time than the lessor has in the premises.”
We are inclined to the opinion that Malone, by the contract, held as lessee, and that he possessed an estate in the premises sufficient to support a lien for material furnished in the erection of the warehouse. Pie was, by the agreement, given possession of the lands on which the building was erected for a definite, fixed period of time. On this question our supreme court has said, in Seitz v. U. P. Railway Co., 16 Kan. 133:
"Then, taking the whole of the law together, and it undoubtedly means that a mechanic’s lien shall operate upon the whole of the estate which the person procuring the labor and materials may have in and to the property for which he procures the same, whatever may be the character of that estate, but that such lien cannot operate upon anything more than such estate, and that, so far as it does operate, it is the paramount lien upon the enhanced value given to such estate by the labor and materials. That is, it is the paramount lien upon the surplus value of the estate over and above what would have been the value of such estate without such labor and materials. In the present case Mrs. Bickerdyke had a contingent equitable estate in the property in question. The plaintiff had all the rest of the estate. Upon this contingent equitable estate of Mrs. Bickerdyke the defendants’ liens operated, and upon that they were the paramount lien to the extent above mentioned, but they operated upon nothing more.”
In Hathaway v. Davis & Rankin, 32 Kan. 693, 5 Pac. 29, the court said :
“ We think a mechanic’s lien or lien for material or labor may attach in any proper case to a leasehold estate ; and the fact that the tenant may have a right to remove his buildings, fixtures and machinery from the leased premises, instead of lessening the lien or preventing it from attaching to the leasehold estate, will, as we think, enlarge the lien and enable the lien-holder to obtain a greater interest in the leased premises. The privilege of moving the buildings, fixtures and machinery from the leased premises will not operate to the detriment of the lien-holder, but will inure to his benefit. . . . Whether any such lien can attach to buildings, fixtures, and machinery, independent of a leasehold or other interest in real 'estate, it is not necessary in this case to determine, for no such question is involved in the case.”
We conclude the law to be that a mechanic’s lien affects whatever estate or interest in the land upon which the building is erected is owned and possessed by the person who causes the erection of the building at the time when the contract is made for the material. And if the person contracting'to have the building erected has any estate or interest in the land upon which it stands, the lien of the material-man who furnishes the material extends to the whole of that estate or interest, whatever it may be. The word “owner” is not limited in its meaning to an “owner in fee,” but includes also an owner of a leasehold or other estate. It therefore follows that the estate possessed by the builder, whatever its extent may be in the land, is subject to a mechanic’s lien and may be sold. On the agreed statement of facts and the findings of the court, the plaintiff Badger Lumber Company is entitled to judgment establishing its lien for the amount claimed and for the foreclosure and sale of the premises.
The judgment will be reversed, and the case remanded with direction that the trial court render judgment in accordance with the opinion herein expressed.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by the plaintiffs in error to recover damages for loss by fire alleged to have been caused by a locomotive in the operation of the defendant’s railroad. The plaintiffs were tenants in possession of the northeast quarter of section 4, township 6, range 29, in Atchison county, under a written lease for the term of one year from March 1, 1894. The itemized statement of loss set out in plaintiffs’ petition is as follows :
Thirty acres meadow totally destroyed which would have produced two tons per acre, at $7 per ton............... $420 00
Eight and one-third acres meadow which would have produced two tons per acre, one-half total loss, at $7 per ton, $60 — all of said hay then standing and growing upon the aforesaid land..................................... 60 00
Total.............................................. $480 00
The answer of defendant contained : (1) A general denial; (2 ) an allegation that at the date of the alleged damage the locomotive which it is alleged set the fire was equipped with a proper spark-arrester, with the latest approved appliances for the prevention of the escape of sparks and fire therefrom; ( 3 ) allegations of contributory negligence. The plaintiffs, for a reply, filed a general denial. A trial was had before the court and a jury, which resulted in a verdict and judgment for the defendant. The plaintiffs filed their motion for a new trial, which was overruled, and present the case to this court for review.
The first question presented for the consideration of the court arises on the defendant’s motion to dismiss this proceeding for the reason that the motion for a new trial was not filed at the same term of court at which the case was tried and verdict rendered. There is no merit in this contention. The record shows that a trial was had and verdict rendered at the January term, on February 27,1895. “And thereafter in due time, to wit, the 28th day of February, 1895, the plaintiffs filed their motion for a new trial.” Such record affirmatively shows that the motion for a new trial was filed at the same term of court at which the case was tried and verdict rendered.
