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The opinion of the court was delivered by
Wedell, J.:
Plaintiff instituted an action against Hal R. Hamil and the St. Louis and San Francisco Railway Company, to recover damages for personal injuries and property damage. The defendant Hamil is not involved in this appeal. The other defendant appeals from an order overruling its general demurrer to plaintiff’s petition. The material portion of the petition, in substance, alleged:
On December 2, 1952, plaintiff was traveling in a westerly direction on East Thirteenth street in the city of Wichita to a point where the St. Louis and San Francisco Railway Company tracks crossed that street; she stopped her car in the north lane of traffic in response to an electric or mechanical signal device which was giving warning of an approaching train; a number of cars had stopped ahead of her in the same lane; the warning device was not operating correctly but she did not know the reason therefor as it was under the exclusive control of the railway company; she stopped her car at about the hour of 7:15 a. m.; when her car came to a standstill there was no automobile immediately to the rear of her car; shortly thereafter the defendant Hamil carelessly and negligently drove into the rear of her car; Hamil was guilty of negligence in that he followed her car too closely and at an excessive speed; he failed to obey the warning device which was operating at the intersection; he failed to keep a lookout in front of him; he failed to observe the condition of the highway and he drove his car into the rear of her car in utter disregard of such warning signal, resulting in severe personal injuries and damage to her car.
The petition further, in substance, alleged:
The weather was cold, cloudy and foggy on the day in question; there had been a severe snowstorm and the streets were icy and slick; insofar as plaintiff knew no train crossed the intersection at the time of her injury; the warning signal continued to operate until approximately 8:00 a. m.; plaintiff was informed and believed the device is designed to give warning for only a few minutes before a train crosses Thirteenth street and to cease operating immediately after a train has cleared the crossing; tire negligence of defendants was the direct and proximate cause of the collision.
Appellee frankly states she relies on the acts of negligence charged and not on the doctrine of res ipsa loquitur.
Appellant first asserts the only alleged improper a.ct with which it is charged is that the warning device was not operating correctly at said time and place.
It appears the fact appellee was required to stop by an improperly operating warning signal is the only negligent act with which appellant is charged. Appellant asserts that is not an averment of fact but a conclusion. Although a motion to make the petition definite and certain was lodged and overruled that particular allegation was not motioned. Under varying pleadings it has been held an allegation not challenged by motion is admitted for purposes of a demurrer even though it may be in the nature of a conclusion of fact. (Brock v. State Highway Comm., 157 Kan. 252, 258, 139 P. 2d 811; Rogers v. Beiderwell, 175 Kan. 223, 262 P. 2d 814.) In any event we find nothing particularly wrong with the allegation as a statement of fact. However, whether that allegation constitutes a cause of action against appellant is the question to be determined in the light of the entire petition.
Appellees counsel concedes he has been unable to find a case factually in point. Neither have we and appellant has cited none. The theory on which appellee relies is that the petition charges acts which disclose the injury resulted from the concurrent negligence of joint tortfeasors and, therefore, the question whether the acts of one or the other were the proximate cause of the injury is immaterial, citing Sager v. Railway Co., 70 Kan. 504, 79 Pac. 132; Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590; Duran v. Mission Mortuary, 174 Kan. 565, 258 P. 2d 241; Polzin v. National Cooperative Refinery Ass’n, 175 Kan. 531, 266 P. 2d 293; and decisions discussed in the above cases.
Appellee also directs attention to G. S. 1949, 8-564 which requires vehicles to stop at a railroad grade crossing in response to an electric or mechanical signal device which warns of an immediately approaching train.
On the other hand appellant asserts:
(1) Under the allegations of this petition the only alleged wrongful act on its part does not constitute actionable negligence; that act at most furnished only a condition, or gave rise to an occasion, in which appellee was required to stop; it was not the cause of the injury; appellee was not injured by the giving of the signal or by the absence of a train; and (2) if on the other hand it is held the sounding of the signal constituted actionable negligence that act and the acts of Hamil were distinct, successive and unrelated; the petition discloses on its face the negligent acts of Hamil were the efficient and responsible cause of the injuries and appellant’s negligence should be disregarded as too remote.
Among various cases cited it relies primarily on the following in support of its two contentions: Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338; Fraser v. Railway Co., 101 Kan. 122, 165 Pac. 831; Larnbel v. City of Florence, 115 Kan. 111, 222 Pac. 64; Whitcomb v. Atchison, T. & S. F. Rly. Co., 128 Kan. 749, 280 Pac. 900; Smith v. Mead Construction Co., 129 Kan. 229, 282 Pac. 708; Cruzan v. Grace, 165 Kan. 638, 198 P. 2d 154; Cotter v. Freeto, 166 Kan. 23, 199 P. 2d 484, in which the principal facts in many of the above cases are analyzed; and Shideler v. Habiger, 172 Kan. 718, 243 P. 2d 211.
Appellant concedes these cases are not directly in point factually but earnestly urges they are illustrative in character of the principles involved which should be held controlling in the instant case.
We shall not undertake to repeat the facts upon which the numerous cases cited by the parties were based but refer to the opinions for a full statement thereof. We reaffirm the general rule pertaining to liability for concurrent negligence of joint tortfeasors as stated in cases cited by appellee. The question here is whether that rule is applicable and controlling under the facts pleaded.
A reading of the cases relied on by appellee will readily disclose the facts there involved are not remotely analogous to those in the instant case. In those cases the concurrent negligent acts of the tortfeasors were operative acts and they joined directly in producing the injury. Each act, therefore, constituted actionable negligence.
Does the sounding of a warning signal at a railroad crossing in itself constitute actionable negligence? Obviously not and it is not contended it did in this case. Such a signal is designed to warn and prevent injury from approaching cars or trains. The signal injured no one. Appellee was not struck by a car or train by reason of the signal. The real complaint is the warning signal was not operating correctly when no train had stopped, or was approaching. Clearly, however, the absence of the train did not injure appellee or constitute actionable negligence.
It is a fundamental rule in actions for tort that negligence which does not result in injury forms no basis for an action for damages. (Railway Co., v. Columbia, supra; Whitcomb v. Atchison, T. & S. F. Rly. Co., supra; Richards v. Chicago, R. I. & P. Rly. Co., 157 Kan. 378, 139 P. 2d 427.)
Appellee cites no statute requiring an electrical or mechanical signal device or a statute requiring such a device, if employed, to be kept in perfect working order. For present purposes we shall, however, assume the statute, G. S. 1949, 8-564, which requires a vehicle to stop in response to such a signal, contemplates the signal will be operating properly in order to accomplish its intended purpose. Rut negligence in violation of a statute is actionable only when the injury complained of is such an injury as the statute was designed to prevent. (Whitcomb v. Atchison, T. & S. F. Rly. Co., supra, p. 751-752; Cotter v. Freeto, supra, p. 28-29.)
The statute pertaining to a signal which requires a vehicle to stop when the signal is sounded was designed to protect travelers from injury by approaching cars or trains and not from injury resulting from a collision between a vehicle which had stopped in obedience to the signal and another vehicle which acted in utter disregard of the signal.
It, therefore, appears the failure of the signal to operate properly at the time was not actionable negligence. Moreover, negligence, to be actionable, must result in damages which were, or reasonably might have been, foreseen by a person of ordinary intelligence and prudence. (Railway Co. v. Columbia, supra, p. 397-398; Rowell v. City of Wichita, supra, p. 303.) In the Shideler case, supra, it was held:
. “Natural and probable consequences are those which human foresight can anticipate because they happen so frequently they may be expected to recur.
“While it is not a necessary element of negligence that one charged with negligence should have been able to anticipate the precise injury sustained, a person is not charged with all possible consequences of his negligent acts. He is not responsible for a consequence which is merely possible according to occasional experience, but only for those consequences which are probable according to ordinary and usual experience.” (Syl. ¶ 3, 4.)
To the same effect, also, is Rowell v. City of Wichita, supra.
We think it cannot fairly be said, from the allegations of the instant petition, that appellant had probable cause to believe or should have anticipated that Hamil, or some other person, would negligently run into the rear of appellee’s car in utter disregard of the warning signal. The petition expressly alleged Hamil did so negligently. Surely appellant was not required to anticipate such negligence, absent any allegation of fact to indicate it should have anticipated it.
In'appellee’s reliance on the rule of concurrent negligence of joint tortfeasors she assumes the sounding of the signal when no train was approaching was actionable negligence and, therefore, was an efficient cause of the collision. We have indicated the assumption is unwarranted.
An approach of the problem from another angle may be helpful. Could it reasonably be contended appellant would be liable in the event a similar collision of vehicles had occurred if a train had actually been approaching at the time the signal sounded? We do not think so. It is true the petition alleged the signal continued to operate after the collision. Manifestly that fact was in nowise material- where, as here, it is admitted the accident occurred shortly after appellee’s car had stopped. The word “shortly” is defined in Webster’s New International Dictionary, 2d. ed., unabridged, as, “In a short time; soon; presently; quickly.” The petition further clearly indicates the collision happened very shortly after appellee stopped. It expressly alleged no vehicle was immediately to her rear when she stopped but that the defendant, Hamil, negligently and carelessly followed her car too closely and without regard to the excessive speed at which he was traveling.
We, therefore, do not have before us a case in which a long continued blocking of a railroad crossing or other long detainment of appellee was, or is alleged to have been, a factor in producing or contributing to the injuries she sustained. Nor is it alleged that at the time of this collision traffic had been delayed over a period of time in violation of any statute or city ordinance. The most that can be said in favor of the instant petition, as against appellant, is that the signal which was not operating properly caused her to stop and she was struck shortly thereafter by Hamil’s car which was operated negligently and in utter disregard of the signal. Under the material facts alleged the circumstances did not differ substantially, if any, from those which would exist if a train were approaching and the signal operated perfectly. In the light of all the allegations of this petition, which are admitted on demurrer, we would not be justified in concluding the petition alleged facts which disclosed that failure of the signal to operate properly constituted actionable negligence, based on an efficient legal cause without which the injury would not have occurred.
Whether alleged negligence is the cause, or one of the efficient and responsible causes, of an injury is ordinarily a jury question. Where, however, the evidence is uncontradicted or the material facts are fully pleaded and admitted by demurrer the question is one of law for the court. (Lambel v. City of Florence, Whitcomb v. Atchison, T. & S. F. Rly. Co., Richards v. Chicago, R. I. & P. Rly. Co., Cruzan v. Grace, Cotter v. Freeto, p. 28, omnia supra.) Here it appears on the face of the petition the only actionable negligence was that of the defendant, Hamil.
The order overruling the appellant’s demurrer to the petition is reversed.
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The opinion of the court was delivered by
Price, J.:
This is an action to reform a written cattle-feeding contract to conform to an alleged prior oral agreement between the parties, and to recover judgment for an alleged balance due under the contract as reformed. As a basis for reformation plaintiff alleges fraud and misrepresentation by defendant’s agent in inducing him to sign the contract.
Defendant has appealed from an order overruling its demurrer to the second amended petition, hereinafter referred to as the petition.
Plaintiff is a resident of Wabaunsee County and is engaged in the handling and feeding of cattle.
Defendant is a Virginia corporation, and its business address is in New York City.
Due to the nature of the controversy, the question involved, and the difficulty in summarizing accurately the allegations of the petition, that pleading, although lengthy, is set out in full:
“3. That on or about the 30th day of August, 1951, Alex McKay-Smith, the agent, servant, and employee of the defendant, then and there acting within the scope of his agency and employment, requested the plaintiff to feed and winter cattle for the defendant in the vicinity of Alma, Kansas. That the said Alex McKay-Smith on or about August 30, 1951, while conversing with the plaintiff in front of the plaintiff’s home in Alma, Kansas, orally stated to the plaintiff that his employer would pay up to 340 per pound gained for the wintering of steers. That said Alex McKay-Smith then requested that the plaintiff give him (Alex McKay-Smith) a piece of paper to write on. The plaintiff then handed to the said Alex McKay-Smith a note book in which Alex McKay-Smith wrote in his own handwriting as follows:
‘Alex McKay-Smith, White Post, Va.
Te. Boyce 271J1
Spay heifers
stopover <'
Norfolk and Western Ry.
Yearlings up to 34
Calves up to 35.5’
“That on or about October 16, 1951, the day said steers arrived at the railroad siding at McFarland, Kansas, Geza E. Neuman de Vegvar, arrived in Alma, Kansas, and conversed with the plaintiff with reference to the contract between the plaintiff and the defendant corporation, and the sum to be paid the plaintiff for feeding said steers. Prior to the signing of the written contract hereinafter referred to, the said Geza E. Neuman de Vegvar orally stated numerous times that the defendant corporation would pay the plaintiff 340 per pound gained for wintering and feeding said steers. Said statements by the said Geza E. Neuman de Vegvar were made by him at the railroad siding at McFarland, Kansas, and in the office of the plaintiff at Alma, Kansas. When the said Geza E. Neuman de Vegvar made said statements with reference to the compensation to be paid to the plaintiff for wintering said steers, plaintiff stated to the said Geza E. Neuman de Vegvar that he would feed and winter said steers for 340 jrer pound gained by said steers during the time said steers were under his custody and control.
“4. That while the above referred to oral agreement was in full force and effect and on the 16th day of October, 1951, Geza E. Neuman de Vegvar, Vice-President of said defendant corporation, called upon the plaintiff at his office in Alma, Kansas, and stated to plaintiff that the defendant corporation had required that the oral agreement entered into between plaintiff and defendant be reduced to writing. Geza E. Neuman de Vegvar further advised plaintiff that the terms of the oral agreement were satisfactory to the defendant and that a written agreement would contain only the provisions of said oral agreement. That plaintiff stated that so far as he was concerned the oral agreement was satisfactory and no written agreement was necessary. That Geza E. Neuman de Vegvar continued to insist that the agreement be in writing. That the said Geza E. Neuman de Vegvar wrote and prepared a letter contract which he handed to plaintiff in plaintiff’s office about 11:30 P. M. on the 16th day of October, 1951, at a time when plaintiff was busily engaged in other work. Plaintiff stated to Geza E. Neuman de Vegvar that he was too busy to go over the letter contract at that time and was advised by Geza E. Neuman de Vegvar that the said letter contract only reduced to writing the above referred to oral agreement, theretofore entered into between plaintiff and defendant. That plaintiff stated to Geza E. Neuman de Vegvar that it was too late, that he did not have time to go over the contract and to read it, that Geza E. Neuman de Vegvar should return to his office the following day, namely, October 17, 1951, and that the parties at that time could carefully go over the terms of said letter contract and to check the terms thereof to make certain it contained the terms orally agreed to between the parties. That Geza E. Neuman de Vegvar, in order to obtain the signature of the plaintiff on said contract, urged the plaintiff to sign the same immediately without reading the same and he stated that he had to return to Topeka in order to take an airplane back to Virginia. That when said letter contract was presented to the plaintiff as aforesaid at 11:30 P. M., Geza E. Neuman de Vegvar specifically stated to the plaintiff that it contained only the terms of the oral agreement heretofore entered into and specifically that it provided that the plaintiff should receive 34$ per pound for each pound gained by said steers during the time that they were in the plaintiff’s custody. That the plaintiff relying upon the statements and representations made by Geza E. Neuman de Vegvar with reference to the terms of said oral agreement and specifically regarding the compensation of 34$ for each pound gained by said animals during the time said animals were in plaintiff’s custody and having faith in the statements made by Geza E. Neuman de Vegvar, signed said letter contract without reading the same, and handed the same to Geza E. Neuman de Vegvar, but that the signature of plaintiff thereon was secured by the fraud, deceit, misrepresentations, artifice, trickery, and dishonesty of the said Geza E. Neuman de Vegvar. That the fraud, deceit, misrepresentations, artifice, trickery, and dishonesty of said Geza E. Neuman de Vegvar consisted of the following, to-wit:
“(a) Geza E. Neuman de Vegvar stated and represented to the plaintiff that said letter contract provided that plaintiff should receive 34$ per pound for each pound gained by said steers, while in the care of the plaintiff, when in fact said letter contract provided that plaintiff should receive a lesser sum per pound gained by said steers, a fact well known to said Geza E. Neuman de Vegvar.
“(b) Geza E. Neuman de Vegvar well knew that the plaintiff was under the mistaken belief that said letter contract provided that plaintiff was to receive 34$ per pound for each pound gained by said steers while in the custody of the plaintiff, but did not call to the attention of the plaintiff the fact that the letter contract did not so provide.
“(c) Geza E. Neuman de Vegvar well knew that the plaintiff had not read said letter contract at the time he signed the same and was relying upon said Geza E. Neuman de Vegvar’s statements and representations as to the contents and provisions of said letter contract pertaining to compensation to be paid the plaintiff for feeding said steers.
“(d) Geza E. Neuman de Vegvar urged haste in signing said letter contract for the purpose of preventing the reading thereof by the plaintiff.
“(e) Geza E. Neuman de Vegvar so cleverly wrote said letter contract, and so cleverly and adroitly concealed the change from the true intent of the parties and their oral agreement, that plaintiff in hurriedly examining said letter contract could not know that said letter contract did not contain the true intent of the parties as expressed in the then existing oral agreement; that the change from the true intent of the parties and their oral agreement could only be ascertained by actual mathematical computation.
“That a copy of said letter contract is marked Exhibit A, attached hereto and made a part hereof.
“5. That said letter contract was entered into between the parties for the express purpose of reducing to writing the oral agreement previously entered into by the parties.
“6. That at all times herein mentioned the said Geza E. Neuman de Vegvar was an officer of said defendant, its servant, agent, and employee, and was acting within the scope of his position, agency, and employment.
“7. That when the said 412 head of steers were delivered to the plaintiff at the stockyard in McFarland, Kansas, on the 16th day of October, 1951, their total gross weight was 283,560 pounds. That on or about the 12th day of April, 1952, the defendant requested plaintiff to deliver said steers to the stockyard at McFarland, Kansas, for shipment to White Post, Virginia. That pursuant to said request the defendant (sic) did deliver said steers to the stockyards at McFarland, Kansas, on April 17, 1952, at which time said steers were weighed and the gross weight of 411 of said steers were found to be 355,960 pounds, and the remaining steer weighed approximately 866 pounds (which was sold by defendant and not shipped) making an increase of 73,266 pounds during the time the steers were under the control and custody of the plaintiff. That under and by virtue of the actual agreement entered into between the parties hereto there was due and owing to said plaintiff 34$ per pound for each pound gained during said winter feeding which sum amounted to a sum of $24,910.44.
“8. That plaintiff has performed all of the conditions of the actual agreement entered into between the parties hereto, that said letter contract should be reformed by judgment of this court and this court should order said letter contract to speak and set forth the actual agreement between the parties as stated above. That there was due and owing to the plaintiff from the defendant the sum of $24,910.44 for feeding and wintering of said steers as above alleged under the terms of said true agreement of which defendant has paid the sum of $18,530.34 leaving a balance due plaintiff in the sum of $6,380.10; that plaintiff has made demand upon defendant for the payment of said balance but that the defendant refused and still refuses to pay the same.
“Wherefore, plaintiff prays for an order of this court reforming said letter contract to conform to the antecedent oral agreement of the parties insofar as the same attempts to change the valid oral agreement. That said letter contract be reformed by substituting $102,590.40 in the place of $108,970.50 as the same appears in subparagraph (a) of paragraph 9. That plaintiff have and recover judgment from the defendant in the sum of $6,380.10 the balance due under said contract as reformed and for such other and equitable relief as to the court may seem just and equitable.”
Material portions of the letter contract, referred to as exhibit “A” and attached to the petition, are as follow:
“October 16, 1951
“Fleetwood Farms, Inc.
521 Fifth Avenue New York 17, N. Y.
“Gentlemen:
“I hereby acknowledge receipt from you of the 412 (four hundred twelve) head of Herford yearling steers, grading ‘good’ or better, originating from Saubel’s Circle Dot Ranch near Taylor Springs, New Mexico, which you have purchased from Mr. E. C. Turkington and have shipped to my care to McFarland, Kansas.
“You have exhibited to me ‘Settlement Sheet’, dated October 11, 1951, signed by Mr. R. H. Corbett, evidencing that said steers had a net pay-weight of 283,560 (two hundred eighty three thousand five hundred sixty) pounds and that the purchase price paid by you was $102,790.50 (one hundred two thousand seven hundred ninety and 50/100 Dollars).
“I am to winter said steers for you from the date of their arrival at McFarland, Kansas, i. e. October 14, 1951, until a date in April 1952 of your selection. You will give me five days’ notice of the exact redelivery date, when said steers are to be reweighed by me under the supervision of your designee at the railroad scales at McFarland, Kansas, and redelivered to you immediately thereafter fob railroad cars at McFarland, Kansas.
“200 of the aforesaid 412 steers will be grazed and fed on the farm of Gnadt & Stuewe near Alma, Kansas.
“212 of the aforesaid 412 steers will be grazed and fed on the farm of Kenneth E. 'Vilander near Maple Hill, Kansas.
“You have today given me your check in the amount of $6,180.00 (six thousand one hundred eighty and no/100 Dollars); i. e. $15.00 per head, as down-payment on the wintering. Should the average weight gain per head of steers (based on the difference between the redelivery weight and the aforesaid pay-weight of 283,560 pounds) be less than 90 (ninety) pounds, then and in such event, I am to refund to you upon redelivery to you such portion of said $6,-180.00 as 90 pounds less the actual weight gain per head of steers bears to 90 pounds.
“Upon redelivery to you fob railroad cars at McFarland, Kansas, you shall pay me as my entire compensation for the wintering as herein described, by your check as follows:
“34 (thirty-four) cents per pound of steers weighed on the railroad scales at McFarland, Kansas, less the difference of the following two amounts:
“(a) $108,970.50 (one hundred eight thousand nine hundred seventy and 50/100 Dollars)
“(b) Any refund on the down-payment as aforesaid.”
The remainder of the contract pertains to brand inspections, title to the cattle while being wintered, freight and veterinary charges, and details with respect to feeding and care of the cattle, with which we are not concerned in this appeal. It was signed at the end thereof by plaintiff and accepted in writing by defendant through its agent and vice-president.
Defendant’s demurrer is as follows:
“Comes now the defendant, Fleetwood Farms, Inc., and demurs to the plaintiff’s second amended petition herein upon the grounds that said petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant, shows the plaintiff to be guilty of such acts and omissions as would bar his recovery, and contains such a confusion of theories that it is impossible to determine from the general scope of the petition upon which of several theories a recovery is sought or upon what grounds plaintiff demands the relief requested.”
As stated, this demurrer was overruled and defendant has appealed. The correctness of that ruling is the only question presented.
Defendant’s contentions may be summarized as follow:
The petition on its face shows that no confidential relationship existed between the parties and that they dealt at arm’s length. It is not alleged that plaintiff was unable to read the contract before signing because of any physical or mental infirmity; that he would have suffered any loss or damage by taking time off from other work to read it before signing; that he was unfamiliar with the cattle-feeding business, or was in any way operating under any handicap or disadvantage. That although plaintiff had the opportunity to read and understand tire contract his only excuse was that he was busily engaged in other work and defendant’s agent wanted to catch a plane, all despite the fact they were dealing with a matter involving thousands of dollars; and that although the alleged oral agreement was a very simple one calling for a flat rate of 34 cents per pound of weight gained, the ^written contract, which covered three typewritten pages, was comparatively involved and contained a formula for computing the contract price, none of which had any meaning or significance under plaintiff’s theory, and that such fact constituted open and apparent evidence to him at the time of signing that it contained something more and different than the alleged oral agreement.
Because- of the foregoing, it is argued that any damage resulting to plaintiff was incurred and brought about through his own inexcusable negligence in not ascertaining the contents and meaning of the contract before signing, and therefore no cause of action for equitable relief on the ground of fraud is stated, and in support thereof reliance is had upon what was held in Tractor Equipment Co. v. Ayers, 115 Kan. 769, 225 Pac. 115, and other decisions of like effect.
Plaintiff, on the other hand, contends that from the allegations of the petition it is clear that the only negligence on his part, if any, consisted in believing and relying on the statements and representations of defendants agent, which later proved to be false; that there was nothing about the contract to warn a person on first glance that it contained the complicated formula for computing the contract price which, it is maintained, is vastly different than the alleged oral agreement of a straight 34 cents per pound gain, and he likewise relies on what was said in the Tractor Equipment case, supra, in support of his position.