We are also asked to dismiss the proceedings for the reason that the case-made does not affirmatively show that it contains all the evidence offered on the hearing of the motion for a new trial. The case-made was prepared and served within the time allowed by the court. After the expiration of the time fixed by the court to make and serve a case-made and to suggest amendments thereto, when the parties appeared for the purpose of having the case-made settled, the court, at the request of the plaintiffs, inserted the following amendment: “The above and foregoing is all the evidence offered or received on the' hearing of said motion for a new trial.” It is insisted by the defendant in error that the court had no authority to permit this amendment to the case-made after the expiration of the time allowed within which to make and serve a case-made and to suggest amendments thereto. Defendant in. error, in support of this contention, relies on Mutual Ins. Co. v. Sackett, 5 Kan. App. 665, 48 Pac. 994. The only question presented to the court in that case was as to the sufficiency of the certificate to the case-made. Much of the opinion consists of a discussion of the question as to the privileges and duties of the trial judge» concerning amendments to a case-made, but the' question of amendments to the case-made was not presented to the court for its determination, and the question for determination arose only on the sufficiency of the certificate of the trial judge.
In Eddy v. Weaver, 37 Kan. 548, 15 Pac. 492, it was contended that the case-made did not purport to contain all of the evidence introduced on the trial, and therefore it could not be known whether the findings of fact were sustained by sufficient evidence or not. The case-made did not purport to contain all of the evidence, but the trial judge, at the time of settling and signing it, as a part of his certificate thereto certified “ that the case-made contains all the testimony offered or received on the trial.” So that the real question determined by the court in that case was that the statement that the case-made contains all of the testimony offered or received on the trial should be inserted in the case-made itself and not in the certificate of the judge. There was no question presented as to the power of the trial judge to permit amendments to the case-made at the time of settling the same.
The only case in which the question under consideration has been determined by our supreme court is in Gulf Rld. Co. v. Wilson, 10 Kan. 105. The first paragraph of the syllabus reads :
“Upon the settling of a case for the supreme court, under section 548 of the code (Laws of 1871, ch. 114, § 1), the court or judge may, at the instance of the party seeking to have the case made, when both parties are present, allow additional matters.to be inserted in the case.”
In the opinion, the court said :
“The case so made was properly served upon the plaintiffs, as provided in section 1, chapter 114, Laws of 1871. But when it was served it did not contain anything that'showed that it contained all of the evidence introduced on the trial. When the case was settled and signed by the court, as provided by said section 1, the following words were inserted at the instance of the de fendants, and against the objections of the plaintiffs, to wit: ‘ The foregoing is all the evidence introduced on the trial of this action.’ These words show that all of the evidence introduced on the trial was inserted in the ‘ case-made.’ The court allowed them to be inserted, and the plaintiffs, who were present by counsel, duly excepted thereto at the time. We do not think the court erred in this. If the plaintiffs had suggested any doubts as to whether the new matter inserted was true, or not, the court would undoubtedly, at the request of the plaintiffs, have extended the time for making the case. (Civil Code, § 549.) And the court would also undoubtedly have given the plaintiffs the privilege of suggesting further amendments to the evidence, or to any part of the case-made, if the plaintiffs had so desired it. These provisions, as well as all other provisions of the code, should be construed liberally so as to promote justice.” •
We conclude that the trial court committed no error in permitting the amendment of which complaint is made. The motion to dismiss is overruled.
The plaintiffs in error, for a reversal of the judgment, rely first on the contention that the court erred in refusing to strike out all the testimony of the witness Martin. Martin testified that he was an employee of the defendant railway company as an inspector, inspecting netting and ash-pans ; that on the morning of the day1 on which the fire occurred he inspected the engine alleged to have caused the fire; that it was in good condition and was a large, extension-front, Baldwin engine, .and that the spark-arrester and ash-pans of the engine were in good condition. Witness made a written report of his inspection and had a memorandum of the report in his hand from which he refreshed his memory. Much of the witness’s testimony was given, without any objection being interposed. During the. examination of the witness plaintiffs moved to strike out all his testimony. This motion was overruled, after which the plaintiffs further examined, him, and no other motion was made to strike out his testimony or any part thereof. From an examination of the testimony, we are of the opinion that some of it was incompetent; however, the motion as made was properly overruled.
It is next contended that the court erred in instructing the j ury as follows :
“The plaintiffs’ interest in said land was that of tenants for the season of 1894. The plaintiffs, therefore, cannot recover for any injury to the land itself except so far as-it may have affected the value of the use of the land for the term for which they had leased or rented it; and if you find for the plaintiffs, the measure of their recovery will be the difference between the rental value of the land immediately before and immediately after the injury complained of, from March 1, 1894, to March 1, 1895, not exceeding the sum of $480, the amount claimed in the petition.”
This instruction correctly states the measure of damages under the issues.
It is earnestly contended that a new trial should be awarded on account of the misconduct of the jury and of the prevailing party. There is no competent evidence in the record of misconduct on the part of any of the jurors or of the prevailing party. There were no errors of law occurring at the trial or misconduct proved for which a new trial should be granted. The motion for a new trial was properly overruled.
The judgment is affirmed.
Wells, J., concurring.
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The opinion of the court was delivered by
Schoonover, J.:
This action was commenced in the district court of Harvey county byW. F. Coulson against the St. Louis & San Francisco Railway Company, for damages for injury to plaintiff’s person. On the 28th day of September, 1890, plaintiff was a passenger on defendant’s train passing through Neodesha, Kan. At that place the train stopped for dinner. The negligence is alleged as follows :
“That the agents of defendant announced that the passengers upon the train would have time for dinner at an eating-house situated near the depot in said city and near to the track of the defendant; that plaintiff left the car of the train of defendant in which he was a passenger, stepped upon the platform, and walking over and upon the same, passed into the dining-room or eating-house immediately adjacent thereto; that after finishing his meal he returned to the platform of defendant, which platform was constructed of wood and in part with planks or boards of about two inches in thickness and about sis inches in width, which planks were placed parallel and adjoining to and on a level with the track of the defendant; said platform was used by defendant in the discharge of its duties as a common carrier ; that it was customary for passengers on trains of defendant to walk upon said platform alongside of the track and cars of the defendant until notified by the agents of defendant in charge of the passenger-cars of train that such train was about to start; that said platform had been carelessly and negligently constructed ; that it had been constructed out of unsuitable planks, and was on the day and date aforesaid out of repair; that some of the boards or planks of said platform were badly cupped, and that the nails were drawn and the boards warped, thereby making said platform uneven and rough;. that this plaintiff was, with other passengers, walking upon said platform awaiting the signal of the agents of said defendant to get aboard said train ; that, without any notice being given, the train upon which plaintiff had been and was a passenger began moving ; that plaintiff attempted to get to the steps of one of the cars of said train on which he had been and was a passenger, but, by reason of' the defective platform and the careless and negligent character of its construction, and by reason of the careless and negligent manner of keeping said platform in repair, and by reason of the carelessness and negligence of the defendant in the construction of said platform and in keeping the same in repair, plaintiff stumbled upon said platform and fell, and by reason of said platform being in such condition as aforesaid, and by reason of the track of defendant being on a level with said platform as aforesaid, and by reason of various other acts of carelessness and negligence done, suffered and permitted by the defendant, the hand of the plaintiff came over the track of said defendant and the wheel of one of the cars of said train of defendant passed upon and over the said hand of plaintiff and crushed and mangled said hand, it being the right hand of this plaintiff, thereby lacerating, bruising and injuring said hand so that amputation became necessary.”
The defendant answered by general denial and alleged contributory negligence. The case was tried to a jury, and resulted in a verdict and judgment for plaintiff below. The defendant brings the case here. It is contended by plaintiff in error that the trial court should have sustained the demurrer to the evidence, or directed a verdict for defendant, for the reason that Coulson was grossly negligent and careless, and that the damage he suffered was attributable directly to his own negligence.
It may be stated that the depot is on one side of the track and the eating-house on the other. The train stopped twenty-five minutes for dinner. Coulson, with other passengers, got off the train on the side on which the eating-house was located. He finished his lunch in about fifteen minutes, walked through a car, then out and upon the platform on the side of the train where the depot was located. Here he was informed by the conductor that the train would start in three or four minutes. He walked back to the platform on the side of the train on which the eating-house was located. This platform was 100 to 150 feet in length, and the planks composing it were placed lengthwise with the track. The boards immediately adjacent to the railroad-track in the platform in front of the eating-house had upon them oil and grease which had dropped from the car-trucks, and a number of them had warped so that the ends were sticking up two or three inches at several places near the track. Coulson was standing five or six feet distant from the end of the passenger-coach. He started to the coach, caught his foot in the end of one of the warped planks and fell, and in falling threw his right hand out to protect himself. His hand happened to strike the rail immediately in front of one of the car-wheels. Simultaneously with the fall the train began to move, the wheel passing over the hand and crushing it. It is contended that Coulson was negligent in not remaining on the car after returning from luncheon. Counsel in their brief say :
“After Coulson had gone.from the train to the eating-house,, eaten a luncheon, and returned to the train, the eating-house platform had served its full purpose. The obligation of the company to provide a safe passage for Coulson from the train to the eating-house and return had been fulfilled and the company is not liable for any injury resulting to Coulson afterward by his using said eating-house platform for any purpose not necessarily involved in or connected with his journey. He had no business connected with or pertaining to his journey that required his returning to the eating-house platform. The company had not been paid to protect him or to provide safe platforms for him to use for any other purpose than to transfer him from one point on its line to another. The contract required a safe carriage from Springfield, Mo., to Beaumont, Kan, and doubtless an opportunity to disembark from the train at Neodesha, and to pass from the train to the eating-house and back. These requirements had been duly observed by the company when Coulson returned to the train after eating. His departure from the train afterward was outside and beyond any contract existing between him and the company. His relationship to the company as a passenger for the time being ceased. He says that he went over to the eating-house platform in search of a friend, but the company did not contract to furnish him a safe platform over which to roam in search of friends. His stroll over this platform had no connection with the company’s contract, but was an independent venture of his own, made at his own risk.”