The question of negligence of one signing a contract without first - reading it and familiarizing himself with its contents as being a defense in an action based on fraud has been before the court on numerous occasions. Resort to the decisions shows that as a general proposition each stands upon its own footing and is governed by the attendant facts and circumstances of the particular case.
This case has not been tried. What the proof may establish is entirely another matter. We are not concerned with and express no opinion as to an analysis of the “formula” for computing the contract price contained in the contract signed by the parties. We confine ourselves solely to the question whether plaintiff’s allegations are sufficient to withstand the demurrer.
It is our opinion that they- are.
The well-reasoned opinion in the Tractor Equipment case, supra, ’ discusses the general rule pertaining to avoidance of the provisions of a written contract by one who does not read before signing, and then cites with approval the well-recognized exception announced in Tanton v. Martin, 80 Kan. 22, 101 Pac. 461, which is:
“A recognized exception to the rule that a party is held to know and be bound by the provisions of a writing which he signs is where one party procures another to execute the writing by falsely and fraudulently representing that it contains the stipulations previously agreed upon when in fact it does not and where the party signing the writing relies upon the faith of these representations and is thereby induced to omit the reading of the writing which he signs.” (Syl. 1.)
For a more complete statement of the exception to the general rule we cite the following from Cox v. Pabst Brewing Co., 128 F. 2d 468 (10th Circuit):
“In order to afford relief against the harshness of the general rule that a party is held to know and to be bound by the provisions of the writing which he signs, the courts now recognize the general rule based upon sound equitable considerations, that liability on written instruments may be avoided, or such written instruments may be reformed and enforced in accordance with an antecedent oral agreement, when it is made to appear that the party executing the written agreement without reading the same was deceptively or fraudulently induced to believe that the written agreement contained all of the terms and conditions of the antecedent oral agreement, and when the circumstances justify a belief in the integrity of the promises made to him that such written contract does in fact represent the true antecedent oral agreement between the parties. Nor will the negligence of the defrauded party excuse the fraud, unless it is gross and palpable. Kansas adheres to this rule.” (Numerous citations.)
See also Stegman v. Professional & Business Mens Life Ins. Co., 173 Kan. 744, 252 P. 2d 1074, where it was said:
“An invariable qualification of the rule which makes parol evidence inadmissible to vary the terms of a written instrument is the one which permits such testimony where a contract is induced or procured by fraud.” (Citing cases.) (p. 751.)
In our opinion the allegations of the petition are sufficient to state a cause of action, and the order of the lower court overruling defendant’s demurrer thereto is affirmed.
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The opinion of the court was delivered by
Price, J.:
This is an appeal by a defendant who was convicted of driving a vehicle within this state while under the influence of intoxicating liquor, prohibited by G. S. 1949, 8-530.
At about nine o’clock, on file night of May 29, 1953, while patrolling Kansas Highway No. 4, about a mile east of Ransom, law enforcement officers came upon a car parked upon the highway, headed east, in the center of the east-bound traffic lane. It was dark and the car’s lights were out. The engine was not running. Defendant was sitting in a slumped position in the driver’s seat, and was in a dazed condition. A carton of beer, with one can removed, was in the car. There was an open can of beer, partially full, in the front seat. Some of it had been spilled. Very shortly thereafter other officers appeared at the scene. All of them testified that defendant was intoxicated. Efforts were made to move the car to the side of the road so as to lessen the traffic hazard, and there was evidence to the effect that at the time these efforts were being made defendant himself started the engine and backed the car a few feet. He was arrested, taken to jail, and one of the officers drove the car in to town.
The only evidence introduced by defendant consisted of the testimony of a witness who was at the scene with respect to who did or did not move defendant’s car off of the highway. There is no contention that defendant was not intoxicated when found by the officers.
The jury found defendant guilty as charged, his motion for a new trial was overruled, and he was sentenced to pay a fine of $300 and costs.
Two of defendant’s specifications of error relate to alleged erroneous instructions and to alleged error in the admissibility of evidence.
The instructions given by the court are not abstracted, and therefore this assignment of error must be disregarded. With respect to alleged erroneous rulings as to the admissibility of evidence, the claim is simply not sustained by the very sketchy and meager record before us. Such portions of the evidence as are abstracted fail to disclose any error with respect to this matter.
It is contended the court erred in overruling defendant’s demurrer to the state’s evidence, and his motion for discharge.
Here, again, we are handicapped on account of a very limited abstract of proceedings in the trial court. It is not clear whether defendant’s contention as to the insufficiency of evidence relates to the question of his driving the car a few feet after the officers arrived at the scene, or to the fact there was no direct evidence that he, while in an intoxicated condition, drove the car to the spot on the highway where it was found.
However, be that as it may, error is never presumed and must be established, and in this connection the presumption is that the jury was properly instructed with reference to proof of the offense charged by circumstantial evidence. For all the record shows, the jury reached the obvious conclusion that defendant drove the vehicle to the place where it was found, and that at the time was under the influence of intoxicating liquor, on the theory that a sober person would not park his car in the middle of the highway, with the lights off, after dark. Entirely aside from the confusing evidence as to whether defendant “drove” his car after the officers arrived at the scene, the circumstantial evidence above related was sufficient to withstand the demurrer and to support the verdict of guilty.
And, finally, it is argued that defendant is entitled to a new trial because of an incident occurring prior to the return of the jury’s verdict.
It appears that after the jury retired to deliberate, counsel for defendant asked the court to excuse the defendant so that the latter could leave and go to his home. This request was granted. Later, and while the jury was still out, defendant’s counsel and the county attorney requested permission to leave. These requests were likewise granted. Still later, the jury asked that a portion of the testimony of one of the state’s witnesses be read to it. The court attempted to get in touch with defendant and both attorneys, but was unable to locate any of them, following which it permitted the court reporter to read the requested testimony to the jury. It then appears that about one and one-half hours later the jury returned its verdict.
Defendant contends that such procedure amounts to reversible error, and in this connection states that at the time of the incident certain colloquy was had between the court and jury which was objectionable and prejudicial. However, such colloquy, if any, is not included in the record, and defendant’s bald statements with respect to such matter must be disregarded. As heretofore stated, error is never presumed — it must affirmatively be made to appear.
And, under all of the facts and circumstances shown, defendant, who was on trial for a misdemeanor, and who was absent at the time upon his own request and that of his attorney, may not now be heard to complain of what transpired in his absence in the way of the reading to the jury of the testimony requested. In this connection, see State v. Fry, 131 Kan. 277, 291 Pac. 782, and State v. Maxwell, 151 Kan. 951, 957, 958, 959, 102 P. 2d 109, 128 A. L. R. 1315. The situation here presented is entirely different from that found in State v. Hinkle, 176 Kan. 152, 269 P. 2d 465.
An examination of the limited record before us discloses nothing approaching reversible error, and the' judgment is therefore affirmed.
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover judgment on an alleged debt. The trial court found the indebtedness existed but was not due and on that account denied recovery. The plaintiff appeals from such judgment.
No questions are raised respecting the pleadings and references thereto are for informative purposes.
The action was commenced on April 8, 1953, by the filing of a petition which was subsequently amended to comply with a ruling on a motion to make its allegations more definite and certain. The amended petition alleges in substance that on May 6, 1952, plaintiff loaned the defendants Kate Smith, Walter Smith and Mae Griffin the sum of $1,100 and that such defendants agreed orally to repay the loan in equal monthly payments, commencing June 1, 1952; that four days later one of the defendants, whose name was unknown to plaintiff, repaid $50 of the indebtedness by paying that amount to the Garnett State Savings Bank with directions to deposit it to his account; and that thereafter the defendants failed and refused to make any further payments “on said note” with the result it had become due and payable.
Following service of summons the defendants Kate and Walter Smith filed an answer wherein they admitted plaintiff had loaned them the sum of $1,100 but asserted that on May 6, 1952, to secure the payment of such loan all defendants named in the action made, executed and delivered their promissory note in writing to plaintiff, by the terms of which they agreed to pay him the principal sum of $1,100 in three years, without interest, and reserved the privilege of paying such principal at any time. The answering defendants then asserted that the note, which they had attached to and by reference made a part of their pleading, was the sole and only contract existing between the parties and asked for judgment denying plaintiff the relief sought in his petition.
In response to the foregoing answer plaintiff filed an unverified reply in which he denied any and all allegations controverting the claims made by him in his amended petition.
It will clarify the issues at this point to note the defendant Mae Griffin was not served with summons, that she filed no answer and that her rights and obligations were not determined by -the judgment and are not involved on appellate review.
After issues had been joined as related the case came on for trial by the court which, after hearing all evidence adduced by ’the parties, made findings of fact and conclusions of law as follows:
“Findings of Fact
“1. On May 6, 1952, the plaintiff loaned the defendants the sum of
$1,100.00.
“2. That at the time of making said loan and in consideration thereof, defendants executed and delivered to plaintiff a promissory note in the following form:
“ ‘$1,100.00 Garnett, Kansas
May 6, 1952.
Three years after date, we, the undersigned, for value received, promise to pay to the order of
John G. Demaras, Kansas City, Missouri, the sum of one thousand one hundred and no/100 Dollars ($1,100.00) the same to bear no interest. Notice of Protest is hereby waived. Privilege is hereby granted to the makers to pay the above amount at any time they desire/
“3. That said note was left with Mr. Loughridge by the plaintiff.
“4. That there was no showing that the terms of the note were subsequently altered either by parole (sie) or in writing.
“5. That on June 5, 1952, Mary Griffin deposited in the Garnett Savings Bank at Garnett, Kansas, to the credit of John G. Demaras, the sum of $50.00.
“Conclusions of Law.
“1. That whatever oral conversations were had were merged into the promissory note which, having not been subsequently altered, constitutes the contract between the plaintiff and the defendants Kate Smith and Walter Smith.
“2. That defendants Kate Smith and Walter Smith are indebted to plaintiff on said note in the amount of $1,100.00 which is not due.
“3. Judgment is entered for defendants Kate Smith and Walter Smith and for the costs of this action.”
In accord with the foregoing findings and conclusions judgment was rendered in favor of the defendants appearing in the action for costs and holding that the rights and obligations of the defendant Mae Griffin were not determined because she had not been served with summons. Subsequently the involved defendants filed a motion for an order setting aside conclusion of law No. 2. This motion was sustained to the extent such conclusion was amended to read $1,050 instead of $1,100. Also subsequent to the judgment, plaintiff filed motions for substituted findings of fact and conclusions of law and for a new trial. When these motions were overruled he perfected the instant appeal.
Appellant’s specifications of error are all based on alleged trial errors. Therefore appellate review is limited and will be restricted to questions pertaining to whether error was committed in the overruling of the motion for new trial.
At the outset it may be stated the record discloses, and for that matter counsel for appellant with commendable candor concedes that unless claims of error assigned as grounds for disturbing the ruling on the motion for new trial are sustained, there was evidence to support the findings of the trial court, its conclusions of law, and the judgment rendered in accord therewith.
The first point raised by appellant is that the trial court’s action in admitting in evidence the copy of the note relied on by appellees as a defense to the action was in violation of G. S. 1949, 60-2850 and 60-2851, prohibiting the introduction of secondary evidence without laying the foundation contemplated by such sections of the statute. Conceding, as appellant insists, that such sections contemplate, and decisions (See McCormick v. Roberts, 32 Kan. 68, 72, 3 Pac. 753; Roberts v. Dixon, 50 Kan. 436, 31 Pac. 1083) may be found holding, that before secondary evidence can be received a party must in general show the loss or destruction of the original, or that he has used reasonable efforts and the means which were accessible to him to find the writing or cause its production; and, if it appears to be in the hands of the adverse party, notice to produce the original is necessary in order to lay a foundation for the introduction of such evidence, there are several sound reasons why such rule has no application in the case at bar. In the first place it does not appear that the copy of the note when offered in evidence was objected to on the ground no proper foundation had been laid for the admission of secondary evidence. In that situation such an objection comes too late when first made on appellate review. In the next place G. S. 1949, 60-2851, expressly provides its terms do not apply to any paper, a copy of which is filed with a pleading. Here, as has been heretofore pointed out, a copy of the note relied on as a defense to appellant’s cause of action was attached to and made a part of appellees’ answer. Last but not least where — as here — it affirmatively appears from the face of the record that the primary evidence, when produced, would prove to be the same as the secondary evidence admitted, it cannot be successfully argued that the admission of such secondary evidence has prejudicially affected the substantial rights of the party complaining thereof for, under such circumstances, our statute (G. S. 1949, 60-3317) directs and our decisions hold that error if any in the admission of such secondary evidence must be disregarded as technical and affords no sound ground for granting a motion for new trial or reversal of the judgment. See, e. g., Wendell v. Heim, 87 Kan. 136, 123 Pac. 869, where it is said:
“. . . But even under the code as it existed before the amendment the admission of this record would not be ground of reversal, since the fact and terms of the reservation are not disputed, and it is not claimed that the original instrument would show anything different from the record. Reversal will not be ordered for technical errors that do not appear to have prejudicially affected substantial rights. (Civ. Code, § 581.) It would be judicial folly to order a new trial because secondary evidence was received, if the primary evidence, when produced, will prove the same fact.” (pp. 138, 139.)
Appellant’s second assignment of error is “that no evidence of the agreement, as alleged by the defendants, should have been introduced because it was contrary to G. S. 1949, 33-106.” Specifically the gist of all arguments advanced in support of his position on this point is that appellant did not sign the note relied on as a defense and since that agreement provided for repayment beyond a year it was therefore unenforceable under and by virtue of one of the sections of our statute of frauds, namely, G. S. 1949, 33-106, providing in substance that no action shall be brought to charge a party upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith.
In support of the foregoing claim of error appellant directs our attention to Jones v. Bank, 103 Kan. 297, 173 Pac. 977, which holds:
“The provision of the statute of frauds which prohibits the bringing of an action upon a promise to answer for the debt, default or miscarriage of another, unless in writing, applies with equal force to a defendant; and a verbal contract which is within the statute cannot be enforced indirectly as a defense to a demand otherwise legal and just.” (Syl. If 2.)
We have no quarrel with the rule just quoted. The difficulty from appellant’s standpoint is that it does not come into play unless and until it is determined his failure to sign the note makes that instrument, particularly the provisions thereof providing for payment of the principal, unenforceable by reason of the statute of frauds (33-106, supra). We therefore turn to that question, mindful as we do so, that to uphold appellant’s views with respect thereto would require repudiation of the sound and salutary rule, long prevailing in this jurisdiction (See, e. g., Trust Co. v. Danforth, 103 Kan. 860, 177 Pac. 357; Macksville State Bank v. Ehrlich, 119 Kan. 796, 802, 241 Pac. 462; Hudson State Bank v. Haile, 130 Kan. 322, 286 Pac. 228), that a promissory note in the usual form, when executed by the maker and delivered to and accepted by the payee, cannot be contradicted or altered by a showing of prior contemporaneous oral agreements because the result would be to render unsafe all reliance on such instruments. For more recent decisions disclosing the rule is applicable not only to promissory notes but to all written contracts, whether negotiable, assignable or otherwise, see McKay v. Clark, 162 Kan. 653, 178 P. 2d 679; Brown v. Beckerdite, 174 Kan. 153, 254 P. 2d 308; see, also, 12 Am. Jur., Contracts, 552, § 61.
At the outset, without detailing the evidence, it may be stated, the record clearly establishes that after consummation of previous oral negotiations respecting the making of the loan appellant accepted the note in question in its present form and added that even if it be assumed, as appellant contends, failure to sign the note brought it within the provisions of section 33-106 of the statute of frauds we would be inclined to the view his acceptance of that instrument made it a contract in writing upon which suit could be instituted and the same rights maintained as though it had been signed by him. This conclusion, we believe, finds support and is warranted by our decisions (See Schmucker v. Sibert, 18 Kan. 104; Harris v. Harper, 48 Kan. 418, 29 Pac. 697; Barhyte v. Real-estate Co., 66 Kan. 390, 391, 71 Pac. 837) recognizing that a deed, signed by the grantor, is to be given that force and effect. However, since there are good reasons for holding his contention respecting applicability of such section of the statute is wholly fallacious, we are neither called upon nor required to base this decision upon any such assumption.
One of the reasons to which we have just referred is that an ordinary promissory note executed, delivered and accepted under the confronting facts and circumstances, is a unilateral contract (12 Am. Jur., Contracts, 506 § 8; Restatement, Contracts, Vol. 1, § 12; 17 C. J. S., Contracts, 326 § 8) which does not come within the scope of 33-106, supra, (Restatement, Contracts, Vol. 1, §198; 49 Am. Jur., Statute of Frauds, 845 § 543; 2 Corbin on Contracts, Statute of Frauds, 771 § 523). Another, in a sense inherent in the one just mentioned and certainly supported by the same authorities, is that the only signatures necessary to the validity of a promissory note are the makers thereof, hence the payee named in such an instrument is not a “party to be charged therewith” within the meaning of that term as used in the last prohibition of 33-106, supra. Additional authorities supporting this conclusion will be found in 49 Am. Jur., Statute of Frauds, 686 § 384; 37 C. J. S., Frauds, Statute of, 698 § 206; 2 Williston on Contracts (Rev. Ed.) 1687 § 586. Still another, particularly applicable because of express language of the involved note disclosing the promises contained therein could have been fully performed at any time after its execution, is that before a contract .will be adjudged void by reason of the last prohibition of such section of the statute it must clearly appear that such contract is incapable of being performed within a year. For Kansas cases and other authorities supporting this rule see Hatcher’s Kansas Digest (Rev. Ed.), Frauds, Statute of, §21; West’s Kansas Digest, Frauds, Statute of, §§ 49 to- 52, Incl.; 49 Am. Jur., Statute of Frauds, 385 § 25; 37 C. J. S., Frauds,.Statute of, 553, 556, 558, 561 §§ 42, 48, 50, 53; 2 Williston on Contracts (Rev. Ed.) 1441 § 495.
Based on the foregoing authorities we are constrained to conclude the contentions advanced by the ingenuity of appellant’s astute and diligent counsel, to the effect the provisions of 33-106, supra, precluded the trial court from admitting such note in evidence and from giving the terms of that instrument weight as a defense to the cause of action set forth in the amended petition, cannot be upheld.
Since our conclusions on the foregoing and other points previously considered dispose of all errors assigned the judgment must be affirmed.
It is so ordered.
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The opinion of the court was delivered by
Johnston, O. J.:
Maggie Greiner brought this action against Albert Greiner, her son, upon two causes of action, one upon a promissory note for $766 executed by Albert Greiner, and the other upon an account for $142.50. The indebtedness upon the account was conceded to be due by defendant, and controversy on that cause is ended. The action upon the note was defended by Albert Greiner on the ground that he had paid it by services performed by him for his mother in accordance with a verbal contract with her. The defendant prevailed in the action upon the note, and plaintiff appeals.
Defendant admitted the execution of the note and assumed the burden of the proof upon the question that it had been discharged by services rendered to plaintiff at her request, and her agreement to cancel the obligation. When defendant’s testimony was concluded plaintiff filed a demurrer thereto, which was overruled. At the close of all the testimony the case was submitted to the jury with instructions, and upon the evidence and instructions of the court the jury found in favor of the defendant.
One complaint is that the court erred in overruling plaintiff’s demurrer to defendant’s evidence. This ruling was an appealable order, but it was not brought here within the six-months’ period and therefore the right to obtain a review of that ruling is lost. (White v. Railway Co., 74 Kan. 778, 88 Pac. 54; Norman v. Railway Co., 101 Kan. 678, 168 Pac. 830.)
Plaintiff assigns as error that the evidence is insufficient to sustain the findings and verdict of the jury, and therefore is entitled to a review of the evidence as it stood when the case was submitted to the jury. It is essentially a fact case, whether the note had been discharged by service rendered to plaintiff by defendant, in accordance with the alleged agreement. The note, it appears, was acquired by plaintiff in the way of an inheritance from a deceased son whose estate she administered. The defendant, it appears, had remained upon the farm with his mother for many years and there is testimony to the effect that he attended to business for her besides working on the farm and that she agreed to give the note back to defendant for the services rendered and to be rendered. Testimony was given that defendant had worked for her before she acquired the note, and also after she gained possession of it. He helped her by working on the farm, taking care of stock, doing chores and doing business for her in town. In the administration of the estate a witness testified that plaintiff did not want to list the note as an asset, as she said- she was going to give it to defendant, but that she was advised that as the note was an asset of the estate it would have to be listed. Afterwards, that she stated she had forgotten to give the defendant back the note, but that when she went to town ■she would get it and give it to him. He replied that there was no use to bring it home, it was just as well to destroy it. Another witness testified that plaintiff had said she had given the note back to defendant, and further that defendant had transacted nearly all of his mother’s business.
The evidence in behalf of defendant, although contradicted, tends to show that there was an agreement that the services rendered and to be rendered were to operate as a discharge of the indebtedness. That testimony with all the inferences fairly and reasonably to be deduced from them, was enough to carry the case to the jury, and the credibility of witnesses as well as the weight and effect of the evidence are, of course, matters for the determination of a jury.
Plaintiff calls attention to an answer of defendant on cross-examination in reply to the question, if he ever made any charge for these little services, like taking her around in the car when she helped pay for it or getting groceries for. which she paid, that he never made any charges and did not intend to. It is the law that recovery cannot be had for services gratuitously performed as an act of filial kindness. (Stadel v. Stadel, 40 Kan. 646, 20 Pac. 475.) Defendant’s statement, however, is open to the interpretation, he was speaking of the little services rendered during the early years of the period he was at home with his mother, prior to the time of the agreement and before she acquired the note. The jury, in answer to a special question as to whether defendant performed services after the note was given for. which plaintiff was to pay him by a return of the note, found that he did perform the services, and in response to another question as to what such services were, found that they were performed as her general business manager from November 17,1926, to November 27, 1927. Evidently services were performed by defendant after the plaintiff acquired the note and after the negotiations between the parties as to the payment and cancellation of the note.
Our conclusion is that there was evidence to support the findings and verdict and that it cannot be said that they were given under the influence of passion and prejudice.
Something is said about the instructions of the court and also of the disregard of them by the jury. Not all of the instructions are preserved in the record, nor is all of the evidence included in the record, and we cannot say that there was fault in the instructions or disregard of them, nor that the evidence did not justify those given. (Commissioners of Allen Co. v. Boyd, 31 Kan. 765, 3 Pac. 523; Gray v. City of Emporia, 43 Kan. 704, 23 Pac. 944; Woodford v. Light Co., 77 Kan. 836, 92 Pac. 1133.)
Finding no material error in the record, the judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The Bankers Mortgage Company, one of the defendants in an action to foreclose a mechanic’s lien, appeals from a judgment rendered against it and in favor of the plaintiff and two defendants, all subcontractors, giving them mechanics’ liens on the leasehold estate of the mortgage company, and later in the same action the mortgage company appeals from a judgment sustaining a garnishment against it, and in favor of two of the three subcontractors. The first appeal involves the validity of a mechanic’s lien on a leasehold estate; the second the regularity of the garnishment proceedings.
The Bankers Mortgage Company leased the entire second floor of a business building in Topeka from the owner, the Kansas Life Insurance Company, for a term of five years, to be used as office rooms and for no other purpose. Sections 10 and 17 of the lease are as follows:
“Tenth: The lessee shall install meter and pay for the amount of electricity used. Also install meter and pay for water used. And the said lessee is to build all partitions at their own expense and in such a manner not to cause a fire hazard or to increase the insurance rate on said building.”
“Seventeenth: It is further agreed and understood by the parties of the first part, The Kansas Life Insurance Company, and the parties of the second part, The Bankers Mortgage Company, that should The Bankers Mortgage Company leave the premises on the expiration of their lease they will be privileged to remove all partitions: Provided, however, That the place occupied by these partitions will be placed in good order and the building not left marred or defaced.”
To construct such partitions a contract was let by the mortgage company to one L. L. Hill, and he procured lumber and other building material for that purpose from the plaintiff and the two other materialmen made defendants in this action.
No question is raised as to the amount of the claims, the filing of the lien statements in time, nor the failure of the contractor to pay the claims.
The appellant contends that a tenant of a part of a building is not such an owner of a tract or piece of land as to bring him under the provisions of the mechanics’-lien statute, and cites eminent authorities in support of its position. Nearly all the cases cited from other states are under statutes differing greatly from our mechanics’-lien statute. Many of the cases consider and discuss the question of whether the lien can be extended to the building as separate from the land on which it is located, and whether the lien can cover improvements only, and the enforcement of the lien when it is a lien on the improvements only.
But we in this case are not concerned in the solution of any of these interesting questions and distinctions. We have here a written lease which, under the general authorities as well as our own decisions, makes the lessee an owner as named in our mechanics’-lien statute, R. S. 60-1401, and fully authorizes such lessee to contract for the making of improvements on his leasehold estate, whatever that estate may be, and incur the obligation of a mechanic’s lien on such estate in favor of the one who, under contract or subcontract, furnishes labor or material that is used in the construction of improvements on the estate. The physical character of the property owned is not the test. The lien is upon the entire estate of the lessee.
“In some jurisdictions there are statutory provisions extending mechanics’ liens to leasehold estates, but, regardless of such provisions, it seems settled that the word ‘owner’ in a statute giving a mechanic’s lien on the interest of an owner is not limited to an owner of the fee, but also includes the owner of a leasehold estate. Consequently, a leasehold estate is subject to a mechanic’s lien for an improvement erected by or under a contract with a lessee. . . . The lien attaches not merely to the improvement placed on the premises, but to the entire interest of the lessee in the leasehold.” (18 R. C. L. 886, 887.)
“A mechanic’s lien may attach to, and be enforced against, a leasehold estate for labor or materials furnished under a contract with the lessee, regardless of whether the lessee has an estate for years or is merely a tenant from month to month, and even though the tenant has the privilege of removing the buildings, machinery, or fixtures from the premises at the end of the term. However, a mechanic’s lien upon a leasehold estate attaches subject to all the terms and conditions of the lease.” (40 C. J. 63.)
Our own court many years ago reached the same conclusion, and it has regularly adhered to it since.
“A mechanic’s lien, or lien for material and labor, may attach to a leasehold estate.
“A leasehold estate may include buildings, fixtures and machinery, placed upon the real estate by the tenant.
“Such a lien may attach to the leasehold estate, including the buildings, fixtures and machinery placed upon the real estate by the tenant, although the tenant may have the right and privilege of removing such buildings, fixtures and machinery from the leased premises.” (Hathaway v. Davis & Rankin, 32 Kan. 693, syl. ¶¶ 1, 2, 3; 5 Pac. 29.)
“It is said that a mechanic’s lien may attach tó a building apart from the land (27 Cyc. 226), although the decisions to that effect are for the most part based upon statutes materially different from ours. It attaches to a leasehold interest, and even where this is only that of a tenant at will the lien covers any building or improvement which the tenant would have a right to remove.” (Pond v. Harrison, 96 Kan. 542, 544, 152 Pac. 665.)
See, also, Mulvane v. Lumber Co., 56 Kan. 675, 44 Pac. 613; Lumber Co. v. Arnold, 88 Kan. 465, 129 Pac. 178; Lumber Co. v. Petroleum Co., 116 Kan. 78, 225 Pac. 744; Lumber Co. v. Malone, 8 Kan. App. 121; Horn v. Clark Hardware Co., 45 L. R. A., n. s., 100.
It is further urged by the appellant that a mechanic’s lien cannot attach to this leasehold estate or any of the tenant’s interest in the building or property because the lease expressly forbids an assignment or. .transfer of the lease without the written consent of the lessor, w]iich the record shows has not been given. In support of this position appellant cites Moser & Son v. Tucker & Co., 87 Tex. 94, and Holliday v. Aehle, 99 Mo. 273. The first case was where a tenant, in violation of a special statute denying tenants the right to sublease without the written consent of the landowner, did transfer his lease without such consent and then his creditor attempted to recover from the assignee the rent because the assignment was invalid and not binding. The decision was based wholly upon the statute, holding that the tenant thereunder had no estate that could be transferred, either voluntarily or involuntarily, without the consent of the owner.
The other case cited was under a special statute which in effect protected certain tenants against executions by their creditors unless the consent of the owner was given, and also protected the landlord in his rights. It was there held that the landlord might under this statute lawfully insist on holding the original tenant to the terms of the lease.
We have no such statutes. If the mortgage company in this case had attempted to assign its lease it would have been a breach of the provisions of the contract and the owner might refuse to recognize the assignment, but it would not be in violation of any statute. An involuntary transfer or assignment or one by operation of law is entirely different, and without a special statute protecting the tenant or landlord, the provisions of the lease forbidding the assignment will not prevent a transfer from being effective ydien done involuntarily and by operation of law. Of course, the interests and rights of the lessor must be fully protected under the contract, and the lessor is the only one who can complain. The lessor in this case was made a party defendant, and in the judgment rendered granting the liens upon the leasehold estate and subjecting the same to foreclosure sale, the decree provides:
“. . . that foreclosure should be had of said liens on said leasehold interest of The Bankers Mortgage Company, subject to-the right, title and estate of lessor, The Kansas Life Insurance Company.”
The lessor is not here complaining. It has not appealed from the judgment rendered.
“Restrictions against assignment or subletting imposed by the terms of the lease are intended for the benefit of the lessor and his assigns, and if neither of these objects to a breach of the restriction no one else may do so.” (35 C. J. 979.)
“A restriction against transfer is not as a general rule regarded as broken by an involuntary alienation or transfer by operation of law. . . . Hence, unless expressly so provided by the lease, the transmission of the lessee’s interest to his personal representatives by operation of law, ... or foreclosure sale, . . . does not amount to a breach of a restriction against assigning or subletting unless it appears that the proceedings were voluntary and collusive on the part of the tenant with a view to defraud the landlord of his rights.” (35 C. J. 981, 982.)
“A general restriction on the right to assign is held to include only a voluntary assignment, and not an involuntary assignment. If, however, the lessor desires to avoid an involuntary transfer he may provide expressly in the lease that such a transfer shall work a forfeiture and the courts will give effect to such a provision. As a general rule an assignment arising out of a sale of the leasehold estate on execution does not violate a general restriction against an assignment by the lessee.” (16 R. C. L. 834.)
The next point urged by the appellant is that the written notice of the filing of the lien required by statute to be served upon the owner was not served within a reasonable time. The statute, R. S. 60-1403, does not designate the time within which it should be served, and in lieu of any designation of specific time it must be within a reasonable time. This objection applies only to one of the three liens here involved, viz., that of the plaintiff, which was filed March 12, and the written notice was served April 21, after a delay of forty days. Two Kansas cases are cited by both parties as holding the time intervening should be reasonable considering all the facts and circumstances. In the earlier one, Deatherage v. Henderson, 43 Kan. 684, 23 Pac. 1052, the time intervening was only eleven days, and the court said:
“What would be a reasonable time for the service of the notice must be determined by the court or jury trying the case, considering all of the attending circumstances.” (Syl. ¶ 3.)
In the later case, Lumber Co. v. McCurley, 84 Kan. 751, 115 Pac. 590, the time intervening was 137 days and the court took into consideration the fact that the defendants knew and understood about the claims not having been paid; they had the contractor check them over to see if they were correct; they had conversations with the claimants, talked about settlement, and were in the same condition financially when notices were served as when the liens were filed. The court said:
“It clearly appeared that the school district suffered no injury whatever from the failure to receive earlier formal notice. Under these circumstances it cannot be said that the trial court erred in holding that the school district had no reason to complain, and that the notices were served in time.” (p. 755.)
The facts in this case were very similar except as appellant calls our attention to a difference as to the time when the conversations were had. In the case just cited some of the conversations' were after the liens were filed, while in the case at bar all the conversations were before the filing of the lien, the last one immediately before the lien was filed, at which time the company was informed that, plaintiff claimed a lien and asked the mortgage company not to pay any money to the contractor, and nothing more was paid. We see-, no reason why the ruling of the trial court should not be sustained-,, in following the two earlier decisions, when the mortgage company was fully informed orally of the situation and it suffered no injury-whatever from the failure to receive an earlier formal statutory-notice.
We find no error in the garnishment proceedings.
Both judgments are affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of the theft of an automobile. He assigns error on the insufficiency of the evidence, and questions the validity of the sentence.
On November 13, 1928, a Studebaker automobile, 1924 model, engine number 69461, belonging to O. F. Wright, of Hutchinson, was stolen. Early in February, 1929, such an automobile was discovered by local police officers in a garage behind defendant’s place of abode and eventually identified as the stolen car. It had been partly disguised by the nickeled work around the radiator having been painted.
The state’s evidence tended to show that defendant had frequently been seen driving the car in and around Hutchinson at various times between the date it was stolen and the time it was discovered and identified. It was also shown that he had borrowed a small paint gun such as could be used for painting the car to disguise it. It was also shown that he had rented a stall in a three-stall garage, in one of which the automobile was sometimés seen after it was stolen. The automobile was not seen standing in the particular stall which defendant had rented, but it was shown that defendant and others had placed a [stolen?] tractor in defendant’s stall, and that the owner of the garage was aware that defendant was sometimes putting the automobile in a vacant stall in the same garage. It was also shown that defendant had brought the ear to a repair shop to have the starter repaired, and at another time he sent its generator to the same workshop for repair, and that defendant later called for it. The last two incidents occurred about Christmas time, 1928. Other incidents showing defendant’s possession of the car and his exercise of dominion over it were abundantly shown to make a prima facie case against him for its theft under the familiar and oft-repeated rule of this court touching unexplained possession of recently stolen property. (State v. Cassidy, 12 Kan. 550; State v. Bell, 109 Kan. 767, 201 Pac. 1110; State v. Bartholomew, 116 Kan. 590, 227 Pac. 366; State v. Wood, 118 Kan. 58, 233 Pac. 1029.)
' It is contended, however, that the force of this rule was altogether dissipated because a codefendant, Virgil Shaw, confessed at the preliminary examination that he had stolen the automobile'. . Defendant argues that such confession by another person was a complete and satisfactory explanation which entirely destroyed the state’s case against defendant based on his possession of the recently stolen automobile. We think not. How it came into defendant’s possession was just as much an incriminating dilemma for him to explain as ever. He still continued under the risk of nonpersuasion. (State v. Bell, supra.) It seems needless to elaborate on the proposition, that more than one person may participate in the theft of an automobile, and the fact that one of them confesses his guilt contributes little or nothing towards the exculpation of the others. Another point urged against the evidence is that defendant’s pos session of the stolen car was at too remote a time after its theft to have any probative value. We think not. It was stolen on November 13. One witness testified that he saw defendant driving it “the latter part of November.” The error assigned on the insufficiency of the evidence is not sustained.
The next error assigned relates to the sentence which was imposed on defendant — ten to thirty years in the penitentiary. After the verdict of guilty was rendered and the cause came on for judgment and sentence, the state, upon due notice to defendant, adduced proof that defendant had been previously convicted of grand larceny for the theft of a cow and had served a term of imprisonment in the state penitentiary therefor. Pursuant thereto the defendant was sentenced as above. The pertinent statutes are a part of one section of the crimes act and the statute of 1927 known as the habitual-criminal act. These read:
“Persons convicted of grand larceny shall be punished in the following cases as' follows: First, for stealing any automobile or motor vehicle, by confinement at hard labor for not less than five years and not more than fifteen years; . . .” (R. S. 21-534.)
“An Act relating to punishment for felony, providing additional punishment for second and third convictions.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the' penitentiary not less than double the time of the first conviction; and if convicted a third time of felony, he shall be confined in the penitentiary during his lifetime. Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and' other competent evidence, the fact of former convictions for felony committed by the prikoner, in or out of this state.” (Laws 1927, ch. 191.) ' ‘
The validity of this statute has already been decided (State v. Woodman, 127 Kan. 166, 272 Pac. 132), but the question for our present consideration concerns its proper interpretation. Defendant calls attention to the punishment imposed by the crimes act for stealing a cow — one to seven years in the penitentiary (R. S. 21-534), and suggests the habitual-criminal act means that upon a second conviction of a felony the punishment should be governed by the nature and extent of the punishment imposed for the crime for which he was first convicted, thus:
Punishment for the first felony — stealing, a cow — one. to seven years’ imprisonment. . ■ -
Ergo, punishment for the second felony — stealing an automobile— not less than twice that first sentence, or two to fourteen years’ imprisonment.
There is manifestly something wrong with that reasoning. A first offender convicted of stealing an automobile is to be given a sentence of five to fifteen years. How, then, could the persistent and unreformed felon who stole this automobile be given a sentence of “not less than two years nor more than fourteen years” without rendering the statute ridiculous? The avowed purpose of the habitual-criminal act is to provide additional punishment for criminals who are convicted of a felony for a second and third time. To gauge the proper punishment by doubling the length of sentence imposed for some prior offense would frequently lead to absurd conclusions, just as it would do in this case if defendant’s interpretation of the statute were adopted. To "illustrate this point a little further: Suppose a first-time offender is convicted of murder in the second degree and given a sentence of twenty years’ imprisonment. Eventually he will be released, and suppose that in a moment of weakness he afterwards commits the relatively minor felony of betting in a common gaming house, selling lottery tickets, or the like, either of which would ordinarily carry a sentence of a year’s imprisonment. Should such second offense carry a sentence of forty years’ imprisonment because the poor wretch had once served twenty years for homicide? We do not now question the power of the legislature to enact a statute to that effect, but the court is under a solemn responsibility to avoid giving a fantastical interpretation to a deliberate legislative enactment.
In City of Independence v. Turner, 114 Kan. 731, 733, 220 Pac. 195, it was said:
“Where the purpose of the legislature is plain, the misuse or omission of a word or phrase will not defeat the evident purpose and courts are warranted in supplying words which are consistent with the context of the act and the manifest intention of the legislature.”
In Pfleiderer v. Brooks, 122 Kan. 647, 650, 253 Pac. 549, where a question of statutory construction was under consideration, Mr. Chief Justice Johnston, speaking for the court, said:
“It has been said that ‘a cardinal canon of construction, to which all mere rules of interpretation are subordinate, is that the intent, when ascertained, governs.’ (State v. Bancroft, 22 Kan. 170.) If a term is inappropriate or open to more than one meaning, we should look to- the context and give effect to the manifest intention of the legislature. ‘This (it has been said) is only making the naked letter yield to its obvious intention.’ ”
See, also, State v. Knoll, 69 Kan. 767, 77 Pac. 580; Coney v. City of Topeka, 96 Kan. 46, 49, 153 Pac. 506; State, ex rel., v. City of Hutchinson, 106 Kan. 532, 188 Pac. 433; Van Doren v. Etchen, 112 Kan. 380, 211 Pac. 144; Ball v. Oil & Gas Co., 113 Kan. 763, 216 Pac. 422.
In the present instance the legislative intention is plain and obvious notwithstanding a certain want of precision in the text of the statute. When a person is convicted of a felony, ordinarily the court would turn to the crimes act and impose on him the term of imprisonment therein prescribed. But if, after his conviction of a felony, it is shown to the court that the person thus convicted had once before been convicted of a felony, the term of imprisonment to be prescribed for the offense must at least be doubled. In imposing sentence the trial court need have no concern with the character of the former felony nor with the duration of the former sentence. Its only concern will be with the fact that the person to be sentenced had once before been convicted of a felony. In this case the correct practice was followed. Having been found giiilty of stealing the automobile, the punishment would have been five to fifteen years’ imprisonment but for the fact that he was shown to be an old offender, consequently he was properly ordered to be confined in the penitentiary for not less than double the time of' penal servitude which he would have had to undergo for stealing an automobile if this were his first conviction of a felony.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This case originated in a proceeding before the probate court of Allen county for the purpose of making a record of the contents of the will of the late Thomas H. Shoup, which had been mislaid or lost from the files of the court, pertaining to the probate of the will and the administration of his estate.
Shoup died testate on October 10, 1920. His will was duly probated; his widow functioned as executrix under the supervision of the probate court, and filed her final statement of account on Octo ber 1, 1922; notice of her application for the approval of her final settlement and discharge was not published until November 25, 1926, and she was discharged on December 28, 1926.
Some time in 1926 it was discovered by interested parties that the will of Shoup- was absent from the files of the probate court, and on November 2, 1926, Mary Ann Shoup, widow and executrix of Shoup, filed in that court an affidavit setting up the pertinent facts, the death of Shoup in 1920, his testacy, her appointment and qualification as executrix, the probate of the will, its contents, which in substance were a devise of forty acres of mortgaged land to herself, and legacies of one dollar each to his two daughters and a granddaughter, the payment of these legacies, and the settlement of the estate according to the terms of the will, and alleging that the will itself had been lost or misplaced from the files of the court.
On an ex parte hearing the probate court found all the facts as alleged in the widow’s affidavit, made a record of the contents of the lost will, and ordered that she be discharged as executrix and the surety on her bond released.
Some time in 1927 Mary Ann Shoup died testate, and the appellee, W. O. Boler, was named and qualified as her executor. On August 17, 1927, apparently on the possibility that the proceedings in 1926 to restore the record of the lost will of Thomas H. Shoup might be defective, Boler, executor, published a notice that on September 17, 1927, he would offer additional corroborating proof of the contents of the lost will of Shoup—
“Which will was offered, -proved and admitted to probate in the probate court of Allen county, Kansas, November 3, 1920; and additional proof of the execution of said will and of its contents, and of its presentation to the probate court of Allen county, Kansas; and of its being then proved and admitted to probate, and Mary Ann Shoup, his wife, being duly appointed executrix thereof; and proof that since that time the said will has been lost and cannot now be found; and ask fof orders of the probate court completing and correcting the records of said court concerning and relating to the said will and proceedings thereunder.”
The appellant, Lillian Ross Varnau, granddaughter ánd legatee of Shoup, and others appeared specially for the purpose of submitting to the court their objections to a hearing on any question set forth in the notice on the ground that Boler, executor of Mary Ann Shoup, had no legal capacity to invoke the court’s jurisdiction, and that the estate of Thomas H. Shoup had been fully settled and his executrix discharged, and that the statute of-limitations and laches barred the relief sought by Boler, executor, and that the publication notice was without validity, and the court had no jurisdiction of the subject matter.
These objections to the jurisdiction were overruled and the probate court heard the evidence touching the will and its contents, its probate and the authentication by the witnesses thereto, the facts of the administration of the estate according to the will, the payment of the legacies to Shoup’s two daughters and to this appellant, his granddaughter, and the depositing of their receipts for the payment of their legacies with the probate court. Attached to the final account of Mary Ann Shoup, executrix, filed October 11, 1922, were these receipts:
“I the undersigned have received one dollar as my part of T. H. Shoup estate. Annie Beaman.”
“I received SI, my share of my father, T. H. Shoup estate.
Gertie Boler.”
“Received of Mrs. Anna Shoup the sum of SI in regard to the terms of the will of T. H.' Shoup. Lillian Ross Varnau.”
The existing files of the probate court were ample to prove that there had been a will and that it had been duly probated. Indeed no material document pertaining to the administration of the estate of Thomas H. Shoup was missing from the files except the will itself, and its contents were abundantly established.
The probate court made the following order:
“And now [September 17, 1927], after hearing all the evidence offered, and after considering the same and considering the facts already known to the court, and the facts shown by the record, and considering' the purpose of the hearing, the probate court finds, orders and adjudges that the evidence offered be filed in the estate of Thos. H. Shoup and made a part of the record thereof; and that the findings here made by the court from the oral evidence offered are and become a part of the record of the said estate in this court, all for the purpose of more fully showing that the will of Thos. H. Shoup was fully admitted to probate in this court and that the real estate belonging to him when he died was by him devised to Mary Ann Shoup, his wife, by his said will, to wit: The northwest quarter of the southwest quarter of section 9, township 26, range 21, less two acres in the southwest corner, Allen county, Kansas; and that as executor of the said will of Thos. H. Shoup, she paid all the other bequests therein made to the persons entitled thereto, and that said persons, to wit, Annie Beaman, Gertie Boler and Lillian Ross Varnau receipted her for same and she filed the said receipts in her report in this court, where they now are on file.”
Lillian Ross Yarnau for herself and the other heirs of Thomas H. Shoup appealed to the district court. Boler, executor of the will of Mary Ann Shoup, filed a motion to dismiss the appeal on various grounds — insufficiency of transcript, no appeal nor appeal bond filed within the statutory time, and—
“4th. The affidavit of appeal transcribed in the transcript does not show facts sufficient to sustain an appeal. ...
“5th. The transcript shows that the persons seeking an appeal have accepted and receipted for the full share of the estate of Thos. H. Shoup belonging to them, prior to October 11, 1922, and are estopped from denying their said acts.”
The 'fourth ground of the motion was obviously good. There being no tangible basis for a dispute of fact touching the matters necessary to be established to justify the order of restoration and substitution, the probate court had jurisdiction to make the order complained of. Upon sufficient showing, a probate court, like courts of record generally — and perhaps all others — has inherent power to restore or substitute papers, files and records of the court which have been lost or destroyed. (34 Cyc. 606 et seq.) While the exercise of this power may be governed by statute, as in part it is in this jurisdiction (R. S. 60-3901 et seq.), yet our code expressly provides:
“Nothing in this act shall be so construed as to deprive any person of the right to proceed under the code of civil procedure, or by any other mode known to or recognized by existing laws for the substitution or restoration of any pleading or other paper which is or has been lost, destroyed, or withheld, and the remedy herein prescribed shall be deemed to be cumulative.” (R. S. 60-3908.)
In 17 R. C. L. 1173 et seq. it is said:
“Independent of statutory authorization, every court of record has a supervisory and protecting charge over its records and the papers belonging to its files, and may at any time direct the correction of clerical errors, or the substitution of papers in case the originals are purloined or lost. This power is a matter of necessity, whether the loss occurs while the cause is in fieri, before it has progressed to final judgment or after such judgment has been rendered, and whether the loss is of the whole record or of papers which when it is finally made up will constitute a part of it. In making such corrections or substitutions, the clerk is under the control and authority of the court; and the matters thus substituted, by order of the proper court, become records of equal validity to those which are destroyed.
“. . . Lost papers which constituted a part of the judicial record may be supplied by the court at any time, as well after as during' the term. An application to supply a lost writ, declaration, or other part of the record, if accompanied by proof of loss, is, in general, addressed to the discretion of the court, and as such, the decision of a court of original jurisdiction cannot be reexamined in an appellate court on a writ of error.”
Passing this phase of the appeal to note the argument of counsel for appellants, it is emphasized that in the proceedings before the probate court no will or copy of the will of Thomas H. Shoup, deceased, was exemplified. Of course not. This was not an action to probate a lost will, but to restore a lost document belonging to the files of the probate court. That it happened to be the will of Shoup did not create a different situation than the loss or destruction of any other paper or record would have done. The nature of the proceeding being what it was, the appellants’ argument and citations touching the consequences of willfully or negligently withholding a will from probate for more than three years are altogether beside the point.
The fifth ground of the motion was also meritorious. Notwithstanding the disappearance of the will from the files of the probate court, the related papers remaining in the files showed beyond cavil that the appellants had accepted the legacies bestowed on them by their ancestor’s will. They were therefore in no position to question the factual existence of the will, nor its probate, nor the propriety of the proceedings instituted to restore it to the files by an order of substitution, restoration, or other proper chronicle of its contents. (Medill v. Snyder, 61 Kan. 15, 58 Pac. 962; 40 Cyc. 1893 et seq.; 28 R. C. L. 329, 331.)
The trial court dismissed the appeal. Perhaps a more precisely correct disposition of it would have been to affirm the judgment on the record submitted by the appellants. However, it is not suggested that if instead of dismissing the appeal the trial court had considered anew the evidence adduced in the probate court, including the evidence which inhered in the probate court’s files concerning the will, its probate, the executor’s final account, the appellants’ acknowledgments of receipt of their respective legacies, and the other probative data of convincing character, it might have come to a different conclusion from that reached by the probate court. Consequently it would serve no purpose to remand this cause with instructions to the district court to set aside its judgment of dismissal and to enter judgment in favor of the appellee and against the appellant.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The question presented by this appeal is one arising under the workmen’s compensation act before it was revised in 1927, and speaking generally, relates to disposition of a pending arbitration proceeding on death of a dependent widow, who was guardian of her minor children, also dependents.'