We are asked to declare as a matter of law that the company’s liability and obligation under its contract ceased after Coulson got his lunch and returned to his seat in the car. We cannot consent to this doctrine. The train had stopped for dinner. The passengers were invited to this platform. It was maintained for their safety and convenience, and they were expected to get on and off. This was involved in and connected with the regular passenger service of the road. The act of Coulson in leaving the train at this particular point, after he had returned from his luncheon, is not sufficient to justify this court in declaring as a matter of law that he was negligent, or that the obligation of the company to provide safe passage for him had been fulfilled, or that his relationship as a passenger to the company had for the time ceased.
It is further contended that Coulson was negligent “in deciding to attempt and in making the attempt to board a moving train on the wrong and unusual side, away from conductor, trainmen, and signals, and from a platform in bad condition, which”he had seen and noticed a number of times before, and which he could then easily see and did see, it being at noon when the accident occurred.” Coulson boarded the train from the same side and from the same platform where he had been invited to get off. The jury, in answer to special questions 9 and 10, found :
“9. Is it not a fact that the train was in motion at the time plaintiff fell with his hand under it ? A. No.
“10. If you answer the last question in the negative, state how long it was after so falling under the train that the train did move. A. Simultaneously with the fall.”
These findings are supported by the evidence, and the claim that he attempted to board a moving train will not be further considered.
It is unnecessary to comment further on the evidence. The facts are not so undisputed or so definitely found by the jury that only one conclusion can reasonably be drawn. Clearly, the question whether negligence is shown in this case was for the jury. The instructions of the trial court in submitting the question of negligence were fair, we may say favorable, to the railroad company. The verdict appears to be free from prejudice. . It has been approved by the trial court, and will not be disturbed. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
This action was commenced by J. K. Sellers against J. B. Remington, before a justice of the peace, to recover $250, for services rendered as agent in the sale of real property. The case was appealed to the district court of Miami county, tried by the court without a jury, and a judgment rendered in favor of the plaintiff below, J. K. Sellers, for the amount claimed. The finding and judgment of the trial court are fully sustained by the evidence.
It is contended, however, that the contract for the sale of the land entered into by J. B. Remington and Samuel R. Stillman, the proposed purchaser, included in the description of the real estate the homestead of Remington, and that the wife of Remington did not sign the contract; that the contract is void, and that, there could be no sale. That a contract made by the husband, without the consent of the wife, to convey the homestead, is void, is settled in this state. (Thimes v. Stumpff, 33 Kan. 53, 5 Pac. 431; Hodges v. Farnham, 49 id. 777, 31 Pac. 606.)