James D. Pursley, an employee of J. H. Liggett, received an injury, and later died. On March 31, 1927, his widow, Jennie L. Pursley, for herself and as guardian for her children, James and Ruth, made claim for compensation and demand for arbitration, in writing. On April 6 Liggett acknowledged receipt of the claim, and consented to arbitration. On August 18 attorneys for Liggett and for the dependents stipulated in writing that V. Harris should be arbitrator, and should determine all questions of fact relating to the claim for compensation. A hearing was had before the arbitrator, and the matter was finally submitted to him on August 29. Pursuant to statute, the parties stipulated the arbitrator might have until November 1 to file his award. The award was filed on October 29. The award denied compensation on the ground the workman’s death did not result from the injury which was the basis of the claim for compensation.
The dependents had two attorneys, one in Wichita and one in El Dorado. From information not obtained from his associate the El Dorado attorney concluded agreement to arbitrate had failed, and on April 30 commenced an action for compensation. The petition alleged Liggett refused to arbitrate. This was not true, and an arbitrator was subsequently chosen who proceeded as stated above. Necessarily, the action predicated on refusal to arbitrate was superseded.
The agreement extending time in which the arbitrator might file his award was signed before October 9, but was not sent in for filing until October 15. On October 9 Mrs. Pursley died. Afterward Lulu Renfro was appointed administratrix of Mrs. Pursley’s estate and guardian of the children. In 1928 the proceedings were revived in the name of Lulu Renfro as administratrix and as guardian. Liggett moved for judgment on the Harris award or in the alternative that the arbitration proceedings be referred to him for reconsideration and filing of his award. The court held the whole arbitration failed. Nothing that had been done was binding on Renfro, administratrix and guardian, and E. W. Grant was appointed arbitrator.
When Mrs. Pursley died right of her children to compensation did not cease, and her right to compensation due and unpaid at the time .of her death was not extinguished. Using the terms of the civil code merely to make the meaning clear, if these “causes of action” did not “survive,” the whole affair is at an end. Lulu Renfro as administratrix and as guardian does not come into the proceeding as a stranger possessing original independent rights. If she does she has made no claim for compensation in any capacity and the whole affair is at an end.
So far as the children were concerned, all that happened when their mother died was that they had no one to represent them until another guardian was appointed. When á successor to the former guardian was appointed the successor merely came into the proceeding as a substituted representative. So far as the widow was concerned, at her death there was nobody to press or protect her claim until a personal representative was appointed. Her personal representative merely took her place in the arbitration proceeding.
The death of Mrs. Pursley did not cancel her agreement as widow and guardian to arbitrate, her selection of an arbitrator, her appearance at the hearing, or her agreement to extend time for filing the award. She was bound in her two capacities by everything done with respect to arbitration up to the time of her death.
By agreement to arbitrate and election of an arbitrator the employer and the dependents brought into existence a special tribunal which the statute authorized them to create, having jurisdiction to determine the claim for compensation. (Crawn v. Packing Co., 111 Kan. 573, 576, 207 Pac. 793.) The statute providing the remedy of arbitration by agreement is complete in itself, does not affiliate with the general arbitration statute, and is to be liberally construed and flexibly applied. (Roper v. Hammer, 106 Kan. 374, 187 Pac. 858.) The statute contains no hint that the incident of death of a party, whether employer or dependent, destroys the tribunal or invalidates steps in the arbitration proceeding completed at the time death occurred.
In this instance the arbitration proceedings were merely suspended until the dependents could be properly represented. Filing the award had no effect except to comply formally with the agreement respecting time of filing. The award itself did not affect interests of the dependents. The administratrix and new guardian merely entered an arbitration proceeding which had proceeded to submission of the cause, and all that remained to be done was for the parties or the court to fix a time within which the arbitrator should file an award. This would be quite clear to the representative of the dependents if the employer had died and an award filed as this award was filed were satisfactory to the dependents.
The judgment of the district court is reversed, and the cause is remanded with direction to proceed as indicated.
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The opinion of the court was delivered by
Hutchison, J.:
The defendant in this case appeals from a conviction and sentence under R. S. 21-937, of which the portion applicable to this case is as follows:
“Any person who shall persuade, induce, entice or procure or assist in persuading, inducing, enticing or procuring any female person for the purpose of prostitution, fornication or concubinage, ... to leave the state or to go from one place to another within this state, for the purpose of prostitution, fornication or concubinage shall be deemed guilty of a felony.”
The charging part of the information was as follows:
“That on the 21st day of June, 1928, at the county of Harper in the state of Kansas, Joe Speer did then and there unlawfully and feloniously persuade, induce, entice and procure one Gussie Scott, a female person, under the age of eighteen years, to go from the city of Anthony, Kansas, to a point in the country for the purpose of fornication.”
The complaint was signed by an uncle of Gussie Scott named in the information. She was not present and did not testify at the trial, and evidence was offered of various unsuccessful attempts on the part of the state to find her.
The demurrer of the defendant to the evidence of the state was overruled, and the defendant stood on the demurrer and offered no evidence; neither did he cross-examine any of the state’s witnesses. The jury was instructed and brought in a verdict of guilty-,': and defendant took his appeal after the overruling of the motiori for new trial.
The appellant insists that it was error to overrule the -motion for new trial because the evidence was not sufficient to prove the offense charged. There was no direct evidence of the immoral purpose of the trip other than that which might be drawn from the facts and circumstances. This might be sufficient so far as that feature of the offense is concerned, since it has been held to be unnecessary that any immoral conduct take place if there exists the specific immoral purpose. (State v. Rieman, 118 Kan. 577, 235 Pac. 1050.) There was evidence of conversations with the defendant as to his intimate and sexual relation with girls and with this girl, but not on this or any other trip. It is insisted by the appellant that there is absolutely no evidence that the defendant persuaded, induced, enticed or procured Gussie Scott to go with him from Anthony to a point in the country. There was evidence that this girl and another girl went in defendant’s car with him and Horace Gillett on the night of June 21, 1928, about three and one-half miles southwest of Anthony and returned about 12:30 at night; that the Scott girl drove the car; that defendant sat beside her and Horace next to him and the other girl sat on Horace’s lap; that on the trip the Scott girl and defendant kissed each other; that no one got out of the car and no improper or immoral talk or conduct occurred on the trip; that these four had made similar trips before that time. The other girl testified that the Scott girl had asked her to go on this trip and she heard the Scott girl call up the defendant on the telephone and tell him that they would go that night; that the Scott girl came to her home that night and they went to the camp grounds where they met the defendant and Horace and came to the filling station of the defendant and started to the country from the filling station; and that the Scott girl drove the car all the way out and back to town. Even if the immoral purpose be conceded, where is the evidence of persuading, inducing, enticing or procuring? It was held in State v. Rieman, supra,- that.“the word procure means to bring about, effect, cause.” The defendant must be shown to have done or said something to bring about, effect or cause the girl' to go with him on the trip. In a later case it was held:
“Where defendant was charged in a single count with persuading a female person to go from one place to another for the purpose of prostitution and concubinage, contrary to R. S. 21-937, the gist of the offense was that of getting her to go from one place to another for an immoral purpose.” (State v. Clark, 125 Kan. 791, syl. ¶ 1, 266 Pac. 37.)
If the gist of this offense is that of getting Gussie Scott to go from-one place to another for an immoral purpose-, what did defendant say or do in getting her to go? There is nothing in the record before us that shows this very gist of the offense. On the contrary, all the evidence there is on the subject aside from the use of defendant’s car is that the Scott girl did something toward getting the defendant to go- — she telephoned him.
We are compelled to conclude that there is not sufficient evidence to establish or prove that the defendant procured or did or said something toward getting the Scott girl to go with him as charged in the information, and no evidence whatever showing that he persuaded, induced or enticed her to go. The demurrer to the evidence should have'been sustained.
The judgment is reversed.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal and cross appeal from a judgment of the district court of Montgomery county on a workman’s compensation case.
The plaintiff is a corporation which owns and operates a zinc smelter at Cherryvale.
The defendant, Joe Hamer, for more than a year immediately prior to September 22, 1925, was an employee of plaintiff. On that date his left arm was severely burned by an explosion of molten metal, which totally incapacitated him for some time. Without an arbitral or other formal award of compensation plaintiff supplied Hamer with medical treatment at an expense of $150 and made periodical payments until it had paid him a total of $2,289.45. It then brought this action narrating the facts and alleging that Hamer’s burns healed in a few weeks, but that he had neglected to exercise his arm so that it was swollen from disuse. It alleged plaintiff and defendant could not agree as to the extent of the injury nor concerning the character and quality of his disability, the amount still due, if any, or the amount Hamer was able to earn. It alleged it had paid defendant a greater sum as compensation than the weekly amounts prescribed by statute, and that it had always stood ready to make a lump-sum settlement, less the legal deduction it was entitled to. Plaintiff’s petition concluded, in part, thus:
“Wherefore, the plaintiff makes this written application to the court that the court act as an arbitrator and to hear and determine the matters in controversy herein, or, that if the court does not choose to arbitrate said matter, then the court appoint an arbitrator as provided by law in such cases and that the court, or arbitrator determine the amount of compensation, if any, due, the character and quality of the disability of the defendant, the period for which payment of compensation should have continued, and the amount of earnings the defendant is able to earn. . . .
“That the plaintiff have a further order of the court, or the findings of the arbitrator, relieving the plaintiff from further payment of compensation, that if in case the arbitrator or the court would find there is any further compensation due, then that said plaintiff be given a deduction or twenty per cent of said amount heretofore paid to the defendant.”
Defendant’s answer admitted his former employment by plaintiff. He also recited the extent and severity of the injury he had sustained in plaintiff’s service, and—
“That he is wholly unable to use his left arm, shoulder and side . . . defendant’s left shoulder has become atrophied, shrunken and wasted, the tonicity of the muscles attached between defendant’s torso and left arm permanently partially disabled, . . . the use of the muscles and ligaments in defendant’s neck and left side is permanently partially impaired in such manner that when defendant attempts to use his right arm, he suffers excruciating pains across his shoulders, . . . wholly preventing him from using his right arm in work, except for very short periods of time.”
Defendant concluded his answer thus:
"... defendant prays that the court hear and determine the matters in controversy herein between plaintiff and defendant, and that if the court does not choose to hear and determine said controversy, then that he appoint an arbitrator, as provided by law, with full authority to determine the amount of compensation due defendant, the character and quality of his disability and the period for which payment of compensation should be paid to defendant.”
On the pleadings thus summarized the parties presented their evidence. This was followed by findings of fact and conclusions of law, but whether these were made by the court or by its judge sitting in the capacity of an arbitrator is one of the questions involved in this appeal. Passing that point for the nonce, the findings summarized were that defendant’s average weekly wages had been $21.70; that he had been totally disabled six weeks; that he had been fully paid therefor under the statute; that after his total disability ceased he was capable of earning $2 per week; and—
“5. That as a result of the burns at the time of the injury, and for a considerable length of time, the defendant, Hamer, was unable to use his arm, and as a result, either of the disuse, or of infection of the joint caused by the burn, which the court is unable to determine from the evidence, the shoulder and joint became stiff and the muscles of the arm and shoulder became atrophied.
“6. As a result thereof the defendant, Hamer, will be permanently partially disabled.
“7. That such condition of said muscles and arm is not caused by any unreasonable refusal of the defendant to submit to a surgical operation.”
“Conclusions op Law.
“1. That there remains due the defendant compensation for the remainder of the time, $2,721.85, in a lump sum with interest at six per cent, from January 15, 1929.”
Plaintiff filed a motion asking for additional findings and to be allowed the statutory discount of 20 per cent on the amount of compensation allowed. The court modified its original findings by eliminating that which referred to his future earning capacity and revised the sixth finding thus :
“6. As a result thereof the right arm of the defendant, Hamer, became and is, and will ever remain, wholly useless and an impediment rather than an aid to the defendant, and he will be permanently partially disabled.”
The court also reduced the award to $2,621.85. Plaintiff’s application to be allowed a 20 per cent discount by satisfying the award in cash was denied and judgment was entered for $2,621.85 to be paid in a lump sum without deduction.
Plaintiff appeals. Dtefendant also appeals, contending that he should have been allowed a further sum of $2,278.50 for the loss of the arm itself, on the theory that its utter uselessness was equivalent to its specific loss.
Plaintiff’s foremost contention is that the trial court took an entirely erroneous view of the nature of the proceedings. It insists that it did not invoke the court’s jurisdiction to try a lawsuit between it and the defendant, but to appoint an arbitrator or serve as an arbitrator in a proceeding under the compensation act. While plaintiff asked for an arbitrator or that the court itself serve in that capacity, it is not quite clear that this aspect of the matter was specifically called to the trial court’s attention at the proper time. A significant recital in the judgment roll reads:
“Now, on this 8th day of November, 1928, . . . this cause comes on regularly for hearing pursuant to assignment. . . . Thereupon, both parties duly waive a jury and agree to submit said cause to the court for final hearing and determination. . . .”
That recital suggests very strongly that the matter of procuring the services of an arbitrator had been dropped. The proceedings are spoken of as a cause which had been regularly assigned. A jury was formally waived, which indicates that the parties thought they were trying a lawsuit, not a proceeding before an arbitrator. The journal entry also states that the parties agreed to submit the cause to the court for final determination. That recital would be inapposite to proceedings before an arbitrator or to a court merely sitting as an arbitrator.
But what practical difference did it make whether the presiding judge of the district court misconstrued the capacity in which he was asked to function in this case — as an arbitrator or as a judge? None, that we can see, so far as concerns the ascertainment of the facts upon which the plaintiff’s, liability to pay compensation depends. If the matter had been submitted to an arbitrator, either party aggrieved might have had a limited review before the district court; and the findings and award might be vacated or modified by the court. While that technical routine may not have been consciously followed by the court, yet that is virtually what did occur after plaintiff filed its motion for additional findings and for a new trial. Surely plaintiff did not then hold the view that the proceedings were before the court or its presiding judge as a mere arbitrator, otherwise it would not have asked for a new trial — that being foreign to the practice before an arbitrator.
But from the inception of the proceedings there was one matter which plaintiff never did lose sight of and never waived; that was its statutory right to satisfy any award against it by paying 80 per cent thereof in cash. (R. S. 44-525, 44-531.) Plaintiff had never been in default in paying compensation to defendant. It had never declined to arbitrate. It always stood ready to pay whatever was required of it. To determine that point, whether by arbitrator or by court, plaintiff instituted this proceeding. That was the substance of the matter to be decided and all that was to be decided; and whether the sum of $2,621.85 which the order of court required the plaintiff to pay defendant be designated as an award or as a money judgment, if it is to stand at all it is subject to a 20 per cent reduction — a statutory discount which the legislature bestows upon an employer who manifests a whole-hearted readiness to do for his injured workman all that the compensation law requires of him. (R. S. 44-531, 44-529.) Nowhere in the compensation act which governed this case was there any provision for requiring an employer to pay a lump-sum award or lump-sum judgment where that employer has not been at fault or recalcitrant in the slightest degree. Lump-sum awards without deductions are made for specific injuries. (R. S. 44-510.) Lump-sum awards are also given by trial courts at their discretion in cases where the injured workman had to take the initiative to get what he was entitled to. (R. S. 44-534.) But here the employer itself took the initiative to ascertain what, if anything, it ought to pay after already paying its workman $2,289.45.
Passing to other matters complained of by appellant, finding No. 5 is criticized as uncertain and in conflict with finding No. 7.' This court can discern no conflict. Touching its alleged uncertainty, it is immaterial whether the uselessness of the arm was primarily caused by the burning or secondarily by prolonged disuse occasioned by unbearable pain which was a consequence of the burning. (Bidnick v. Armour & Co., 113 Kan. 277, 214 Pac. 808.) Plaintiff calls attention to the allegations of its petition and the evidence in accord therewith to the effect that it had offered to provide defendant with light work which he could easily do which would enable him to use his arm and thereby restore its functions. But that attitude on the part of plaintiff, while commendable, could not defeat de fendant’s right to compensation since he testified that it pained him too severely to do any work, and the trial court, or the trial judge as arbitrator, gave that testimony full credence. Under all the evidence on this phase of the case this court cannot say that it was defendant’s duty to undergo an operation to break up the stiffened joints of his arm, nor was it satisfactorily shown that such an operation would be very likely to be successful. (Gilbert v. Independent Construction Co., 121 Kan. 841, 250 Pac. 261.)
Plaintiff projects another difficult problem for this court to solve. Defendant is presently accorded an award or judgment of $2,621.85. He had already received the aggregate sum of $2,289.45 before these proceedings were begun. Plaintiff’s argument is to this effect: Based upon the findings of fact, the compensation to which defendant was entitled should be governed by subdivision 12 of section 3 of the compensation act then in force (R. S. 44-510), to wit: “(12) For the loss of an arm, 50 per cent of the average weekly wages during 210 weeks.” Hamer’s average weekly wages had been $21.70. Half of that amount, $10.85, for 210 weeks would be $2,278.50, all of which and somewhat more had already been paid. Reasoning therefrom, plaintiff says that the award or judgment for $2,621.85 in addition to what it has already paid was manifestly erroneous. But while it i's not clear on what basis the award or judgment of $2,621.85 was made, it is clear that no part of the periodical payments aggregating $2,278.50 paid to defendant prior to plaintiff’s application for the appointment of an arbitrator, was paid for the loss of defendant’s arm, but for incapacity occasioned by the burning and its consequence. Counsel for defendant suggests “that the trial court was not required to perform an arithmetical calculation to demonstrate the correctness” of his award or judgment. That suggestion is too broad. The trial court or arbitrator may take any reasonable view of the facts supported by evidence, but once those facts are thus ascertained the findings ought to justify the award, and the legality and accuracy of the award should be readily determinable from the findings. Here it is not clear from the findings on what basis an award of $2,621.85 was arrived at. Defendant would justify it on the theory that it is the result of a computation of a balance of some unspecified award for periodical payments for permanent partial incapacity after giving credit to plaintiff for the $2,289.46 already paid to defendant. With that as a cue, and by consulting the findings of fact, we may determine for ourselves what the award ought to be, viz.:
Average weekly wage ............................................. $21.70
Sixty per cent of $21.70........................................... 13.02
Period of total disability (less one week).......................... 5 weeks
Five weeks at $13.02.............................................. 65.10
Periodical payments already made................................. 2,289.45
Deduct .......................................................... 65.10
Balance to credit of plaintiff as payments for permanent partial - disability ..................................................$2,224.35
410 weeks at $13.02...............................................$5,338.20
Credit as above................................................... 2,224.35
Total payments yet to be made.................................$3,113.85
Twenty per cent discount for lump-sum payment................... 622.77
Net lump-sum award should be..................................$2,491.08
We do not fail to note that the weekly award for permanent partial incapacity is the same as that allowed for the first five weeks of total incapacity, but that anomaly arises from the fact that the court struck out its preliminary finding that the workman had an earning capacity of $2 per week. By so doing the court in effect held that he had no earning capacity.
Touching the cross appeal, a majority of the court is not favorably impressed with the contention that the defendant was entitled to two separate awards — one for permanent partial incapacity and another for the permanent loss of the use of the arm. The findings of the trial court do not warrant an interpretation that the defendant sustained two distinct injuries so as to make room for the operation of the rule announced in Stefan v. Elevator Co., 106 Kan. 369, syl. ¶ 3, 187 Pac. 861, and later analogoús cases.
It follows that so far as concerns the cross appeal the judgment of the district court is affirmed; and in plaintiff’s appeal the judgment should be modified and reduced from $2,621.85 to $2,491.08. Thus modified, the judgment will be affirmed. The costs of the appeal and cross appeal should be divided.
It is so ordered.
Dawson, J.
(dubitante): It is not clear to me whether the defendant has suffered a permanent partial disability aside from the permanent loss of the use of his arm or not. If not, his compensation is explicitly governed by the statute:
“(12) For the loss of an arm, 50 per cent of the average weekly wages during 210 weeks.”
“(22) Permanent loss of the use of a hand, arm, foot, leg or eye, as a direct result of an injury, shall be considered as the equivalent of the loss of such hand, arm, foot, leg or eye.” (R. S. 44-510, subdiv. 12 and 22.)
This would entitle defendant to $2,278.50, neither more nor less.
If the findings of fact mean that defendant has suffered a permanent partial incapacity by a stiffness in his shoulder joint and through atrophy of the shoulder muscles, as well as in the permanent loss of the use of his arm (and the findings are fairly susceptible of that construction), then I cannot understand why the trial court or this court should deny him compensation therefor according, to the rule announced in Stefan v. Elevator Co., 106 Kan. 369, syl. ¶ 3, 187. Pac. 861; Lane v. Sonken-Galamba Corporation, 119 Kan. 256, 237 Pac. 875; and Sims v. Consumers Bread Co., 125 Kan. 747, 265 Pac. 1114.
In all other respects I concur in the opinion of the court.
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff sued defendant on a claim for $6,000, the nature of which will have to be stated at some length:
The late N. J. Bishop, grandfather of this plaintiff and father of this defendant, was a long-time resident of Washington county. He had a family of four sons and one daughter and had accumulated considerable property. His wife died some years ago, and as he grew old he began to divide his property among his children. One son, John,.had died leaving a widow and three children. The aged father gave John’s widow and her three children a quarter section of land. He apportioned other properties to his sons. His daughter, Clara, had also died some years ago, leaving one child, Harry Billings, plaintiff herein. In the last few years of his lifetime N. J. Bishop often declared his intention to give plaintiff what would have been his mother’s proportionate share of his estate if she had survived him, and he had frequently said that share would be eighty acres of land or $8,0,00 in money.
About March 1, 1926, plaintiff, who was living in Ellsworth and operating a meat market there, received a telegram from defendant notifying him of his grandfather’s illness. Plaintiff set out immediately for Washington county and on his arrival he found his grandfather in bed. He had a conversation with his grandfather in which the latter stated that he was going to give plaintiff $2,000 at that time and $6,000 later on. The defendant, Oliver O. Bishop, known in the record as “Ollie,” came into the room and the grandfather told Ollie the substance of this conversation and “told him [Ollie] to go ahead and pay this $2,000 now.” The grandfather said he was going to use the balance of $6,000 in “the business” for a while.
“Q. And what did your grandfather say to Ollie at that time? A. He told him he was going to give me part of my estate right now so I could go ahead and put in groceries. He was going to give me $2,000 of it right now and how to do it; that he was going to write me a check for $200 that he still had in the bank personal money; that he had $800 worth of bonds that he was going to give to me to make a thousand, and for Ollie to give me a check out of the other funds for a thousand dollars; that he was going to use the balance of it in the business for a while, and Ollie said, ‘All right. I will do it.’ ”
Two days later, on March 3, 1926, the grandfather died. After the funeral defendant gave plaintiff his personal check for $1,200, and some three months later the $800 worth of bonds which had belonged to the grandfather were also delivered to him.
As nothing further was forthcoming plaintiff brought this action against his uncle' Ollie on the theory that the latter had bound himself to pay an additional $6,000 as the balance of plaintiff’s share of his grandfather’s estate which had been so often promised to him by the grandfather in his lifetime. It was part of plaintiff’s theory that Ollie had possession of sufficient property of the grandfather to pay the $6,000 and that the fair interpretation of the conversation between the grandfather and Ollie prior to the latter’s death was that Ollie acknowledged a trust which he bound himself to discharge, and that he was liable to plaintiff accordingly. .
On joinder of issues tendered by plaintiff’s petition the cause was tried. Plaintiff’s evidence was as set out above, with additions which tended to show that Ollie and his father were extensively engaged in an agricultural partnership of some sort and in stock feeding and the like. It also tended to show that within a few years Ollie had become the title holder of considerable land which belonged partly at least to his father, and that Ollie’s apparent personal estate was a good deal larger and his father’s estate a good deal less than some members of the family anticipated. Certain other lawsuits or judicial proceedings were instituted more or less designed to get to the bottom of these matters. There was some testimony that Ollie said to one of his brothers that his father’s business affairs were so arranged as to be subject to his (Ollie’s) discretion. “I have things fixed just the way I want them and it is up to me whether you get a damned cent or not.”
At the conclusion of plaintiff’s evidence, the trial court sustained a demurrer thereto, and judgment was entered for defendant.