This action is on a separate and independent contract for personal services as agent of J. B. Remington, and when the sale was completed, the agent, Sellers, was entitled to his commission, and the court so found. If Remington had no authority to sell the land, it would not release him from his obligation to his agent. The agent acting in good faith is not responsible for the failure of title. (Lockwood v. Halsey, 41 Kan. 166, 21 Pac. 98.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by M. E. Dixon to procure, by writ of assistance, possession of certain mortgaged property sold under a decree of the court. The record discloses that on the 20th day of February, 1880, Simon Motz executed to Joseph B. Eldridge a mortgage on réal property situated in Ellis county to secure the payment of his two promissory notes of that date for $1000 each, due two years after date, and other notes. Before maturity', the mortgagee sold and assigned the notes to A. R. Henry. On the 22d day of December, 1894, Henry instituted suit in the district court for the foreclosure of the mortgage, and for the sale of the property and the application of the proceeds to the payment of the amount due. Simon and Bertha Motz, Eldridge and others were made parties defendant. The Motzes filed an answer, but all other defendants made default. On February 19, 1896, prior to the trial of the case in the district court, an agreement in writing was made between the plaintiff Henry and the defendants, Simon and Bertha Motz and Eldridge, representing himself and other defendants, as follows :
“It is agreed by and between the plaintiff and Simon Motz and Bertha Motz, defendants in the above-entitled action, and other persons interested in the notes and mortgage set out and referred to in plaintiff’s petition for the amount of $7000, the plaintiff and said parties in interest being represented by A. J. Bryant and J. B. Eldridge, and the said defendants Simon Motz and Bertha Motz being represented by the said Simon Motz and their attorneys, that the above-entitled case shall be and the same is settled as to said defendants upon the following terms and conditions, to wit: The said parties in interest and plaintiff agree to pay or cause to be paid to the said Simon Motz the sum of $250, and the said Simon Motz and Bertha Motz shall at the same time execute a good and sufficient special warranty deed to the property described in the said mortgage set out and described in plaintiff’s petition, in consideration of said sum of $250. It is further agreed that the plaintiff may take judgment for the amount of the notes set out in plaintiff’s petition and for costs of this action, and a judgment and decree foreclosing said mortgage and cutting off the equity of redemption of each and all of the other defendants in said action and declaring the plaintiff’s mortgage a first and prior lien on said property. The receipt of said deed and of said sum of $250 is hereby acknowledged by the parties hereto, this 19th day of February, a. d. 1896.”
The deed was executed and delivered, the $250 paid, and judgment rendered according to the terms of the stipulation. The plaintiff prosecuted his action to a final decree, and the court rendered judgment that the mortgage set forth was a first lien on the premises therein described, that the mortgaged premises be sold by the sheriff, according to law, in default of payment, and that the proceeds of the sale be applied, first, to the payment of the costs, and then to the payment of plaintiff’s judgment theretofore rendered. It was further ordered and adjudged, that each and all of the defendants, and all persons claiming orto claim through or under them or either of them, be barred and foreclosed of all right, title, interest, claim and equity of redemption in and to the premises, and each and every part and parcel thereof, from and after the sale ; and, for any balance of said judgment remaining unpaid after such proceeds should be exhausted, it was ordered that execution issue against the property and effects of the defendant Simon Motz. The mortgaged premises were sold by the sheriff according to law, the sale was confirmed, and a deed was executed February 13, 1897, to the purchaser, A. R. Henry.
Afterward Henry, by a deed of warranty, on the 7th day of January, 1898, conveyed the premises in question to M. E. Dixon. The Motzes remained in possession and refused to surrender the premises to Dixon. Thereupon Dixon applied, by motion, to the court for a writ of assistance to place him in possession, a trial was had, and the court found that the applicant, Dixon, was entitled to the writ, and ordered and adjudged that the writ issue as prayed for. The defendants Simon and Bertha Motz filed their motion for a new trial, which was overruled, and present the case to this court for review.
The plaintiffs in error allege that the court erred in granting the writ of assistance. They contend that they were occupying the premises in dispute with the consent of Henry, the purchaser at the sheriff’s sale, and that at the time of the execution of the written agreement Henry agreed with them that they should remain in the possession of the premises until the sheriff’s deed had been executed and until such time as a purchaser for the premises in question should be found ; that they held possession under such agreement for one year after the execution of the sheriff’s deed ; and that during such time they made valuable improvements on the premises. All of this was denied by Dixon. The questions of fact were submitted to the court on oral testimony, and findings made which were against the contention of plaintiffs in error. The testimony was conflicting. The findings of the trial court on conflicting oral evidence as to questions of fact are conclusive. This question has been passed on by our supreme court and this court so often that the citation of authorities is unnecessary.