Plaintiff appeals, contending that a completed gift inter vivos of $8,000 was established by the conversation between the plaintiff and his grandfather, $2,000 of which was represented by the $800 in bonds and by defendant’s check for $1,200, and that the remaining $6,000 was merely left in defendant’s hands on the latter’s acknowledgment of a trusteeship to that effect and his agreement that he would pay it sometime to the plaintiff. We fail to see anything in plaintiff’s evidence to evidence a trust, nor can we discern language or conduct on the part of defendant which tends to show a promise to pay plaintiff $6,000. The fair import of the grandfather’s language to Ollie was a direction to him to pay plaintiff $1,000 in cash. And Ollie’s response: “All right, I’ll do it,” signified his readiness to do as he was told. Moreover, the language of the plaintiff’s grandfather was expressly to the effect that he did not intend to give plaintiff the entire $8,000 at the time they had their last conversation. The donor’s intention was quite the contrary. Of course, he did not then contemplate his speedy dissolution. “He [grandfather] said he was going to use the balance in the business for a while.” Presumably that was the partnership business in which the dying man and his son Ollie were -engaged, but whatever else the grandfather may have meant, he made it clear that a completed gift of the entire $8,000 was not then intended. And the law of such gifts is simple and all to one effect. To effect a gift inter vivos there must be an immediate transfer and delivery of the gift by the donor and its acceptance by the donee. A merely avowed intention to make a gift which is neither preceded nor followed by its actual or constructive delivery and acceptance is ineffective to confer title. (Gallagher v. Donahy, 65 Kan. 341, 69 Pac. 330; Ariett v. Osage County Bank, 120 Kan. 286, 242 Pac. 1018, and citations; Saxon v. Linscott, 123 Kan. 374, 255 Pac. 50.)
On behalf of appellant it is suggested that his claim against his defendant uncle could be supported on the theory of a novation— as if the grandfather had owed the plaintiff $6,000 and that defendant agreed to be substituted as debtor to the plaintiff. But the grandfather was not indebted to plaintiff, consequently the theory of novation is too nebulous for .discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is from an order of the trial court granting a new trial, where the court had previously sustained a motion of the defendant to take the case from the jury and render judgment for the defendant.
Appellant insists that it was error to grant a new trial when the motion to take the case from the jury and render judgment for the defendant was properly sustained, and urges here that there can be no question as to its being the proper and only ruling that could have been legally made. It must be readily conceded that if there can be no question as to the ruling on the former motion being absolutely correct and legal, it should not have been disturbed by the granting of a new trial, as the rights of the parties would not be substantially affected. (R. S. 60-3001.) But if there are any reasonable grounds for questioning or doubting the correctness of the ruling or its application to the facts involved, then it is not error for the trial court to grant a new trial.
“Where a demurrer to the evidence of the plaintiff is erroneously sustained, and the plaintiff files a motion for a new trial, the court should grant the same.” (Mo. Pac. Rly. Co. v. Goodrich, Adm’r, 38 Kan. 224, syl. ¶ 2, 16 Pac. 439; see, also, City of Sedan v. Church, 29 Kan. 190; Busalt v. Doidge, 91 Kan. 37, 136 Pac. 904; Stillie v. Stillie, 115 Kan. 420, 223 Pac. 281.)
The motion to take the case from the jury and render judgment for the defendant was based, as stated in the motion, upon the ground that “the testimony of plaintiff himself conclusively shows an accord and satisfaction of the claim of said plaintiff against this defendant sued upon in this action.” This motion was made and sustained during the taking of plaintiff’s testimony, and according to appellant’s theory of the case is strongly supported by the cases of Neely v. Thompson, 68 Kan. 193, 75 Pac. 117; Burger v. First Nat’l Bank, 124 Kan. 23, 257 Pac. 979; Hoop v. Kansas Flour Mills Co., 124 Kan. 769, 262 Pac. 544; holding in effect that where there is a dispute between a debtor and a creditor as to the amount of the debt, and the debtor sends a check stating in letter or otherwise his intention for it to be in full payment of the debt or claim, the acceptance of the check by the creditor is a complete accord and satisfaction of the claim regardless of the protest or failure of the creditor to sign the formal receipt inclosed acknowledging full satisfaction. There is no disposition to question this rule, but the appellee points out to this court, as he doubtless did to the trial court when he presented his motion for a new trial, that there are two claims here involved, making a confusion as to whether only one or both claims were being settled by the payment and acceptance, and urges, as was held in Sigler v. Sigler, 98 Kan. 524, 158 Pac. 864, that an accord and satisfaction “must be consummated by a meeting of the minds of the parties.” Appellant consistently urges that the payment and settlement was of both claims, while the appellee as emphatically insists that it was the exact amount of one claim and only intended as a settlement of one of the two claims. It is not necessary for us to go into the facts of the case except to determine whether there was an open question as to what the payment and the accord and satisfaction covered, and whether there existed an issue of fact which should have been submitted to the jury.
The action is for damages for breach of an oral and a written contract by the failure of the defendant to accept and take from plain tiff all the crushed rock needed for the building of a certain road project, alleging that defendant accepted from plaintiff only 2,000 of the 12,000 cubic yards of crushed rock used on the project, instead of the entire amount, the profit of the plaintiff being 50 cents per cubic yard. The written contract provided for the withholding of 10 per cent of the price until completion of the work. Plaintiff says that the payment of $122.73, which was made and accepted, was the balance of the 10 per cent held back as per contract, whereas defendant says it was in full of all claims due plaintiff. The language used in the receipt sent with the check and not signed by plaintiff is such as to enable counsel on both sides to present very plausible but widely different constructions as to its meaning and its application to only one or both claims.
We cannot agree with the appellant that there is no question here for a jury and that the court in taking the case from the jury did the only thing that could' properly have been done under the facts and circumstances of the case.
“To constitute an accord and satisfaction, the agreement that a smaller sum shall be accepted in discharge of a larger one originally claimed must have been entered into by the parties understanding^ and with unity of purpose.” (Matheney v. El Dorado, 82 Kan. 720, syl. ¶ 1, 109 Pac. 166. See, also, Harrison v. Henderson, 67 Kan. 194, 72 Pac. 875; Sigler v. Sigler, 98 Kan. 524, 158 Pac. 864.)
We find no error in the granting of a new trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
Two original proceedings in mandamus have been consolidated to be heard and tried together.
The first case was brought by the Fidelity National Bank and Trust Company against the board of supervisors of drainage district No. 1 in Lyon county, and recently the county clerk of Lyon county was made a party defendant. This case involves the question of the right of the plaintiff to a levy of a tax on the land in the drainage district to pay the plaintiff for money borrowed to meet the necessary cost and expense of the organization and incorporation of thb district, and to require the defendant board and the county clerk to levy a tax on the land in the drainage district to repay the money borrowed for that purpose by the defendant board of supervisors.
The other case was filed more recently and by three persons constituting a firm engaged in the practice of law, to procure an order of this court requiring the defendant board of supervisors of the drainage district to take the necessary preliminary steps and to levy on the land in the district a tax sufficient to provide for the payment of two claims for attorney fees and expenses for services already rendered by them for the defendant board and approved by the board.
In each case the defendant board filed a motion to quash the alternative writ and also an answer, and the county clerk filed a motion to quash the alternative writ in the first case and an answer. The answers, however, raise only questions of law and will be considered in connection with the motions to quash.
The first case was here before, and the opinion was filed January 12, 1929, and reported in 127 Kan. 283, 273 Pac. 425, the county clerk not then being a party defendant. It is here now after the rendition of the opinion to compel the board of supervisors to take the necessary preliminary steps for the levy of a tax, and the county clerk to levy such tax on the land of the drainage district to pay the money borrowed.
Counsel for all parties have in a measure reargued in both these cases many of the questions involved and decided in this earlier case. We have fully considered such reargument, but are not persuaded that the opinion heretofore rendered- should be reversed, changed or modified; neither do we think it will serve any good purpose in this opinion to again discuss or restate our reasons for adhering to the conclusions therein reached.
Because we expect in the first case to take up the questions involved and consider them only from the point where the opinion in the first case left them, and in the second case to apply the facts therein to the law, including that announced in the decision in the first case, it will be helpful to set out and state herein the decision reached in the former hearing, as expressed in the three paragraphs of the syllabus.
“Section 24-621 of the Revised Statutes authorizes drainage districts to borrow $5,000 to pay for the organization and incorporation ,pf drainage districts and to pay other legitimate charges and expenses incurred, and impliedly authorizes the levy of a tax to repay the money borrowed, although the drainage project is abandoned on the filing of the report of the engineer employed to make the survey.
“Such a tax as is mentioned in the first paragraph of this syllabus may be a percentage tax levied on all the land in the drainage district according to. its value.
“Under the circumstances mentioned in the first and second paragraphs of this syllabus, when the organization of the district, the employment of an engineer, his report, the borrowing of the money, and the failure to pay and! to levy a tax to provide funds with which to pay the amount borrowed are admitted, it is not necessary that the claim be reduced to judgment before a peremptory writ of mandamus will issue.”
After the decision in the first case was rendered in January, 1929, nothing effective seems to have been done by the defendant board until August 24, 1929, when a resolution was passed by the board making a tax levy of three mills upon the real property within the drainage district, which resolution was on that date duly certified and delivered to the county clerk of Lyon county. Because nothing was done by the county clerk with reference to making the levy, the plaintiffs on October 17, 1929, made an application to this court in the same case to make the county clerk a party defendant and for an alternative writ against the defendant board and the county clerk, ordering and directing them to make the levy. It is this alternative writ that is now before us on motions to quash the same.
The first two points discussed in the bridfs, viz., has the board power to levy a tax, and what property shall be taxed, are answered by the former decision, the first in the affirmative and the second by the statement in the opinion that it “should be a percentage tax levied on all the land in the district according to its value in money.” It might be said, incidentally, that the levy approved in the former opinion was not under R. S. 24-618, because that only prescribed the plan of levy for a district that is a going concern. This is a levy for the organization expense of an abandoned enterprise. Neither is it a levy under R. S. 79-402. This drainage district was organized under R. S. 24-601 to 24-604, inclusive, by the action of the landowners in the district, who later have abandoned the project. These landowners are the ones who have set the wheels in motion and incurred this expense, and because they chose to go no farther with the project it cannot be collected on the basis of benefits received. Some may have opposed the scheme from the beginning and protested, but R. S. 24-602 and 24-603 define their rights and privileges which could thereunder have been heard, adjusted and terminated. It affects the owners of more than 18,000 acres in Lyon county, who more than five years ago organized this district, doubtlessly with the hope and prospect of benefiting their property, but later, perhaps in the exercise of good judgment, thought best to abandon it entirely. That was perfectly right and proper, but the money spent, and perhaps well spent, in aiding them to reach this conclusion is an obligation of those who borrowed it and spent it, namely, the landowners who alone under the law could originate such a district.
Very similar propositions were presented and considered in Bank v. Sheldon, 96 Kan. 492, 152 Pac. 765; Lithographing Co. v. Crist, 98 Kan. 723, 160 Pac. 198, and Weber Engine Co. v. Alter, 120 Kan. 557, 245 Pac. 143, although the enterprises that were abandoned were different and had been promulgated under different statutes.
The third point presented in the briefs on the motions to quash the writ is whether the county clerk has authority to extend the tax upon the roll and proceed to value the land in the district. On this point the plaintiff and defendant board are agreed that he has such authority and he is the one required by law to fix the value of real estate in the first instance. The county clerk alone questions this authority and cites R. S. 79-425 as requiring notices to landowners where the land has been divided since it was last assessed. This section, of course,* will not apply in every detail, but doubtless it contains helpful suggestions to a clerk anxiously looking for a way to perform an official duty at the request of an organization in his county desiring a levy extended on the land they represent, a full description and map of which is on file with him and another tendered him accompanying the request. Reference is also made to R. S. 79-402 and R. S. 24-401 to 24-480, with the thought expressed that surely these sections do not apply, with which we agree.
It is admitted that the county clerk of Lyon county is the county assessor. His duty in such double capacity is. partly prescribed in R. S. 79-408, as follows:
“The county clerk shall make out all real-estate assessment rolls that' may be required jor the several assessment districts in his county. Such assessment rolls shall contain a correct and pertinent description of each piece, parcel or lot of real property in numerical order as to lots and blocks, sections or subdivisions, in the respective, townships or cities, as the case may be. . . . The county assessor shall then furnish each deputy assessor with a field book, in form to be prescribed by the tax commission, which field book shall have perforated leaves, and shall contain full and complete legal descriptions of all real estate subject to assessment and taxation in the assessment district to which any such deputy assessor'has been assigned for assessment work, and shall provide for the gathering and reporting of such facts in relation to real estate and real-estate values as the tax commission may require.”
And in the same section, with reference to the work and expense involved, it is provided:
“The county assessor shall be provided by the board of county commissioners with the clerical help needed to have the work properly done or may assign a deputy assessor to aid the county assessor in such work.”
By analogy the assessment of the land in a drainage district is very similar to the process of assessing it in a school district. R. S. 79-1429 provides that the county superintendent shall furnish the metes and bounds of the district. Suppose a small stream ran in a meandering way through a number of farms and with the approval of the county superintendent the stream should be made the dividing line between two country school districts, is there no way under the statutes to get a separate valuation of the land lying in each of those two school districts? There is nothing more difficult about establishing the taxable value of the land in the drainage district, and R. S. 79-408 fully authorizes it to be done by the county clerk.
When the briefs in this case were prepared and filed it was between the times for the regular assessment of real property every four years, but there were ample provisions for meeting that situation between those periods, which need not now be discussed, as we are just now at the regular period for real-estate assessment, and the assessment of the land in this district can be made with that of all land assessments in the county, for the year 1930.
The final point urged by the county clerk is that the assessment of the land alone would be unconstitutional and void. That matter, although he was not represented in the former hearing of this •case, was necessarily included in the result therein reached, and will be allowed to stand as it was there decided.
Another proposition is involved in the present action that was not included in the former hearing, and it has been thoroughly briefed by plaintiff and defendant board. That is a claim of the plaintiff for an attorney fee in this case, which is often considered as a natural sequence of a decision for plaintiff in' a mandamus case. R. S. 60-1710 provides that—
“If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained, to be ascertained by the court or jury, or by referee, as in a civil action, and costs.”
In the case of Nolte v. Telephone Co., 86 Kan. 770, 121 Pac. 1111, it was held that reasonable attorney fee was proper under this statute where one had to resort to the courts by mandamus to obtain his rights. (See, also, Reeves v. Ryder, 92 Kan. 168, 139 Pac. 1028; Super v. Modell Township, 92 Kan. 979, 982, 146 Pac. 993.) A reasonable attorney fee will be allowed the plaintiff as a part of the costs in the action.
Now as to the second case, which is against the board only, and involves the power of the board of supervisors of the drainage dis trict to incur indebtedness for the district in excess of its borrowing power limited by statute to $5,000 (R. S. 24-621), and the power to levy a tax to provide for the payment thereof. The distinction between this case and the former one is that the claims in this case are for attorney fees authorized by the board and later allowed and approved by the board, whereas the former was for borrowed money especially authorized by statute to be borrowed for the preliminary purposes incident to the organization of the district.
It is the theory of the defendant board that since there is a limit placed by statute on the amount that can be borrowed for the preliminary expenses of organization, no indebtedness in excess of that amount can be lawfully incurred by the board, and that the statute does not authorize the incurring of any such excess. We concur in the views of the defendant that for ordinary expense, unless there is statutory authority for the same, either express or implied, it was not properly incurred. In the first place, the limitation in R. S. 24-621 is not upon the amount of indebtedness that may be incurred but upon the amount that may be borrowed. A limitation upon the right to borrow money not to exceed a specified sum is not regarded in itself as a limitation on the power to incur indebtedness in excess thereof for authorized purposes. (1 Dillon on Municipal Corporations [5th ed.], 544.) There is no attempt in the section above mentioned to limit anything except the amount to-be borrowed. The entire section is devoted to the matter of the issuance of bonds generally, and they are limited to the total tax levy of the district, and then the concluding sentence provides for this preliminary borrowing of $5,000 before funds can be secured from the levy of a tax or the sale of bonds. R. S. 24-608 outlines the preliminary duties of the board, specifies their compensation and authorizes the employment of clerical and other assistance, including an attorney. R. S. 24-613 to 24-617 provide for hearings of protests, costs of such hearings and the conducting of appeals, implying the need of an attorney and the liability for various kinds of expense. R. S. 24-614 specifically authorizes the attorney to represent the drainage district in such protests. R. S. 24-618, in the enumeration of the items of expense that are'to be levied after the plans for the improvement and drainage have been approved, mentions “the actual expense of organizing said district, the probable working and administrative expenses and damage (as esti mated by said board of supervisors) in the completion of said works and improvements and the carrying out of the objects of said district.”
R. S. 24-633 is as follows:
“The board of supervisors, except where otherwise provided, shall by resolution, at time of hiring or appointing, provide for the compensation for work done and necessary expenses incurred by any officer, engineer, attorney, or other, employee, and shall also pay the fees of all court and county officers who may by virtue of this act render service to said district.”
Surely there can be no serious question as to the authority of the board to secure the services of an attorney for the usual and ordinary need indicated by the statute, and particularly for extensive litigation growing out of the organization efforts. But it is urged that the statute uses the word “attorney” in the singular number only, and that the board could not employ a firm composed of three attorneys, especially when it already had a local attorney residing in the county. This contention is fully answered by reference to the third subdivision of our statute on construction of statutes, R. S. 77-201.
“Words importing the singular number only may be extended to several persons or things, and words importing the plural number only may be applied to one person or thing.”
Whether one or more attorneys were legally employed under the statute in this case, the employment and authority would come from the same source, viz., the board of supervisors. No one is superior to the other if two or more are employed unless the board should make such designation, which is very different from the facts in the case of Waters v. Trovillo, 47 Kan. 197, 27 Pac. 822, cited by defendant, where the county commissioners attempted to employ an attorney to perform services that the law required the county attorney to perform. The county attorney was a public officer, and his employment came from as high a source as that of the county commissioners. He was charged by statute with certain duties, and when the commissioners named another to perform his prescribed duties in the county in which he was elected by the people, the commissioners were exceeding their authority, and the appointed attorneys could not supersede nor displace him.
The record here shows these plaintiffs were employed to assist the attorney already employed by the board, and that there were three cases pending in the district court at the time the first con tract of employment was.made and one at the time of the second employment, and provision was made for possible appeals to the supreme court and hearings therein. After the services were rendered by the plaintiffs’ attorneys, they presented their claims for fees and expenses to the board, in accordance with the contracts, and they were allowed by appropriate resolutions of the board at a meeting at which all members were present. Objection is made to the allowance of these claims by only a majority vote instead of a unanimous vote. There are a few acts of boards of this character where the statute requires that to make the act valid it must have the unanimous support of the members of the board. But this is not one of such acts. Unless the statute specifically requires a unanimous vote, a majority voté is all that is or can be required, and it has the same binding effect as a unanimous vote.
We conclude that the board was authorized by statute to employ the plaintiffs as attorneys to render the board professional services; that such statutory authority permitted the employment of more than one attorney if the board so desired; and the approval by the board of the claims of plaintiffs for fees and expenses by appropriate resolutions after the services were performed constituted a binding obligation on the board and the landowners of the drainage district which the board represented.
We further conclude that these claims so approved have substantially the same standing as obligations of the board as the claims for the borrowed money considered in the earlier case, and that it is not necessary that these claims be reduced to judgment before a peremptory writ of mandamus will issue when the project is abandoned.
What was said in the earlier part of this opinion with reference to the power of the defendant board to make and cause to be extended a levy to cover the claim for money borrowed will apply here to these claims for attorney fees and expenses with equal force.
The motions to quash the alternative writ in each of the two cases considered in this opinion should be overruled and the writ in each case allowed.
It is so ordered.
Harvey, J.: I concur in the decision in case No. 28,382. I dissent from the decision in case No. 29,140. This is an action to re cover on contracts of employment, and jurisdiction is in the district court. I think the original jurisdiction of this court in mandamus does not include an action of this kind, and that the motion to quash should have been sustained.
Jochems, J., concurs and dissents as does Harvey, J.
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The opinion of the court was delivered by
Hutchison, J.:
The plaintiff in this action is a bank which sues the defendants, husband and wife, on two promissory notes made payable to the bank, on each of which one or more payments have been made. The defendants answer admitting the execution of the notes, but allege they were given without any consideration and with the distinct understanding and agreement thát they were to be paid from the profits of a joint venture in which they were to enter with the bank, namely, the handling of a stock of groceries, and if there were no profits in the venture or business the notes were not to be paid, and that there were no profits in the enterprise which had entirely failed before the commencement of the' action. To this answer the plaintiff filed a demurrer on the ground that it failed to state facts sufficient to constitute a defense to the action, and from the ruling of the trial court sustaining this demurrer the defendants appeal.
The theory of the defendants as to the nature and character of this defense is expressed in their brief as follows:
“The defendants sought to defend against the note upon the agreement that it was to be paid out of profits of the business belonging to both the plaintiff and defendants — that if there were no profits in the business, then said note was not to be paid, and as there were no profits in the business but rather-a loss, the note was without consideration.”
The demurrer was urged and sustained on two grounds, viz., that the agreement set up in the answer was ultra vires, and that it was an attempt to alter and vary the terms of the notes by an oral agreement.
The answer did not state that the agreement therein outlined and alleged was oral, but the briefs on both sides treat it as such in this court and indicate that it was so regarded in the argument on the demurrer in the trial court.
Appellants do not contend against the general rule that the unconditional promise in writing to pay a certain sum of money cannot be defeated by parol evidence of a contemporaneous oral agreement contradicting or varying the terms of the written instrument, but that parol evidence is admissible to establish a fact collateral to a written instrument, which would control its effect and operation as a binding engagement, as was said in Bartholomew v. Fell, 92 Kan. 64, 68, 139 Pac. 1016. In that case the written obligation Was delivered to take effect only upon the happening of some future event. In the case at bar there was no reservation or restriction as to delivery; the delivery was complete and four payments were made on the notes; the only condition suggested by the answer had reference to the payment of the notes, viz., that they,were not to be paid except from the profits of the business.
The facts in this case are quite different from those in Lumber Co. v. Band Co., 89 Kan. 788, 132 Pac. 992, where defendant gave his note to the lumber company for lumber ordered and used on his property by his tenant upon the express condition that no lien should be filed, and the maker of the note was permitted to show .a breach of the contract under which the note was given.
It is strongly urged by appellants that the notes in this case were without consideration because of the contingency under which they were to become enforceable, and that the condition on which liability depended had not occurred, citing Miller v. Buss, 103 Kan. 338, 173 Pac. 975; Garrison v. Marshall, 117 Kan. 722, 233 Pac. 119, and other cases in support of these views. In the latter case the note was defeated and held to have been given without consideration because of a written contract of release of the debtor from all obligation when he surrendered all of his property, but the evidence of an oral contemporaneous agreement made after the complete settlement when he gave the note for deficiency was held inadmissible.
The case of Miller v. Buss, supra, forcibly distinguishes between the impeachment of the certainty of the obligation to pay the note and the conditional execution thereof, where the evidence showed that the note was to take effect on condition that a certain tract of land be sold, which was not sold.
We find nothing in the allegations of the answer in this case making the execution or delivery of the notes conditional; the condition in the answer has reference only to the liability and obligation thereunder or, in the language used in the syllabus in the case of Miller v. Buss, supra, it tends to impeach the certainty of the obligation, which cannot be done by a parol contemporaneous agreement. In connection with the ruling in the case of Stevens v. Inch, 98 Kan. 306, 158 Pac. 43, to the effect that a note was not impeachable by a contradictory oral agreement, it was said in the opinion:
“The books teem with eases involving oral promises that notes need not be paid, or are mere memoranda, or will be surrendered without satisfaction, or may be paid out of the profits of a business venture if successful, and need not be paid otherwise. In all such cases the promise is made to induce the maker to sign the note, and if the promise be not kept it works a fraud. The theory of the law is that more fraud would result if all notes were open to qualification and contradiction by parol evidence than if the door were closed and locked against such evidence.” (p. 308.)
There are a number of cases in Kansas where defenses of the same nature were made as that in this case to the effect that the payments were conditional upon the money being obtained from the profits of the business, and such answers have quite uniformly been held as not constituting sufficient defenses when based upon oral agreements. In the case of Hangen v. Pingston, 110 Kan. 463, 204 Pac. 675, it was said:
“. . . that a promissory note in the usual form cannot be contradicted by evidence of an oral agreement that it was to be paid only out of the profits of a certain business carried on by the payee.” (Syl. ¶ 1. See, also, Underwood v. Viles, 106 Kan. 287, 187 Pac. 881; Macksville State Bank v. Ehrlich, 119 Kan. 796, 241 Pac. 462.)
It is insisted that R. S. 52-305 makes absence or failure of consideration a good defense to a negotiable instrument in the hands of the payee, and therefore the demurrer in this case should not have been sustained when such was pleaded, but it was pleaded only in connection with the accompanying facts which limited that defense to the circumstances alleged of liability only for payment out of the profits of the grocery business.
Holding, as we do under the authorities and precedents, that the defense is directed toward the impeachment of the obligation of the notes in question rather than imposing a condition in connection with the execution or delivery of the notes, and as such does not constitute a defense to the written instrument, it becomes unnecessary to consider the other ground on which the demurrer to the answer was sustained.
The judgment is affirmed.
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The opinion of the court was delivered by
Jochems, J.:
Plaintiff brought this action to cancel a certain oil- and-gas royalty conveyance oji eighty acres of land and to quiet her title to the land. Judgment was rendered for plaintiff, and defendants appeal.
The case was submitted to the court upon the petition of the plaintiff and the exhibits attached thereto, the answer of the defendants, reply of plaintiff, the trust agreement under which the defendant company was organized, and a statement showing a list of the royalties owned by the defendant company which have' been acquired by giving in exchange therefor units of ownership in the royalty company. No evidence other than the foregoing was introduced.
The petition of the plaintiff, after alleging that the defendant company was a commomlaw trust, that defendants Graham and Cline were the president and secretary thereof, respectively, and the address of the defendants at Newkirk, Okla., alleged further that the defendant company had ever since August 17, 1925, been exercising or purporting to exercise corporate powers in the state of Kansas and selling and disposing of units or shares of the defendant company; that the company never at any time had any authority to exercise corporate powers and never had any authority from the Kansas blue-sky board to sell or dispose of units, interests or shares; that the plaintiff is the owner of eighty acres of land (describing), and that in February, 1926, the defendants Graham and Cline came to plaintiff’s residence on the lands described in her petition and proposed that she give to the company a royalty pooling agreement and royalty conveyance, conveying to the Mid-Continent Royalty Company, its successors and assigns, an undivided one-half interest in and to the oil-and-gas royalty, exclusive of oil-and-gas lease bonuses and rental moneys on the lands; that they represented to her that the contract and royalty conveyance would be for a term of twenty years and no longer; that the company owned other royalty contracts upon lands on which drilling operations were being conducted, and that within a few months she would be drawing large dividends from the units in the company. The plaintiff alleged that she was illiterate and that defendants knew she could neither read nor write; that defendants further represented to her that the company was duly authorized to transact business in the state of Kansas and that its method of doing business had been submitted to and approved by the blue-sky board of Kansas; that the company had been duly authorized to issue units or shares therein and that in consideration of the foregoing the plaintiff entered into a royalty pooling agreement and made a royalty conveyance in return for a certificate of 2,240 units in the defendant company; that thereafter, on about June 10, 1927, she learned that the royalty pooling agreement and conveyance covering her real estate provided for a term of not only twenty-one years, but for as long as oil and gas were thereafter produced in paying quantities. She learned, also, that the company was not a corpora tion and had no authority to do business in the state of Kansas; that the company is what is known as a common-law trust under which all unit holders are individually liable for the debts of the company, and learned further that the company had never obtained permission from the blue-sky board of Kansas to sell its units or interests. She learned, also, that the company had no production on any acreage owned by it and no drilling wells on any of its acreage; that immediately upon learning such facts she demanded a reconveyance to her of the royalty and offered to return the units which she had received, and in her petition tendered the units into court. Attached to plaintiff’s petition as exhibit A was a copy of the certificate for the 2,240 units of the capital of the defendant company; also attached as exhibit B was the contract and royalty agreement. This was dated February -, 1926, and was made between the Mid-Continent Royalty Company, parties of the first part, and Sarah E. Wigington, party of the second part. Exhibit C, attached to the petition, was a copy of the royalty conveyance, which was dated November 14, 1925, and conveyed to the defendant company, its successors and assigns, an undivided one-half interest in and to the oil and gas royalties, exclusive of lease bonuses or rental money on the eighty acres of land described in the conveyance. This conveyance recited that the party of the first part “in consideration of the sum of one dollar and other valuable considerations, receipt of which is hereby acknowledged, does hereby bargain, sell, grant, convey, transfer, assign and set over to the said second party” the interest above described. The term was specified “for a term of twenty-one years and as long thereafter as oil and gas or either of them is produced in paying quantities on any of the acreages in the block belonging to the Mid-Continent Royalty Company.” It provided further that the first party should receive all oil and gas bonuses and rentals other than the royalty conveyed, and that in leasing the land the second party should not be a necessary party to the lease. The conveyance also contained a warranty of title on the part of the first party.
In their answer the defendants pleaded a general denial; admitted that the company was a common-law trust, that the defendant Graham was the president and the defendant Cline was the secretary of the company; that the company did pool an undivided one-half interest in the oil-and-gas royalty in the land described in plaintiff’s petition and gave the plaintiff 2,240 units in the com pany in return for the pooling of the royalty; that the royalty conveyance was duly recorded in Cowley county. Defendants denied that there was any fraud or misrepresentation and alleged that plaintiff fully understood the terms of the royalty. They further denied that the “pooling of royalty” in the defendant company and the giving of units in return for the “pooling” come under the blue-sky law of the state of Kansas, and denied that defendants had violated the blue-sky law of Kansas by engaging in the sale of units in the defendant company. To this answer the plaintiff filed a.reply, which is a general denial.
On June 13, 1929, the case came on for trial before the court and was taken under advisement to allow plaintiff and the defendants time to file written briefs. At the trial, in addition to the pleadings and exhibits hereinbefore referred to, there was introduced in evience a copy of the trust agreement under which the Mid-Continent Royalty Company was organized. This trust agreement was drawn in the manner and form of what is generally referred to as a “common law” or “Massachusetts trust.” It provided, in part, that the parties Graham and Cline entered into an agreement between them and together with their assigns and successors under which they became the trustees of the trust and had the full right and power to manage and control the same; it further provided that the pool should consist of royalties equivalent to an undivided one-half royalty interest in 50,000 acres of land, and there should be issued in the aggregate for such interests on the 50,000 acres of land two million units to the persons conveying their royalty interests. It further provided a method by which some bank or banks should be appointed as custodians for all funds received as royalties from the interests in oil-and-gas lands belonging to the pool, and that from time to time the banks should distribute to the unit holders their pro rata share of the income from the pool. It provided, also, that of the two million units to be issued, seventy per cent was to be issued to the owners of the lands on which the royalty interests were acquired and thirty per cent of the units was “to go to the trustees for the uniting of the fee holders, and it is further agreed that the trustees are to pay all the expenses of uniting the fee holders of the 50,000 acres.” The trust agreement contained further conditions relative to the powers of the trustees to select officers, to fill vacancies on the board of trustees and other details commonly found in such trust agreements.
At the trial there was submitted in evidence a complete list of the royalty conveyances procured before November 14, 1925, the date upon which Sarah Wigington made her conveyance. This list showed the names of owners of the lands, described the lands and gave the amount of royalty interest conveyed. The lands were located principally in Kay county, Oklahoma, and Cowley county, Kansas.
Thereafter, on June 24, 1929, the plaintiff filed a motion asking for the allowance of a reasonable attorney’s fee and set up in her motion that in order to obtain cancellation of the royalty conveyance it was necessary for her to employ an attorney and that defendants refused to cancel the conveyance and clear her land of encumbrance.
Upon the foregoing the court rendered judgment. In the journal entry of judgment the court made certain findings of fact in which the court found that the defendant company-was a common-law trust existing under a written declaration of trust, a copy of which was introduced in evidence; that the company had never at any time applied to the blue-sky board for permission to do business in Kansas, or to sell or dispose of its units of interest in Kansas; that no permit had ever been applied for and none was ever issued; that it had no authority from the state of Kansas to exercise corporate powers within the state; that the transaction by which the defendant company obtained the conveyance from the plaintiff came within the provisions of the blue-sky law of Kansas, and that the defendant company having no permit or authority from the blue-sky board to sell its units, the transaction was in violation of the blue-sky law of the state of Kansas and was, and is, absolutely null and void. The court concluded that the royalty conveyance should be canceled and that the units issued to the plaintiff should be canceled and held for naught; it further allowed an attorneys’ fee of $250 to plaintiff’s attorneys.
The appellants urge that the trial court erred in finding that the blue-sky law of Kansas applied to the transaction; that the court erred in quieting title to plaintiff’s land when plaintiff failed to deliver into court the certificate for 2,240 units in the defendant company, and that the court further erred in allowing plaintiff an attorneys’ fee.
Does the blue-sky law of Kansas (R. S. 17-1201 to 17-1222, inclusive) apply to the transaction shown in this case?
Appellants urge that inasmuch as they were engaged in forming a pool whereby they took the royalty conveyance from the plaintiff and gave her in exchange therefor the certificate for 2,240 units, this did not constitute a sale within the meaning of the blue-sky law. Appellants admit that the blue-sky law does apply to the sale of securities or shares of a common-law trust the same as to the stock of a corporation, and that this has been so decided by this court in Lumber Co. v. State Charter Board, 107 Kan. 153, 190 Pac. 601. The appellants, after setting forth the statute which relates to the sale of speculative securities in the state of Kansas (R. S. 17-1202), urge that the statute by its terms applies only to a “sale” or “offer for sale.” Appellants further contend that the statute is penal in its nature; that it must be strictly construed; that the legislature has the power to enlarge the scope of the,, criminal statutes, but the court has no power to do so. The appellants then cite some authorities on the definition of the word “sale.”
Appellants have correctly stated the general rule relative to the construction of penal statutes. However, as is generally the case, we find that there are exceptions to the rule. In 25 R. C. L. § 302, p. 1084, the law is stated:
“The rule of strict construction of a penal law is subordinate to the rule of reasonable, sensible construction, having in view effectuation of the legislative purpose, and is not to be so unreasonably- applied as to defeat the true intent and meaning of the enactment. While criminal statutes are to be strictly construed in favor of the defendant, the courts are not authorized so to interpret them as to defeat the obvious purpose of the legislature or so to narrow the words of the statute as to exclude cases which those words in their ordinary acceptation would include. Courts are to take a common-sense view of the statute as a whole, and if by so doing and giving to the words used a reasonable construction the object of the legislature can be definitely ascertained and carried out, the statute must' be upheld; if not, it must fall. The rule that a penal statute must be strictly construed does not prevent the courts from calling to their aid all the other rules of construction and giving each its appropriate scope, and is not violated by giving the words of the statute a reasonable meaning according to the sense in which they were intended, and disregarding captious objections and even the demands of exact grammatical propriety. When the purpose of the law is manifest, strict construction does not militate against any departure from the primary meaning of words within the reasonable scope thereof. Greater latitude is exercised by the courts in the construction of statutes defining misdemeanors to prevent frauds than those which have to do with graver offenses and more immediately affect individuals than the general public. . . .”
The law in question was adopted by the Kansas legislature in 1915, and is chapter 164 of the Laws of 1915, as subsequently amended in 1919. The title of the act reads:
“An act to prevent unfairness, imposition or fraud in the sale or disposition of certain ‘securities’ herein defined by requiring an inspection thereof, providing for such inspection, supervision and regulation of the business of any person, association, partnership or corporation, engaged or intending to engage, whether as principal, broker or agent, in the sale of any such securities in the state of Kansas, as may be necessary to prevent unfairness, imposition or fraud in the sale or disposition of said securities and providing penalties for the violation thereof. . . .”
The legislative purpose is made clear by the title of the act. The object which the legislature had in mind was to prevent unfairness or fraud in the sale or disposition of securities. No contention is here made that the securities of the defendant were not within the definitions of the term “securities” as defined in the act.
In White v. Kansas City, 102 Kan. 495, 170 Pac. 809, this court in considering the question of statutory construction said:
“By a separate section a violation of the provisions of the section already referred to .is made a misdemeanor. (Gen. Stat. 1915, sec. 8801.) It is argued that the statute being penal should be strictly construed. Notwithstanding the penalty, the purpose of interpretation is to arrive at the real intention of the legislature (36 Cyc. 1183-1185), and we regard that as reasonably clear.” (p. 498.)
In State v. Tower, 122 Kan. 165, 251 Pac. 401, this court said:
“The problem for solution is whether the legislature intended to cover a field with marked boundaries so that all cheats and frauds within that field should be subject to punishment, or consciously and purposely extended the statute so that it embraced a new field not theretofore thought of as lying within the domain of punishable false pretenses. In the books for the guidance of courts called on to interpret statutes, it is written that penal statutes are to be strictly construed, and statutes tending to suppress fraud are to be liberally construed. It is conceived that the first business of the courts is to ascertain, if possible, what the legislature intended, and if the meaning of the statute to be applied be reasonably plain, to accept that meaning without attempting either to restrain or to enlarge it.” (p. 166.)
In Endlich on the Interpretation of Statutes, § 333, the law is stated:
“In construing statutes against frauds it has been said, that, where the statute acts against the offender and inflicts a penalty, it is to be strictly construed; but where it acts upon the offense by setting aside the fraudulent transaction, it is to be construed liberally.” (p. 458.)
In 2 Lewis’ Sutherland Statutory Construction, 2d ed., § 533, the text quotes from the early English case of Gorton v. Champneys, 1 Bing. 287, decided in 1823, as follows:
“It is a law to prevent and suppress frauds; and it is a clear and fundamental rule, in construing statutes against frauds, that they are to be liberally and beneficially expounded; and in our best textbook this position is to be found: that where the statute acts against the offender and inflicts a penalty, it is then to be construed strictly; but where it acts upon the offense, by setting aside the fraudulent transaction, here it is to be construed liberally.” (p, 990.)
To the same effect are Sharp v. Mayor, etc., of New York, 31 Barb. (N. Y.) 572; Cumming v. Fryer, Dudley’s Rep. (Ga.) 182.
The difficulty of making an exact definition of fraud has been frequently noted and discussed in the law books and decided cases. While in City of Clay Center v. Myers, 52 Kan. 363, 35 Pac. 25, our court has recognized the definition of fraud as stated in 1 Story, Equity Jurisprudence, §187; Black’s Law Dict., § 517; and in Bouvier’s Law Dict., still it has recognized the difficulty involved in exactly defining the term. In Eureka Bank v. Bay, 90 Kan. 506, 135 Pac. 584, this court said:
“There is no clear and all-inclusive definition of the term ‘fraud.’ If there were it would soon need to be extended and corrected. Broadly speaking, all conduct may be said to be fraudulent which results in unconscientious advantage over or injury to another.” (p. 508.)
In Stonemets v. Head, 248 Mo. 243, 154 S. W. 108, it was well said:
“Fraud is kaleidoscopic, infinite. Fraud, being infinite and taking on protean form at will, were courts to cramp themselves by defining it with a hard-and-fast definition, their jurisdiction would be cunningly circumvented at once by new schemes beyond the definition. Messieurs, the fraudfeasors, would like nothing half so well as for courts to say they would go thus far and no further in its pursuit.” (p. 263.)
In Guaranty M. Co. v. Wilcox, 62 Utah 184, 218 Pac. 133, 30 A. L. R. 1324, the court held that a contract by a going investment company to dispose of increased shares of its preferred capital stock was a sale within the meaning of the blue-sky laws, and in discussing the question of strict construction said:
“In this connection we desire to add here that we are not unmindful of counsel’s contention that, in view of the very drastic penalties that are imposed by law, and of the consequences that may be visited even upon innocent persons in case the provisions of the law are violated, the law should receive a strict construction. The penalties are indeed drastic and the consequences harsh, but that, standing alone, does not authorize us to except transactions that are clearly within both the spirit and the letter of the law, as well as within the mischief the law was intended to meet.” (p. 193.)
In the case of State v. Gopher Tire and Rubber Co., 146 Minn. 52, 177 N. W. 937, the court discusses the question of the construction of the blue-sky law. It that case it was said:
“The purpose of the statute is to protect the public against imposition. It is a new form of regulatory law which, in the course of a few years, has swept over thirty-three states. It has been said that its popular name indicates the evil at which it is aimed; that is, speculative schemes having no more basis than so many feet of blue sky (Hall v. Geiger-Jones Co., 242 U. S. 539, 37 Sup. Ct. 217, 61 L. Ed. 480, L. R. A. 1917F, 514, Ann. Cas. 1917C 643; State v. Agey, 171 N. C. 831, 88 S. E. 726), and that it is intended to put a stop to the sale of shares in visionary oil wells, nonexistent gold mines, and other ‘get-rich-quick’ schemes calculated to despoil credulous individuals of their savings. It is a proper and needful exercise of the police power of the state and should not be given a narrow construction; for it was the evident purpose of the legislature to bring within the statute the sale of all securities not specifically exempted. ... To lay down a hard and fast rule by which to determine whether that which is offered to a prospective investor is such a security as may not be sold without a license would be to aid the unscrupulous in circumventing the law. It is better to determine in each instance whether a security is in fact of such a character as fairly to fall within the scope of the statute.” (pp. 55, 56.)
The action before us at the present time is civil and not criminal in its nature. It is one in which the operation of the statute applies to the offense and not to the offender. Since it is unnecessary to a decision of this case, we shall not at this time determine whether the statute shall be strictly or liberally construed in cases of criminal prosecution for violation of the law, but will determine the construction to be given the statute in all cases where it operates on the offense.
Realizing the difficulty courts have had in attempting to establish an exact definition of fraud, and the fact that the legislatures in enacting laws for the purpose of preventing fraud are confronted with this same difficulty, the rule of liberal construction of statutes designed to prevent fraud is unquestionably a proper one where the statute acts upon the offense. The general rule contended for by appellants is subject to an exception where the statute is one designed to prevent fraud when the application of the statute acts upon the offense and not the offender. It is our conclusion that in civil actions such as the case at bar, where the statute acts upon the offense committed, the blue-sky law is entitled to a liberal con struction in order to accomplish the purpose which the legislature had in mind when it enacted the law.
In view of this liberal construction, does the transaction shown by this record constitute a sale of securities of the defendant company and come within the provisions of the blue-sky law?
It is to be noted that the title of the act embraces “sale or disposition.” Numerous authorities are cited by both the appellants and the appellee upon the definition of “sale.” In Edward v. Ioor, 205 Mich. 617, 172 N. W. 620, 15 A. L. R. 256, it was said, in substance:
“The exchange by a holding corporation of its stock for the stock of the corporation which it is organized to take over, with the holders of such stock, is a sale within the meaning of a statute requiring foreign corporations to secure the consent of the corporation commission before selling their stock within the state.”
In coming to this conclusion the court in the opinion said:
“Did the exchange of its stock for that of the other companies constitute a sale within the meaning of the commission act? This court has defined a sale as follows: ‘A sale is a parting with one’s interest in a thing for a valuable consideration.’ (Western Mass. Ins. Co. v. Riker, 10 Mich. 279.) ‘But every transfer of property for an equivalent is practically and essentially a sale, and the deed of bargain and sale is almost universally used to convey land so transferred. Money’s worth is a valuable consideration, as much as money itself.’ (Huff v. Hall, 56 Mich. 456, 23 N. W. 88.) Bouvier defines a sale as: ‘An agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price.’ (3 Bouvier’s Law Dict. 2983.) . . . We must assume that the legislature had in mind this well-understood meaning of the word ‘sale’ when the commission act was passed. If the act is not so construed, as was suggested upon the argument, one may exchange worthless stock for government bonds and escape with impunity.” (p. 623.)
It has been held that an exchange of lands is nothing more nor less than a sale. (Barton v. Jones, 206 Ky. 238, 267 S. W. 214.) Definitions limiting the meaning of the word “sale” to transactions wherein title to property is transferred for actual money only are too narrow and are not sound. The consideration passing may be money or money’s worth. Applying the definition laid down in the authorities cited, it is readily seen that the plaintiff parted with her interest in the oil and gas rights for a consideration, namely, the units of the defendant company.
The appellee has called our attention to the case of Mamey v. Home Royalty Ass’n, recently decided by the supreme court of New Mexico and reported in 286 Pac. 979. This was an action involving the construction of the blue-sky law of that state. In that case it was held:
“The blue-sky law is penal and to be strictly construed; but not to exclude the ordinary meaning of the term employed in denouncing the act, in favor of its narrower meaning, where the latter meaning would tend to defeat the salutary purposes of the legislation. (Syl. IT 2.)
“The consideration for the ‘speculative security’ being a conveyance of minerals and mineral rights, the transaction is a ‘sale’ within the prohibition of the blue-sky law.” (Syl. ¶[ 3.)
The facts in that case were almost identical with the case at bar. The defendant in that case was a common-law trust operating under the same plan as the defendant in this case. The action was brought to set aside a royalty conveyance made to the plaintiff in exchange for a certificate of participation issued by the defendant. As here, the defendant contended that the transaction was a mere exchange or barter and was not prohibited by the word “sale.” In that case the court further said:
“We are satisfied that the strict construction, to which we are enjoined in the case of a penal statute, does not require that we close our eyes to a reasonable and ordinary meaning of the word ‘sell’ and plant ourselves upon the narrowest meaning which it will bear; especially where such interpretation would in many cases defeat the salutary objects of the legislation and open the door to evasion. Ex parte De Vore, 18 N. M. 246, 136 Pac. 47. While the word ‘sell’ seems to be employed throughout in the body of the act, the title informs us of the purpose to prevent fraud in the ‘sale or disposition’ of securities. Every reason for prohibiting a sale of speculative securities exists for prohibiting a disposition of them by way of exchange. The narrow interpretation contended for cannot in our judgment have been the intention of the legislature.” (p. 980.)
The transaction involved in this case was a “sale of the securities of the defendant company within the meaning and intent of the blue-sky law.”
Since such a transaction is prohibited by the statute, it is void. The statute being one clearly intended for the protection of plaintiff, she is entitled to a recovery of that which was illegally obtained from her. See the following: 13 C. J. § 443, p. 499; Mason v. McLeod, 57 Kan. 105, 45 Pac. 76; Pinney v. Bank, 68 Kan. 223, 75 Pac. 119; Nyhart v. Kubach, 76 Kan. 154, 90 Pac. 796; Latham v. Harrod, 71 Kan. 565, 81 Pac. 214; Merriam v. West, 114 Kan. 131, 216 Pac. 1102.
The appellants make a contention to the effect that inasmuch as the plaintiff did not surrender into court the certificate for the units issued to her, she is not entitled to quiet title. It appears that at the time of the trial her certificate for the units had been mislaid and could not be found. Under these conditions the court made a decree canceling the certificate. Counsel for the appellee stated in open court upon the argument of this case that he has now found the certificate and is in position to turn it over to the court.
This leaves the question as to whether or not the court erred in allowing plaintiff an attorneys’ fee of $250.
The plaintiff did not include in her petition any cause of action for damages sustained by way of attorneys’ fees necessarily incurred in this suit, but after the case had been tried, and before the court rendered judgment, filed a motion asking that a reasonable attorneys’ fee be allowed on account of the fact that defendants had refused to cancel the royalty conveyance and release it of record and she was, therefore, obliged to employ attorneys to bring this action. In support of the allowance made by the court the appellee cites Bank v. Williams, 62 Kan. 431, 63 Pac. 744; McOsker v. Federal Insurance Co., 115 Kan. 626, 224 Pac. 53, and other Kansas decisions therein cited. We have examined these cases and find that in neither of them were the attorneys’ fees allowed for the prosecution of the instant case. The attorneys’ fees permitted to be recovered in those cases were incurred in previous litigation wherein the party who had been injured by the perpetrator of the fraud had incurred attorneys’ fees in an effort to save himself from loss occasioned by the fraud. In Bank v. Williams, supra, it was said:
“The attorneys’ fees and expenses in the present action of the bank against Williams are not sued for or claimed. The expenses paid by the bank were incurred before this action was commenced. They were necessary and arose solely as a result of the fraud of defendant below.” (p. 434.)