The plaintiffs in error further contend that the court should not have granted the writ of assistance in this case for the reason that Dixon was not a party to the record and obtained no interest in the property until one year or more after the same was purchased by Henry. The writ of assistance is an effective and appropriate process to issue from a court of equity to place a purchaser of mortgaged premises under its decree in possession after he has received the sheriff’s deed, as against parties who are bound by the decree and who refuse to surrender possession pursuant to its direction. The power to issue the writ results from the principle that the jurisdiction of the court to enforce its decree is coextensive with its jurisdiction to determine the rights of the parties. It is the constant purpose of courts to do justice, not merely by declaring rights, but by affording a remedy; the court should not leave a party to another time or tribunal to enforce a right which it has established. When a court decrees the sale of property, it has the authority to perfect the transaction by giving the possession with the deed. It is well settled that a court of equity has jurisdiction to carry into effect its own orders, decrees, and judgments which remain unreversed, when the subject-matter and the parties are the same. The writ of assistance can issue against parties bound by the decree. Under this principle, Henry could undoubtedly have presented his motion for the writ to carry into effect the decrees rendered in his favor against the Motzes, and it is equally clear that his assignee, or privy in estate, Dixon, has a right to the same relief that Henry could have asserted. On this subject, it is said in Story’s Equity Pleadings, paragraph 429 :
“Sometimes, such a bill is exhibited by a person who was not a party, or who does not claim under any party to the original decree ; but who claims in a similar interest, or who is unable to obtain the determination of his own rights till the decree is carried into execution. Or it may be brought by or against any person claiming as assignee of a party to the decree.’’
In Pingrey on Mortgages, sections 1965, 1966, the rule is thus stated :
“ The purchaser may be put into possession by the court that rendered the decree of sale, though delivery of possession is not a part of the decree. Having obtained lawful jurisdiction of the case, and having decided it, the delivery of possession by the court is coextensive with the jurisdiction over the subject-matter. . . . The writ of assistance follows after the refusal to obey the order, and will be issued against any person in possession who has been made a party to the suit not holding by title paramount. The assignee of the purchaser’s bid stands in his place as ¡to the remedy for possession, as also does the vendee of the purchaser. One coming into possession pendente lite would be entitled, it would seem, to notice of the motion for an order for possession. On refusal to obey the order then the writ of assistance issues.” (See also Root v. Woolworth, 150 U. S. 400, 14 Sup. Ct. 136.)
Dixon in the present case occupies that position. He cannot, any more than Henry, to whose right he succeeded, be put to the necessity of instituting an original independent suit against Motz and relitigating the same questions which were involved in the foreclosure proceeding. 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
Wells, J.:
On October .15, 1894, at about seven o’clock a. m., there was set into the Kansas City stockyards a train of twenty-six cars of stock, one car of which was taken on at Parsons and has nothing to do with the controversy in this case. The first three cars contained seventy-four mixed cattle of inferior grade belonging to Hawkins, the defendant in error. The next nineteen cars held 475 steers of a better quality, belonging to Plawkins, and the three other cars held thirty head each, all of which were the culls belonging to the party of whom Hawkins, bought the stock, except sixteen head of Hawkins’s better grade which were shipped in a car filled up with culls.
Hawkins accompanied his cattle, and they were consigned to the commission firm of McDonald, Crowley & Farmer, at the Kansas City stock-yards. The culls belonging to the Dulls and the sixteen head of Hawkins’s better grade of cattle were consigned to Godair, Harding & Go., of Chicago, with privilege of selling them in Kansas City. The first car unloaded was evidently the one containing the sixteen steers of the better grade belonging to Hawkins and fourteen of the culls, and these were penned separately. The next two cars unloaded were the remaining sixty culls, and were mixed, either with seventy-five of Hawkins’s better-grade cattle, as claimed by the defendant, or with the 475, as claimed by the plaintiff. The seventy-four mixed cattle at the head of the train were kept separate, and were sold on the morning of arrival, so they are virtually eliminated from the case.
The plaintiff Hawkins claimed that the cattle were mixed through the negligence of the defendant company, and this action was brought to recover the damages resulting therefrom. The matter was tried to the court and a jury. The jury found a general verdict for the plaintiff, and assessed his damages at $1200, and judgment was rendered by the court accordingly'. To reverse this judgment the case is brought to this court.
The first assignment of error is that the court refused at the close of the evidence to give an instruction to the jury, as asked for, to find a verdict for the defendant. This raises tlie question, Was there sufficient evidence on which to found a verdict for the plaintiff ? In order to justify this verdict, it must appear from the evidence that the mixing of the cattle was caused by the negligence of the defendant. The undisputed evidence in the case establishes the following facts : Upon the arrival of the train at the stockyards it was met by J. B. Crowley, a representative of the firm to whom the cattle were consigned, who got upon the top of the car ‘ upon which the plaintiff was standing, as soon as the train stopped. Hawkins then told him he had twenty-two cars of cattle, nineteen loads of steers, and three loads of cows, bulls and stags mixed, and said: “You keep the three loads of cattle separate, but the other nineteen loads it doesn’t make any difference.” After some further direction was given Crowley, Hawkins went to breakfast, and when he returned about an hour later the cattle were yarded.