In that case the defendant obtained a draft from the bank and then caused it to be cashed, and the bank incurred attorneys’ fees in an honest effort to defeat a recovery on the draft. In turn it brought action' against the wrongdoer who fraudulently obtained the draft from it, and was permitted to recover the attorneys’ fees which it had incurred in the previous action. In each of the Kansas cases cited the situation was similar to that of the case of Bank v. Williams. We are unable to find any previous decision of this court allowing the recovery of attorneys’ fees under circumstances similar to those in the case at bar.
In 27 C. J. 87, § 234, the general rule on the question of the right to recover attorneys’ fees in similar actions is stated as follows:
“Expenses of litigation and attorneys’ fees incurred in a tort action for fraud are by the weight of authority held to be nonrecoverable.”
In Baird v. Gibberd, 32 Idaho 796, 189 Pac. 56, this question was considered and the court said:
“The authorities are not agreed upon the question whether attorney fees are recoverable in a tort action based upon fraud. Even in those states where a recovery is permitted there is disagreement in the authorities as to whether they are recoverable as special or general damages, whether they need to be specially pleaded, or whether proof should be admitted, and whether they come within the class of compensatory or exemplary damages, but they seem never to have been allowed except in states where exemplary damages are recoverable. (Citing decisions.)
“We are unable to see why attorney fees, or any other expense of litigation, should be treated as exemplary damages. On the other hand, if viewed as compensatory damages, there is no sound reason apparent to our mind why they should be allowed in this class of actions rather than in any other kind of a tort action. We believe the correct rule is to disallow them entirely.” (p. 803.)
It may well be argued that since the blue-sky law is a statute intended to prevent fraud and that since the defendants have violated an express statute of this character, that there is some justification for penalizing them by allowing an attorneys’ fee to be recovered in this action. It may well be contended that since the defendants disregard an express statute the court is justified in an equitable action in seeking to set aside the transaction resulting from the violation of the statute, in allowing an attorneys’ fee as a matter of equity and right. The blue-sky law has been amended several times by the legislature of this state since its enactment in 1915. Considerable litigation has heretofore resulted from the violation of this statute. The legislature might very well make a provision, if it saw fit, to further penalize one who violates this statute by specifically providing, in actions such as the one now before the court where an attorneys’ fee is incurred in setting aside the transaction, that a reasonble attorneys’ fee might be allowed by the court. Several instances are to be found in our statutes where the legislature has deemed it advisable to permit the allowance of attorneys’ fees by way of penalty, as for example, refusal of a fire insurance company to pay a loss, failure to release a mortgage when the indebtedness has been paid, and failure to release an oil-and-gas lease under certain circumstances, but in the statute now before the court the legislature did not see fit to make any provision for such an allowance. We feel that for this court to allow an attorneys’ fee in this case would be invading the proper province of the legislature and would be judicial legislation on our part.
That part of the judgment of the district court allowing an attorneys’ fee to the plaintiff will, therefore, not be permitted to stand. The district court is directed to modify its judgment by setting aside the allowance of the $250 attorneys’ fee.
It is further directed to order the certificate of units issued to the plaintiff to be delivered to the clerk of the district court for the ■ purpose of surrendering it to the defendants.
As so modified, the judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a life insurance policy. Plaintiff prevailed, and defendant appeals.
On January 18, 1926, Olive Tool signed an application for life in surance, payable to her husband, the plaintiff, Sylvester Tool. On February 1 the policy was delivered. On April 21 Mrs. Tool died of toxemia of the heart caused by exopthalmic goiter. The death certificate gave cause of death as myocarditis, contributing cause exopthalmic goiter. The proof of death as it appeared at the trial gave cause of death as goiter of long standing.
The application contained the. following question and answer: “Are you in good health? A. Yes.” The application also declared the answer was complete and true, and should form the basis of the contract of insurance. The defense pleaded in the answer to the petition was that the applicant was not in good health when she signed the application, and had been afflicted with exopthalmic goiter for many years. The application did not warrant good health, and an answer in good faith according to. Mrs. Tool’s understanding of good health was sufficient.
Dr. Paul Morton Krall testified Mrs. Tool may not have known she had an exopthalmic goiter. In the eyes of a layman that was possible. But the doctor did not say she may not have known she was not in good health, and he testified he did not believe it was possible for her to be unmindful of an exopthalmic goiter on January 18 which caused her death three months later. There was, however, some nonexpert testimony that Mrs. Tool was apparently in good health and spirits, and had no noticeable enlargement of the thyroid gland or throat or neck. Mrs. Tool’s husband admitted she had had an' operation for goiter some years before, which produced shortness of breath, nervousness, and fluttering of the heart, but he said that on January 18 and previously he did not notice a thing wrong.
Dr. John B. Paul treated Mrs. Tool from April 4 until she died. He could tell by observation what her trouble was, protrusion of the eyeballs and enlargement of the thyroid gland, and in his opinion an exopthalmic goiter could not come up and manifest itself in a period of twelve weeks, producing myocarditis resulting in death.
One of the witnesses who testified concerning Mrs. Tool’s apparent good health was the agent who took the application. He was instructed by the company to observe applicants and determine whether they were in good health. He said he had known Mrs. Tool three or four or six months before the application was written, and he told about how clean she kept her house, how she helped her neighbors, how young and jolly she acted, and about her build, and everything. Near the close of the trial, in an unguarded moment, he said Mrs. Tool was a perfect stranger to him when he wrote the application.
The jury returned the following special findings of fact:
“1. Did Olive Tool sign an application blank for insurance in the National Life and Accident Insurance Company, in which she was asked this question, ‘Are you in good health?’ A. Yes.
“2. If you answer the above question in the affirmative, state what answer Olive Tool made to such question. A. Yes.
“3. If you answer questions 1 and 2 in the affirmative, then state whether or not Olive Tool honestly believed that the answer she gave was true. A. Yes.
“4. At the time the application was signed, on January 18, 1926, was Olive Tool in good health? A. Yes.”
The responsibility rested on the district court to say, not whether there was some evidence to support the findings, but whether the findings reflected the truth of the case under the evidence. The medical testimony was not controverted by medical testimony, and notwithstanding the evidence strongly tended to show that this is a rank case of deathbed insurance, the district court approved the findings. That concludes the controversy over the facts so far as this court is concerned.
The policy contained a provision that the company assumed no obligation unless the insured was in sound health on the day the policy was dated. The policy was dated February 1. In the course of the trial the attorney for defendant moved for an instructed verdict on the ground the policy did not become effective. The instructions to the jury are not brought up, but it appears the question was submitted to the jury, who returned the following findings of fact:
“8. Was Olive Tool in sound health on the first day of February, 1926? A. Yes.
“9. Was Olive Tool under the care of Dr. R. E. Barker on January 30, 1926? A. We don’t know.” »
Dr. Robert E. Barker testified he was called to treat Mrs. Tool on January 31. Her symptoms of exopthalmic goiter were pronounced. The thyroid gland was very much enlarged, the patient had a toxic heart, her pulse was rapid, irregular, and weak, her breathing was difficult, and she was very weak. Tool said his wife’s health was good in January, but he did not testify concerning her health in February, or tell when Doctor Barker was first called. Doctor Barker was first called to the Tool home. Tool was present when the first examination, was made, but he could not “remember” that Barker told him anything about what he treated her for. Tool made proof of death' to the company the day after his wife died.
There were reasons why the jury should not care to depend on Doctor Barker’s testimony. .. When he was visited by plaintiff’s attorney before the trial, and was asked to give information concerning Mrs. Tool’s case, Doctor Barker introduced the subject of an asthmatic condition. In explanation of his mention of asthma he said he was not under oath then. Under an irritating cross-examination he evaded giving direct answers to direct questions. He finally became quite uncertain about dates of visits. Besides that, the company’s case was damaged by evidence indicating it had tampered with the proofs of death.
Eliminating Doctor • Barker’s testimony, there was evidence of sound health through January. This evidence was opposed by medical-expert testimony, not disputed by any expert witness, that Mrs. Tool could not have been in good health on January 18, or in sound health on February 1. The result is, we have the old, old question whether disputes respecting matters of fact depending for solution on oral testimony, shall be settled by trial juries and judges, or by this court.
In this connection the court may suggest that, in view of the company’s method of writing insurance without medical examination of the applicant, on nonexpert observation of the applicant by the solicitor, and the applicant’s statements, sound health in the policy should be regarded for all purposes the same as good health in the application.
The judgment of the district court is affirmed.
Jochems, J., dissenting.
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The opinion of the court was delivered by
Johnston, C. J.:
George L. Clark and W. L. Clark, copartners, brought this action against J. M. Crouse, E. E. Boyle and B. B. Brown, as a partnership doing business under the firm name of the O. K. C. Drilling Company, to recover for labor performed for defendant towards the drilling of an oil well and for $100 alleged to have been advanced by them to the defendants. The plaintiffs in their petition set forth a detailed account of the services performed and of the money advanced by them in 1925, that the defendants had leased a tract of land and started to drill an oil well thereon and orally contracted with plaintiffs to do certain hauling for de fendants and agreed to pay them the customary wages or would assign to them certain described acreage around the well, and that if plaintiffs would accept the acreage in lieu of the customary price defendants would drill the well to a depth of 3,600 feet. They alleged that the work was done, but that defendants refused to assign the acreage and failed to drill the well to a depth of 3,600 feet. That in October, 1925, they had promised to pay plaintiff the customary price, but since that time had refused to make such payment. It was alleged that the three defendants represented and held themselves out as partners doing business as the O. K. C. Drilling Company. The only defendant that filed an answer in the case was E. E. Boyle, and he defended upon the ground that he was not a member of the partnership named and had not as a partner or as an individual contracted with plaintiff to do any work on the oil well, as alleged by plaintiffs. He further denied that he had as a partner or individually leased land or had agreed to pay for work in acreage or otherwise. He verified his answer, and the principal question tried was whether Boyle was a partner or had held himself out as a partner in the transaction. At the close of plaintiffs’ testimony Boyle demurred to it, insisting that plaintiffs had wholly failed to establish that he was a partner in the drilling company or had in any way made himself liable for the claim of plaintiff. The demurrer was overruled, and no evidence being introduced by Boyle the court submitted the case to the jury, which returned a verdict for plaintiffs and against Boyle for $2,911.81, and judgment was rendered in accordance with the verdict. Boyle appeals.
As already indicated, a question of fact is presented, and that is, Did plaintiff produce evidence fairly tending to show that Boyle held himself out as a partner in the drilling company or that he was in fact a partner and therefore liable to plaintiff for the labor performed for the drilling company? The testimony was that the contract was made with plaintiff for services to be performed prior to February 24, 1925, and that work -under the contract was begun on that date. On March 17 the well was spudded in, but plaintiffs had not yet seen Boyle at the well, nor had they any transaction with him. At one time Crouse borrowed $100 from plaintiffs to pay a driller, but it was not shown that Boyle took any part in the transaction. The plaintiff, George L. Clark, testified that his conversations and agreement respecting employment were with Brown and Crouse, and that he had no conversation with Boyle until about the time the well was spudded in or when they were getting the pumps ready to work right after the spudding. He testified as follows as to the conversation with Boyle:
“Q. State, George, what he said to you. A. He told me to go to South Haven and get two joints of 20-inch pipe; gave me an order.
“Q. Did he give you an order as to what kind of casing he wanted? A. A written order.
“Q. Do you have that order now? A. No, it was given to the driller where we got the pipe.
“Q. Now then, after that conversation, did you ever have any conversation with Elmer Boyle? A. One time.
“Q. Give as near as you can the time. A. That was later on, about a week.
“Q. What was that conversation? A. He offered to pay me for hauling this pipe.
“Q. Well, just state what he said about that, and what you said to him about it. A. Well, he offered to pay me for the hauling, and I told him we would let it go and we would figure it up later.
“Q. Did you ever have any further conversation with him? A. No, not that I know of in particular.
“Q. Were you around the well, George, virtually all the time it was being drilled? A. Well, off and on.
“Q. Did you see Elmer Boyle there? A. Yes, sir.
“Q. On numerous occasions? A. Yes, sir.
“Q. I wish you would state what you observed Mr. Boyle doing there. A. Well, he was there and seemed to be kinda helping them out a little-looking after things a little.”
The plaintiff, W. L. Clark, testified about the same as his brother respecting the going to South Haven to get two joints of pipe. He was asked if he saw Boyle about the well afterwards and he replied, “Well, I don’t remember now.” In his testimony he said that they had not been paid for the hauling except $1,500 paid by J. M. Crouse. He further said that no acreage was ever tendered to him, and that the well had not been drilled to a depth of 3,600 feet. Another witness, Mike Curran, testified that he saw Boyle at the well when the rig was being built, and that he was working around the rig. Reese Clark, the father of plaintiffs, testified that he had a conversation with Boyle when drilling was going on, and when he spoke of a pond from which they had been getting water, that it was going dry, the witness said he told Boyle that he had a well that would furnish all the water they wanted; that Boyle said they had to have water to pump; that they talked and joked together about it, but that he did not know whether Boyle was connected with the rig or not. He had never asked him. Later, when the well became low, Boyle said to witness they had to have water to pump and further that “I am afraid of the water; we ain’t going to have water here to drill this well.” He says, “Get in the car and I will show you all the water you want.” They went over to the south end of .the place to a spring pond, and he told Boyle that water might be taken out of that, and afterwards Boyle said, “I can go home satisfied,” he says, “we got the water.”
It cannot well be contended that there is any direct evidence of a contract of partnership between Boyle and the other parties. There was no testimony by Crouse or Brown that Boyle was connected with them in the venture, nor was there any admission by Boyle that he was a. member of the firm. There was nothing to show that he contributed anything towards the capital or had promised to furnish any, nor was there evidence of any sharing of the profits or expenses of the project. The existence of a partnership cannot be established by conjecture, or the statement of a witness that he understood a partnership existed between certain members, nor by other hearsay testimony. As between a member of a partnership and third parties, a partnership may be shown by circumstantial evidence warranting an inference of the existence of the relationship, but not where there is only a slight basis for the inference. (47 C. J. 727, § 136.) The general rule is that a person is not liable for a partnership obligation unless he is in fact a partner. If a party permits his name to be used as a partner or by his statements and conduct indicates to the public that he is a partner, he will be estopped to deny responsibility. If he holds himself out as a partner, he may be held liable as far as third parties are concerned, although he may not in fact be a partner. This rule is based on the ground of estoppel, but is not to be applied when the third party has no knowledge of the holding out and who was not misled by the appearance produced. (20 R. C. L. 1067.)
What was there in the testimony as to statements and conduct of Boyle which tended to show partnership? No admissions were made of such a relationship, nor was there any direct evidence concerning it. His appearance at the well at different times when he helped with the work is more consistent with the position of an employee than a principal or proprietor. Much reliance is placed on the fact that he directed plaintiffs to go to South Haven for two lengths of pipe and had offered to pay for the trip on their return. That might have been done by a foreman or any employee in charge of the work, and is insufficient as a basis to warrant an inference of the existence of a partnership or to estop defendant from denying responsibility as a partner. The other circumstances relating to finding a supply of water do not come up to proof of the relation of a partner. The driller or other employee in charge of the work would be concerned about securing water for drilling and does not warrant the inference that he was a partner in fact, or that he was holding himself out as a member of the partnership.
It is true, as plaintiffs contend, that there is no dispute in the evidence, but the trouble with plaintiffs’ case is the lack of competent evidence tending to show that a contract relation existed between Boyle and the other parties named, under which they combined their property, labor or skill in the oil-well enterprise as principals for joint profit. There is nothing approaching proof of a holding out as a partner which would give rise to a liability.
The conclusion reached renders it unnecessary to consider some other objections made by the defendant.
Judgment will be for the defendant. It is so ordered.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to partition real property which she claimed to have inherited, with other parties to the action, from Mary S. Barr and Hugh Barr, owners of the real property in their lifetime. The appellant, F. D. Barr, one of the defendants, a son of Mary S. Barr and Hugh Barf, claimed to own the property under and by virtue of a written instrument, which he claimed was a deed of conveyance executed by Mary S. Barr and Hugh Barr. Judgment was rendered in favor of the plaintiff and certain of the defendants in the action on the theory that they were the heirs of Mary S. Barr and Hugh Barr. The claim of the defendant Barr that he owned the property under and by virtue of the deed was denied. He appeals.
The action was tried by the court without a jury and amended findings of fact and conclusions of law were made as follows:
“1. Hugh Barr and Mary S. Barr, husband and wife, were the owners of the west half of the southwest quarter of section 25, township 17, range 22, in Miami county, Kansas, excepting the right of way of the Missouri Pacific railroad, and also except IV2 acres in the southwest corner thereof belonging to school district No. 12.
“2. Hugh Barr and Mary S. Barr, husband and wife, were the parents of the following children: F. D. (or Frank) Barr; Lorena Belle Barr; Cora E. Hicock; Carrie Clanton, and Effie Ross.
“3. Hugh Barr died intestate about November 3, 1907; Mary S. Barr died intestate about December 1, 1913; Carrie Clanton died intestate about August 10, 1906, and leaving as her sole heir her daughter, Yessie Smith, the plaintiff herein; Effie Ross died intestate in the early part of the year 1918, leaving as her sole heirs her husband, Charles Ross, her son, John Ross, and her daughter, Eva Ross, defendant herein; Cora E. Hicock died intestate about January 21, 1927, leaving as her sole heir C. A. Roscoe, her husband, one of the defendants herein; Lorena Belle Ban died intestate about December 1, 1928, leaving as her sole heirs the said Vessie Smith, F. D. Barr, John Ross and Eva Ross; the said Lorena Belle Ban- never married and left no husband or issue surviving her. The said F. D. Ban- is the sole living child of the said Hugh Barr and Mary S. Barr.
“4. Under date of May 25, 1906, the said Hugh Barr and Mary S. Barr made, executed and acknowledged an instrument in writing, a true copy of which is attached to the cross petition of the defendant F. D. Barr and marked ‘Exhibit A.’ This instrument of writing was deposited with the probate court of Miami county, Kansas, by the makers, and the same was indorsed as follows: ‘Filed for record in the office of the probate court on December 11, 1908, and recorded in journal L, page 446 therein.’
“5. No delivery of said written instrument has ever been made to any of the persons named therein. No evidence of the attempt to secure the possession of said written instrument was presented to the court, although the parties named in said written instrument knew of its existence, its contents, and that it was in the files of said probate court.
“6. Hugh Barr and Mary S. Barr occupied the premises described in said written instrument for their lifetime, and until December 1, 1913, the date of the death of Mary S. Barr.
“7. Lorena Belle Barr, who was an invalid daughter of Hugh Barr and Mary S. Barr, held possession of said real estate from December 1, 1913, until December 1, 1928, the date of her death.
“8. The defendant Emery Parks is now occupying said real estate as a, tenant under a written lease, a true copy of which is attached to his answer filed herein, marked ‘Exhibit A.’
“Amended Conclusions op Law.
“1. There never was a delivery of said instrument of writing, which was placed on file in the probate court of Miami county, Kansas, to the grantee therein named, nor to any of the other persons whose names appear therein.
“2. Said instrument fails to convey the real estate therein described to> anyone, either as a deed or as a testamentary instrument.
“3. The heirs of Hugh Barr, Mary S. Barr, Carrie Clanton, Effie Ross, Cora E. Hicock and Lorena Belle Barr are the owners in common of the said reaE estate, under the laws of descents and distributions of the state of Kansas, in the following respective shares and proportions: F. D. Barr is owner of an undivided sixteen-sixtieths (16/60); C. A. Roscoe is owner of an undivided twelve-sixtieths (12/60); Vessie Smith is owner of an undivided sixteen-sixtieths (16/60); Charles Ross is owner of an undivided six-sixtieths (6/60); John Ross is owner of an undivided five-sixtieths (5/60); Eva Ross is owner of an undivided five-sixtieths (5/60).
“4. The defendant Emery Parks, tenant on said real estate, is entitled to occupy the same as such tenant for the crop year of 1929. The owners of said real estate are entitled to the shares in the rental of said real estate in accordance with their respective interests in said real estate.
“5. The plaintiff is entitled to have said land partitioned to the owners thereof in accordance with their respective interests therein, if the same can be done without manifest injury, and if not, then that said land be sold as provided by law.”
One of the questions presented concerns the character of the instrument executed by Mary Barr and Hugh Barr. Could it take effect as a will? The instrument was as follows:
“Life Lease With Stipulations and Conditions.
“This indenture, made this Twenty-fifth (25th) day of May, a. d. one thousand nine hundred and six (1906), by and between Mary S. Barr and Hugh Barr, wife and husband, of Miami county, in the state of Kansas, parties of the first part, and Lorena Belle Barr, daughter, of Miami county, in the state of Kansas, party of the second part:
“Witnesseth, That said parties of the first part, for and in consideration of the sum of one dollar ($1), and love and affection, the receipt of which is hereby acknowledged, do by these presents grant, bargain, sell and convey unto the said party of the second part, for her sole use and benefit during her lifetime, all the following-described real estate situated in the county of Miami and state of Kansas, to wit:
“The west half (%) of the southwest quarter (14) of section number twenty-five (25), in township number seventeen (17), of range number twenty-two (22), east of the 6th principal meridian, in said Miami county, Kansas, less schoolhouse lot, in the southwest corner of said land, which lot was heretofore deeded to school district No. twelve (12), in said county, for school purposes.
“To have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, subject, however, to the following stipulations and conditions:
“(1) That the said parties of the first part shall continue to retain and have full and complete control and possession of said described premises, .the same as they have heretofore had, during their lifetime, or during the lifetime of either of them.
“(2) That at the demise of both of the said parties of the first part, then and in that event the said party of the second part shall come into immediate and complete possession of said premises and continue to so remain during her lifetime, receiving for her sole use and benefit, the rents, issues and profits thereof, residing on said premises or otherwise, as the said party of the second part may elect.
“(3) It is a part of the consideration herein that the said party of the second part accepts the use and benefits of said described premises with the distinct understanding and agreement that the said party of the second part is to in no wise alienate said life lease, neither to mortgage or otherwise encumber the same. That the said party of the second part is to pay all taxes or other assessments which may accrue on said premises, after she shall have come into possession of the same, and to keep the same free and clear of and from all judgments, liens, grants, titles, charges, assessments or other encumbrances.
“(4) In the event that the said party of the second part shall become incapacitated, by reason of old age or mental infirmity, to care for and manage said premises, then and in that event only, it shall be the duty of the then acting district judge and probate judge of said Miami county, Kansas, to act as trustee for the said party of the second part, and should such contingency as aforementioned arise, the then acting district judge and probate judge are hereby appointed such trustees by the said parties of the first part.
“(5) When said life lease herein given to the said party of the second part shall terminate, then said described premises shall revert to the surviving heir or heirs of the said parties of the first part, which said heirs are, respectively, as follows: Cora E. Hicoek, Carrie Clanton, Effie Ross, daughters, and Frank D. Barr, son, each share and share alike, except, however, that the said he, the said Frank D. Ban-, shall be entitled to his said share.
“And the said parties of the first part, the said Mary S. Barr, and Hugh Barr do hereby covenant, promise and agree to and with the said party of the second part, the said Lorena Belle Barr, that they are lawfully seized in their own right, of an absolute and indefeasible estate of inheritance, in fee simple of and in all and singular the above-described premises; that the same are free, clear and discharged of all encumbrances whatsoever, and that they will warrant and defend the same unto the said party of the second part as above set forth.
“In Witness Whereof, the said parties have hereunto set their hands the day and year first above written. Mary S. Barr.
Hugh Barr.
“State of Kansas, county of Miami, ss:
“Be it remembered, that on this 26th day of May, a. d. 1906, before me, the undersigned, a notary public in and for the county -and state aforesaid, came Mary S. Barr and Hugh Barr, wife and husband, who are personally known to me to be the same persons who executed the within instrument of writing, and such persons duly acknowledged the execution of the same.
“In Testimony Whereof, I have hereunto set my hand and affixed my official seal the day and year last above written.
"(Seal) H. A. Floyd, Notary Public.
“My commission will expire March 25, 1907.
“Filed December 11, 1908. — Thos. Hodges, Probate Judge.
“Recorded in journal L, page 446.”
The instrument could not take effect as a will because it was not witnessed in the manner prescribed by law. (Ammon v. Ammon, 119 Kan. 164, 237 Pac. 926; Purcell v. Baskett, 121 Kan. 678, 249 Pac. 671.)