In answer to the question, “Whom did you leave there in charge of it to see that the cattle were unloaded,” Hawkins answered, “ Well, I left Mr. Crowley there; I didn’t leave any one.” Taking all the evidence on that subject together, there can be no doubt that Crowley was authorized by Hawkins, aside from the fact that he represented the consignee of Hawkins’s stock, to look after the unloading and penning of them in his absence, and whatever he said or did would have the same effect as if done by Hawkins in person.
The next question is, What caused the mixing of the cattle ? R. PI. Smith, foreman of the stock-yards, testified on this subject, in substance, that he ran the first car single, then turned the second car into the alley and was going to keep it separate, when Crowley came up and said : “Why, they are all our cattle, and why not let five car-loads go together ?” Frank De-IPass then said : “If the man wants to run them all together, they are all his cattle ; why not run them together in five-car bunches ?” “Crowley said he wanted them run together, so we fan them that way.” Frank DeHass, foreman, testified on this subject, in substance, that he was assisting Smith in unloading and yarding this stock ; that they had yarded the first load separately, and, when the second load was started away to be run separately by Smith and himself, Crowley came up and said : “These are my cattle and we want them run together,” and so they were run in five-car lots, but would have been kept separate but for Crowley ; and that under the rules commission men had control of the stock. Timothy Flahive testified that Crowley told him they all belonged to him and would all go together. The only other witness who testified on this subject was J. B. Crowley, who testified for the plaintiff in rebuttal as follows: “I came up there, and they started to lot out a chute, and I spoke up and said, ‘ That car number do n’t correspond.’ R. H. Smith threw the gate to and said, ‘What about it ? ’ I said, ‘I will look,’ and I looked at the cattle. ‘I don’t know,’ I said ; ‘they look like the same kind of cattle.’ Frank DeHass then spoke up and said, ‘They look like the same kind of cattle. They are the same brand of cattle; better run them together.’ I said ‘Let them go,’ and the cattle were run together.” This was all the evidence upon that subject, and there is nothing therein that would justify the jury in finding that the cattle would have been mixed had it not been for the action of J. B. Crowley. The peremptory instruction should have been given.
The next error complained of is in giving instruction No. 5, as follows :
“In arriving at the amount of damages, if any, sustained by the plaintiff by reason of the negligence of said defendant, as hereinbefore stated (if you find it was so negligent), the jury may take into consideration all consequences proximately resulting from such negligence, and if you find from the evidence that plaintiff’s said cattle or any part thereof were negligently mixed by said defendant, its agents, servants, and employees, with an inferior lot of cattle belonging to other persons, and that in attempting to separate such cattle from his, plaintiff’s cattle, or such number thereof as you find were mixed with the cattle of others, became so heated and excited, without fault on the part of said plaintiff, that they would not take food or water, as they otherwise should have done, and were for such reason in an unmarketable and unsalable condition on said 15th day of October, 1894, or if, when such cattle could first be offered for sale, the market for that day was practically over, then the plaintiff had the right to hold such cattle over for the market for the succeeding day, and the cost of extra food, if any, the shrinkage, if any,'occasioned by the attempt to separate such cattle, and the holding of them over, the decline in the market value thereof, if any, the deteriorating effect, if any, upon plaintiff’s said cattle, by leaving such inferior cattle among them as it was impossible .to separate there from, if you find there were any such, are all elements of damage to be considered by the jury in arriving at their verdict herein. But in no event can the plaintiff recover a verdict for an amount greater than the difference between the market value of said cattle on the market at the Kansas City stock-yards on said October 15, 1894, had the defendant not been negligent in relation thereto, and what said plaintiff afterward received therefor when he did sell them, whether at Kansas City or elsewhere, less all necessary expenses for feed and cars and freight to another market made necessary by the negligent acts of said defendant.”
This tells the jury, in substance, that if they find for the plaintiff, and further find that by reason of said negligence the cattle could not reasonably be marketed on the 15th, then the plaintiff had a right to hold them over for the market of the 16th, and the measure of the plaintiff’s damages would be the difference between their market value on the 15th, if the negligence had not occurred, and their market value when they could be first reasonably put on the market, in the condition they then were, in addition to the extra expense rendered necessary by such negligence ; but in no event could he recover a greater amount than the damages he actually sustained. This is the correct measure of the damages, with the exception of extra food, for which no charge is made in the petition, except for that used on the 15th, when plaintiff admitted they would have had to be fed anyway.
The next assignment of error is in refusing to give instructions 4, 5, 8, 9, and 10, as asked by defendant. No. 4 was properly refused, as it excluded proper elements of damage. No. 5 should have been given, as the plaintiff testified that he always fed before selling, and feeding on the 15th would have been an item of expense if the cattle had not been mixed. No. 8 should have been given, as the freight to St. Louis was not an element of damage and should only have been considered in arriving at the amount of loss actually sustained. The ninth and tenth instructions-do not give the law correctly, as applied to this case, and these were properly refused.
The fourth assignment of error is that the verdict was excessive. We find from the record that is before us-that this.is true. Four hundred and ninety-one head of cattle, weighing 900 pounds each, at $2.40 per 100 pounds, would amount to $10,605.60; this is the largest amount with which defendant could be charged. As to what the cattle actually brought i-n St. Louis, there is no concise statement in the record. An account of sales was identified and referred to, but the substance of it is not given and no copy appears. . The evidence shows that the cattle averaged in St. Louis 865 pounds each, and sold for $2.35 per 100 pounds ; this would amount to $9,980.80. Deduct from this $387.70, the admitted expense to St. Louis, and $32.63, one-half the feed bill in Kansas City, (and these are the only items of expense for which we can find any evidence,) this would leave the net proceeds of the cattle $9,560.47. From these figures it would appear that the largest amount for which a judgment could be given under the. evidence is $1045.13. We are clearly of the opinion that the trial court erred.
The judgment of the court below will be reversed and a new trial awarded.
MoElkoy, J, concurring.
|
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The opinion of the court was delivered by
Schoonover, J.:
The plaintiff in error asks a reversal of a judgment awarding damages to the defendant in error, by the district court of Labette county, for right of way. The serious question involved is in the seventh question submitted to the jury and the answer thereto, which are as follows :
‘ ‘ Ques. 7. Do you allow anything for increased haz ard to animals or stock caused by being frightened by defendant’s train of cars, and, if so, do you include that in your award? Ans. Yes.”
It has been repeatedly held by our supreme court that this item of damages is speculative and remote. The amount allowed by the jury for increased hazard to the animals or stock of defendant in error, caused by being frightened by the trains of plaintiff in error, cannot be ascertained, but whatever the amount.may be it is included in the award. The question is fully discussed in the following cases : A. & D. Rly. Co. v. Lyon, 24 Kan. 745; St. L. K. & S. Rly. Co. v. Hammers, 51 id. 127, 32 Pac. 922, and cases there cited.
The judgment of the district court is reversed and the case remanded for a new trial.
|
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The opinion of the court was delivered by
Mahan, P. J.:
Under his first assignment of error, the plaintiff has not complied with the rule of this court in setting out the evidence rejected by the court below, nor is any mention made of such evidence in the argument contained in the brief. We will not give it any consideration.
Under the second assignment of error, plaintiff contends that there was sufficient evidence to go to the jury upon the contention that there was a forfeiture and determination of the lease by a reentry for nonpayment of rent. It is well settled that no forfeiture can be declared for non-payment of rent without a demand therefor, and it is admitted that no such demand was made. There was an attempt to reenter, but it was without lawful authority and resulted in nothing. The supreme court decided, in Kellogg v. Lewis, 28 Kan. 535, that a justice has no equitable jurisdiction or power and can only determine the rights of parties as they appear at law, and that the jurisdiction of the district court on appeal is the same as that of the justice, the title to the premises not being in dispute ; hence, the district court has no jurisdiction to decree a forfeiture in such a case.
The next contention is that there was sufficient evidence to go to the jury on the claim that there was an election on the part of the defendants not to avail themselves of the extensions provided for in the lease. It is not put squarely on this ground by counsel, but this is the legal effect of the contention. It is doubtless the law that such election may be exercised before the last day of the term expressed in the lease. There was evidence that ought to have been submitted to the jury that the defendants had elected to terminate the lease on the 1st day of August, or rather not to take advantage of the extension provided for. There was evidence tending to show that the plaintiff had relied on this election, to the knowl edge of the. defendants. Under proper instructions, the case should have been submitted to the jury to determine whether the defendants had so elected not to avail themselves of the privilege of the extension. Counsel for plaintiff in error contends, under this assignment, that it was necessary that the lessees give due notice of their election before the termination of the six months’ term. There was no requirement of notice in the contract, and it is well settled that where none is required, none need be given. Nevertheless, it was the privilege of the landlord to call on the defendants to exercise their option, so that he might be advised and shape his plans accordingly, and he might rely on such election.
Because of this exclusion of evidence, the judgment of the district court must be reversed, with instructions to award to the plaintiff a new trial.
|
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