The instrument which has just been set out was in form a deed and, if delivered to any one of the grantees named therein, it would take effect as such. However, there was no evidence to show that the deed was delivered to any person except to the probate court, and that it was there recorded. No instructions to the probate court were shown. It probably was delivered to the court under the theory that the instrument was a will. Placing a deed in the office of the register of deeds to be there recorded has been held to raise a presumption of delivery of the instrument. (Kelsa v. Graves, 64 Kan. 777, 68 Pac. 607; Neel v. Neel, 65 Kan. 858, 69 Pac. 162; Balin v. Osoba, 76 Kan. 234, 91 Pac. 57; Miller v. Miller, 91 Kan. 1, 136 Pac. 953.) The office of the probate judge was not a proper place in which to deposit or record the instrument if it was intended for delivery as a deed. That might have been a sufficient delivery if the facts were such as to permit the inference to be drawn that the deposit in the probate court was intended to be a delivery of the instrument as a deed. The inference to be drawn from the fact that the instrument was deposited and recorded in the office of the probate judge is that delivery was not then intended. The proper inference is that it was intended the instrument should take effect from and after the death of the grantor. That would make the instrument testamentary in character. It could not take effect as a will because it was not witnessed as required by law. The trial court found that the instrument had not been delivered. The evidence justified that finding.
Other matters are presented, among which is the contention that the appellees are estopped to question the delivery of the deed. All have been examined, but the court does not deem them of sufficient merit to discuss them other than as has already been done.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for breach of the provisions of an oil lease relating to use of shackle rods in operating for oil, and for abatement of the shackle rods as a nuisance. A demurrer to plaintiff’s evidence was sustained, and he appeals.
The lease was executed on May 2, 1901, by Joseph D. Snavely and his wife, and by Lillie M. Snavely and her husband, the plaintiff. The lease included land other than the particular tract involved in this action, and some years after the lease was executed the particular tract was set off to Lillie M. Snavely. She continued to own it until 1927, when she deeded to plaintiff. Plaintiff testified that before he received his deed he had no title to the land except as husband of Lillie M. Snavely, and that whatever he did about the land he did as agent for his wife. The lease granted such—
“privileges on said land as may be necessary in operating for, producing and removing said oil and gas in a workmanlike and economical manner, including the right to use shackle work in operating the wells which may be drilled thereon, either alone or in connection with wells on adjoining lands; said shackle work shall be placed high enough to allow the land to be worked with teams. ... No shackle rods to be put across cultivated lands without the consent of parties of the first part.”
Between 1901 and 1919 defendant drilled and operated several oil wells. In the latter year defendant made a change in its method of operating the wells. A power plant was established on the land at its present location, and shackle rods for pumping wells on the land and other land were installed as they now exist. The rods are from two to four feet from the ground, and are supported in such a way that they may be laid on the ground.
In 1921 Lillie M. Snavely and her husband, the plaintiff, entered into an agreement with defendant whereby defendant surrendered a portion of the leased premises. The written instrument of surrender recited that, whereas defendant had a valid and existing oil lease of the entire tract, and the parties had agreed respecting release of part of it, defendant surrendered a described portion on consideration that drilling and operation of any additional wells on the portion not surrendered should be “wholly within the judgment and discretion” of defendant.
In 1926 Lillie M. Snavely was divorced from plaintiff. On December 14, 1927, Lillie M. Snavely, “a widow,” executed a warranty deed of the tract to plaintiff. The deed was acknowledged in San Jose, Cal., and was filed for record on January 4, 1928. On February 7, 1928, Lillie M. Snavely executed the following instrument:
“Assignment.
“I owned [description], from September 26, 1905, until on or about December, 1927, at which time I sold and conveyed it to Stephen A. Snavely.
“This land was leased to the Prairie Oil and Gas Company for oil and gas development purposes, and it holds the lease yet, and operates thereon more or less.
“The lease provided that the lessee should place its shackle rods high enough so teams could pass under them in farming operations, and it also- provided no shackle rods should be placed on or over tillable land without the consent of the lessors, and I never gave my consent for that. The lessee never put its shackle rods high enough for teams to pass under them in farming operations, and I never gave consent for any change in that regard, or in any other regard. But notwithstanding, the lessee put shackle rods on and over the land in different places, and leading off in different ways, and over cultivatable land, and to the loss and damage of my premises, and to me, to the extent the tillable land could not be farmed, and it is maintaining them- yet. I do not know when the shackle rods were put in.
“For and in consideration of one dollar, and other good and valuable considerations, the receipt of which is hereby acknowledged, I sell and assign to Stephen A. Snavely all right, title and claim I have against the Prairie Oil and Gas Company for all the damages done me or on the land while I owned it.”
The action was commenced on March 20, 1928. The petition pleaded provisions of the lease relating to shackle work, and breach of the provisions by reconstruction of the pumping system in 1919. There was an allegation that since the shackle rods were installed the land had not been cultivated, and Lillie M. Snavely and plaintiff had been deprived of use of the land for a period of eight years. A fair rental value of the land was $150 per year, and the loss and damage on account of that item was $1,200. Because the land had not been cultivated it had become overgrown with shrubs and trees, which had to be cleared off, causing additional damage of $100. Maintenance of the shackle rods constituted a continuing nuisance. The assignment from Lillie M. Snavely to plaintiff was pleaded. The prayer was for damages in the sum- of $1,300, and abatement of nuisance.
At the trial, which occurred in April, 1929, plaintiff introduced in evidence the lease, his deed, and his assignment, and testified concerning obstruction of farming operations by the shackle rods since they were installed in 1919. Plaintiff testified he could not farm the land for the shackle rods, he could not rent the land to anybody, and he would not farm it himself. The statement was stricken out, and properly so. Plaintiff could not determine the case in such summary fashion. It was incumbent on him to produce some facts from which the jury might determine whether the land could be farmed, or rented for farming purposes. For the same reason plaintiff was not permitted to say whether it was “practicable” to farm the land with shackle rods on it.
Plaintiff testified the land had been partly plowed, and partly not, for the last ten years, but you could not do a good job of plowing. You could plow right up to the shackle rods, and you could drive a team of horses across them if you laid them down. Plaintiff testified a tenant named Taylor was on the land in 1919, and had it in wheat. Plaintiff testified he did not know whether the land was rented in 1920, but it might have been. He thought the land was rented in 1921. He did not know whether the land was rented in 1922. There was a man named Meyer whose boy was tenant and farmed the land about 1923. Plaintiff did not know whether the land was farmed in 1924, but there was a man named Hulbert who was a tenant on the land, farmed part of it, shucked his corn, and quit. Plaintiff said Hulbert could not farm all of the land because of the shackle rods. Plaintiff also testified he rented a little of the land to a fellow named Holverson a few years back. Plaintiff said Holverson could not do anything with the shackle rods. Plaintiff said he could not tell whether the land was farmed in 1926 or 1927, but he testified as follows:
• “Q. How about 1928 — that is, last year — was that land farmed last year? (No answer.)
“Q. It was in com, wasn’t it? A. Yes, sir.
“Q. The whole tract? A. A darky had it in corn.
"Q. Mr. Snavely, was this tract here planted in com in 1928, in between wells 5 and 6? [Shown on plat.] A. That over east?
“Q. Yes. A. Yes, sir.
"Q. Was this in corn, between these shackle rods, last year? A. Yes, sir.
“Q. Was this tract down here in corn in 1928? A. Part of it.
“Q. Between the shackle rods to No. 3 and the creek, was that in corn in 1928? A. Part of it; some of it was.
“Q. Was this in com, .up along here, west of the power station, and towards the creek; was that in com? A. Yes, sir.
“Q. Was this, between well No. 5 and the shackle rod running off north; was it in corn last year? (No answer.)
“Q. Was it in corn in the northeast corner last year? A. Yes, sir.”
There was testimony that for lack of proper cultivation some of the land had become covered with persimmon sprouts, and plaintiff testified to the number of days he had spent, and which' he would have to spend, in grubbing the sprouts. His labor was worth $3 per day. Plaintiff’s brother testified the land can be farmed, but the shackle rods are an inconvenience. He said you can farm a strip, no matter how small, if you can turn a team of horses there, and while farming can be done, it is bad farming.
There was testimony that the rental value of the land without shackle rods upon it was four to five dollars per acre per year.
Prom 1903 to 1906 plaintiff lived in Oklahoma. From 1906 to 1924 he lived in New Mexico. He also lived some time in western Kansas, but he could not tell when; he paid no attention to dates. He said he came back from New Mexico about three times while he lived there, and he finally came to Neodesha about four years before the trial.
As indicated, plaintiff alleged in his petition that shackle rods were erected in 1919, which were not high enough to permit the land to be worked with teams, and because of this breach of the provisions of the lease the land had not been cultivated, and the owners had been deprived of its use, for eight years (1919 to 1928). Plaintiff did not simply fail to prove the allegations of the petition; they were disproved by plaintiff’s own testimony. All plaintiff did was to make out a case of farming hindered but not prevented by the rods. He was careful to show no returns from the various tenants and cultivators of the land, but the statement in his brief that no crops were raised after the shackle rods were installed is not merely unsupported by any evidence, it is contradicted by all the evidence there was on the subject. Perhaps plaintiff might have been entitled to go to the jury on difference in rental value of the land with shackle rods upon it, and without shackle rods, if he had made any-proof of such damages. In making his proof he adhered to the theory of the petition, and stopped with proof of rental value of the land without shackle rods upon it.
Plaintiff makes a collation of cases relating to how a demurrer to evidence must be considered by the trial court and on appeal. The court is perfectly familiar with all the rules pertaining to that subject. Leaving out of account the testimony of plaintiff’s brother, which was apparently fair and reasonable, and which destroyed plaintiff’s theory of the case, plaintiff’s own testimony was conclusive that the land has been and can be rented, and has been and can be cultivated, notwithstanding the shackle rods. As the opinion in the case of Acker v. Norman, 72 Kan. 586, 84 Pac. 531, shows, the decision in that case has no application to plaintiff’s testimony summarized above.
The foregoing disposes of the incidental subject of growth of persimmon sprouts. Plaintiff testified there have always been persimmons all over a part of the land; if the land is plowed they do not bother. In a period of eighteen years, 1906 to 1924, plaintiff came to the fariq about three times. He could give no account of the. land for the years 1926 and 1927; that is, from about the time of the divorce to the time of the deed to plaintiff. Plaintiff gave.no testimony that he or his wife ever made an effort to procure a tenant which failed because there were shackle rods on the land. The land was rented for the year 1928, and was substantially all in corn. The result is, there was no proof that the land became a wilderness of persimmon bushes because shackle rods were erected in 1919.
Besides what has been said, plaintiff acquired his right to sue for damages occurring previous to December 14, 1927, by assignment from his former wife. She could not assign a claim for damages for tort. She could not assign a claim arising out of tort, which gives right of action on “implied contract,” except for benefits to defendant’s estate. (Hewey v. Fouts, 91 Kan. 680, 139 Pac. 407.) The action was not prosecuted on that theory, and damages on that theory were neither alleged nor proved. The assignment was of a claim for damages for breach of an express contract to erect shackle rods in a certain way. There has been just one breach of that contract. The breach occurred in 1919, through reconstruction of defendant’s pumping system, which still stands just as it was installed in 1919. Plaintiff testified that in 1921 or 1922 he complained to defendant, for his wife and on his own account, of- the way the shackle rods were placed. There were negotiations between plaintiff and defendant, which came to nothing. Plaintiff then knew or should have known the pumping system was permanently established. Defendant pleaded the statute of limitations. Plaintiff pleaded and proved breach of the contract in 1919, authorizing recovery for permanent injury, and so established the defense. (Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631; McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899; Taylor v. Newman, 91 Kan. 864, 139 Pac. 369; Fever v. Railway Co., 100 Kan. 266, 164 Pac. 159.)
The subject of abatement of nuisance was one for the court and not for the jury to consider. Abatement of nuisance was asked on the ground that since 1919 the land had not been and could not be farmed because of the shackle rods. Plaintiffs evidence was to the contrary. Besides that, the alleged injury occurred in 1919. On the evidence introduced no court would consider destruction of plaintiff’s pumping system. The most that might be considered would be specific performance of the contract, and that remedy has long since been lost by laches and limitation.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harvey, J.;
This is an action to enjoin the collection from property of plaintiffs of special assessments for the paving of a street. The trial court made findings of fact and rendered judgment for defendants. Plaintiffs have appealed.
The city of Wellington is a city of the second class operating under the mayor and commission form of government. In May, 1922, there was presented to the .board of commissioners of the city a petition for the paving, curbing and guttering of several blocks of Olive street in that city. The proceeding was undertaken under the provision of that part of section 1764, General Statutes .of 1915 (revised in R. S. 12-602), which reads as follows:
“That whenever a majority of the resident property owners fronting on a street in two or more adjacent blocks shall petition the council to grade, pave, macadamize, curb, gutter, or regrade, repave, remacadamize, recurb, regutter, or otherwise improve the same the council shall cause such work to be done, or such improvement to be made, and shall contract therefor, and shall levy taxes for all such improvements, as herein provided, upon the abutting property.”
In determining who were qualified petitioners under this statute it was held, in Clarke v. Lawrence, 75 Kan. 26, 88 Pac. 735, that each resident owner should be counted without regard to the quan tity of property, or interest therein, owned. “It provides for a count of noses . . .” (p. 33.) The petition was referred to the city attorney, who reported to the board of commissioners that he had made an investigation as to the ownership of property liable to taxation for such improvement and found there were forty-five resident property owners, and that twenty-nine of them- had signed the petition, and that the board had jurisdiction to proceed with the paving. The board of commissioners proceeded to have the engineering work done, let the contract and appointed appraisers to determine the benefits to property owners, and on September 5, 1922, passed an ordinance, to take effect in ten days, assessing the cost of the improvement to the respective tracts of property. On October 13, 1922, plaintiffs filed, this action to enjoin the collection of that assessment. As grounds for the relief sought the petition alleged, in substance, that defendants, without lawful right, power, or authority, had caused Olive street to be excavated, tom up, and the sidewalks broken up and mutilated, and had placed a cement curbing so as to cut off ingress and egress to one lot and so as to obstruct and dam up the water on other lots, and that defendants had unlawfully, and without authority so to do, gone through the formality of appointing appraisers to appraise the lots and tracts abutting Olive street, but with the purpose and intention of entirely disregarding whatever appraisers might make and return, and that the appraisers did not make a true and fair appraisement. Without quoting from the.petition it is sufficient to say that it attempted to charge, at some length, an unlawful and ■ fraudulent appraisement. Motions and demurrers were:;filed to .this petition, and on February 26, 1923, plaintiffs filed an amendment to their petition in which it was specifically averred that the petition for the pavement presented to the board of commissioners in May, 1922, was not signed by a majority of the property owners. An answer was filed and a motion to make that more definite and certain. The action dragged its weary way until called for trial October 20, 1927, when defendants, by leave of court, filed an amended answer in which was raised the question of the thirty-day statute of limitations. A part of the evidence was taken on that day and the next, and the case was passed for further evidence and argument. The trial was resumed October 30, 1928, when the evidence was concluded and the case passed for argument. On De cember 18, 1928, the trial was resumed, the case was argued and passed for consideration. On March 20, 1929, the further hearing of the case was resumed, and the court made findings of fact and conclusions of law which were filed March 22, 1929.
The court found that pursuant to the petition the commissioners appointed appraisers, who made an appraisement of the property, and that there was no proof of fraud in the appraisement. Appellants complain of findings on this question, but the complaint lacks merit. The evidence discloses that the appraisers found that the respective pieces of property abutting the pavement would be benefited by the improvement in proportion to the front footage of the property thereon. There is no evidence that this is not true.
Appellants complain of the court permitting defendants to plead at so late a date the thirty-day statute of limitations, and argüe that their amended petition should relate back to the time of the filing of their original petition. Argument on this point is of no consequence here for the reason that the trial court found it unnecessary to decide the application of the statute of limitations of thirty days to the amended petition. In fact the trial court treated the pleadings of plaintiffs as raising all the questions necessary to determine the sufficiency of the original petition presented to the board of commissioners.
The principal question determined by the trial court, and the only question of consequence on this appeal, was whether the petition for the street improvement presented to the board of commissioners was signed by the requisite number of property owners. On this point counsel agreed by stipulation on a list of forty resident owners of property subject to assessment for the improvement. The court found that two persons, Peter Hon and Icy Holliday, appear as petitioners for the improvement, but are not on the stipulated list, and that three other persons, Melinda Hall, Lena Hall Ellis, and a daughter of Icy Holliday, were resident property owners whose names do not appear on the list. The court found that each of these was a competent petitioner whose name must be added to the stipulated list, making a total of forty-five persons shown to be competent to sign. The court further found:
“Nineteen of the names in the admitted list appear on the petition in evidence; and it appears and the court finds that there was another sheet of the petition, now lost, bearing the signature of four additional petitioners, who must be presumed to be competent and made up of those appearing to be competent, but whose particular identity cannot be ascertained. The nineteen admitted names, the four other names, and Hon and Holliday, make a total of twenty-five signers, two more than the required twenty-three.”
Appellants complain of this finding, and especially of that part of it with respect to “another sheet of the petition, now lost, bearing the signature of four additional petitioners.”
With respect to the petition, the evidence is substantially as follows: At the first hearing of testimony in this case, in October, 1927, the petition could not be found. It was found and produced in court at a later hearing. It had been found by the city clerk not among the papers for this paving, but at a place in the vault where such papers were not kept. As brought to court it consisted of two sheets pasted together, the two containing twenty-five names. There were holes in the paper near the end as though another sheet had been pinned or fastened to it. The city clerk, at the time the petition was presented and for several years later, testified that when the petition was first presented and turned over to the city attorney he handed it back a few days later with the request that some additional names be added, and that additional names were added to the petition on a separate sheet. Many times while she was clerk some one called for and examined this petition. The city clerk owned property abutting the street to be paved, was well acquainted in the city, and had a personal recollection that when the petition was finally presented to the board of commissioners it contained the names of twenty-nine petitioners. The city attorney had not only his recollection and that of his secretary on the matter, but his letter to the board of commissioners, written at the time and advising them as to their right to proceed, stated that the petition contained twenty-nine names. On the petition, or that part of it produced in court at the later hearing, there were four names — Gwinn, Gwinn, Seaton and Parker, whom, plaintiffs contend, were not qualified to sign it. The twenty-five whom the court found had signed, plus these four, made the number twenty-nine, remembered by the city clerk and stated in the letter by the city attorney. The court therefore had competent evidence on which to base the findings that there was an additional sheet of the petition, now lost, which contained four additional names of resident property owners. Quite a little is said in the briefs as to whether these four names, questioned by plaintiffs, should have been counted. Since the court did not count them, appellants cannot complain. The only purpose in mentioning them here is to show how the total number found by the court tallied with that found by the city attorney at the time of his examination of the petition and with the testimony of the city clerk.
The trial court, having found the petition presented to the board of commissioners had the requisite number of qualified signers, and that finding being supported by evidence, and there being no contention that the subsequent proceedings were invalid, or even irregular, except the question with reference to the appraisement, which we previously held to be without merit, there is nothing to justify the granting of the injunction prayed for, and the trial court committed no error in refusing it.
Some other questions are discussed in the case, but they have no bearing on the questions determinative of this appeal.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff recovered judgment against the defendant on a health and accident insurance policy, and the defendant appeals.
The plaintiff alleged that the defendant had issued to him, on August 26, 1927, a policy insuring him “against disability resulting from external, violent, and accidental means”; that on the 5th day of December, 1927, he was externally, violently, and accidentally injured in the manner set out in the petition; that at the expiration of the first month of disability arising from the accident, but before it was discerned that the disability was permanent in character, the defendant paid to the plaintiff the sum of fifty dollars under the policy; and that since that time the defendant has neglected, failed and refused to pay the plaintiff any further sum. The plaintiff asked judgment for $2,300.
The policy contained the following provisions:
“Part 1. The Liberty Life Insurance Company . . . will maintain this policy in force against—
“Part 2. (1) The effect resulting exclusively of all other causes from bodily injury sustained during the life of this policy solely through external, violent and accidental means . . . subject to all the conditions, limitations and exclusions and within the amounts hereinafter expressed, said bodily injury so sustained being hereinafter referred to as ‘such injury,’ and,
“(2) Disability resulting from illness which is contracted and begins during the life of this policy and after it has been maintained in continuous force for fifteen days from its date, subject to all the conditions, limitations and exclusions and within the amounts hereinafter expressed, said illness so contracted and beginning, being hereinafter referred to as ‘such illness,’ as follows:
“Part 3. Principal sum, $200; monthly accident indemnity, $50; monthly sickness indemnity, $50.
“Part 5. Or if such bodily injury shall not result in any of the losses enumerated in Part 4, but shall from the date of such injury directly, wholly and continuously disable and prevent the insured from attending to any and every kind of duty pertaining to any gainful occupation, the company will pay him the monthly indemnity specified in Part 3 so long as the insured lives and suffers such total disability, not exceeding twenty-four consecutive months.
“Part 6. If any such sickness contracted by the insured, during the term of this policy, or any renewal thereof, and not herein excepted, and for which the insured is regularly treated by a legally qualified physician, necessarily and continuously prevents the insured from performing any and every kind of duty pertaining to any gainful occupation, the company will pay the insured for the period of total loss of time not exceeding six consecutive months, the monthly indemnity specified in Part 3.
“Part 9. Standard Provisions. ... (7) Affirmative proof of loss must be furnished to the company at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the company is liable, and in case of claim for any other loss, within ninety days after the date of such loss. ... (9) All indemnities provided in this policy for loss, other than that of time on account of disability, will be paid within thirty days after receipt of due proof.
“(10) Upon request of the insured and subject to due proof of loss, all of the accrued indemnity for loss of time on account of disability will be paid at the expiration of each thirty days during the continuance of the period for which the company is liable and any balance remaining unpaid at the termination of such period will be paid immediately upon receipt of due proof. . . .
“(14) No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of the loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within five years from the expiration of the time within which proof of loss is required by the policy,
“Part 10. Additional Provisions. ... (6) If the insured is disabled for more than 30 days he or his representative shall furnish the company every 30 days, or as near thereto as may be reasonably possible, a report in writing from the attending physician or surgeon fully stating the condition of the insured and the probable duration of disability.”
The answer consisted of a denial of the allegations of the petition. No affirmative defense was pleaded. The abstract of the defendant contains the following:
“After the accident Mr. Hunsaker, the agent of the Liberty Life Insurance Company who took his [plaintiff’s] application, saw him. He gave him a report blank which he sent in. Following that he received $50 from the Liberty Life Insurance Company. The company also had him examined by two doctors, Doctor McKay and Doctor Ulric. He also testified that a few days before the trial defendant’s attorney requested him to go to Doctor Smith’s office in Pittsburg for an examination, but that when the attorney learned that Doctor Smith had taken some X-ray pictures ‘he said that was all he wanted.’ ”
The counter abstract discloses that the defendant in its trial statement to the jury said:
“Gentlemen of the jury, the reason that the defendant refused to pay the plaintiff any more than $50 on his claim, in this cause, is that the defendant had the plaintiff examined by doctors, and that such examination disclosed that his disability was not due to an accident, but is due to an overexertion and lame or sprained back on his part, and his claim therefore comes within what is known as the monthly illness indemnity clause of the policy, which provides for only six months indemnity at the rate of $50 per month, and the plaintiff is not entitled to recover any more, and the defendant is entitled to have credited on such sum the sum of $50 already paid by the defendant to plaintiff.”
The jury answered special questions as follows:
“1. Was the plaintiff disabled as the result of an injury received on December 5, 1927? A. Yes.
“If you answer the foregoing question affirmatively, then answer the following :
“1. Was his disability caused by lifting an empty coal car in a coal mine? A.t Yes, and by slipping on some obstacle, coal or slate, etc.
“2. Was said disability caused solely on account of lameness in his back? A. No.
“3. If you answer the last preceding question ‘No,’ then state what else caused his disability. A. Injury to back, right hip and right leg.
“4. Did plaintiff sustain any breaks or subluxations by reason of the injury received on December 5, 1927? A. Evidence does not show.
“5. Has the plaintiff been afflicted from pyorrhea since he become disabled? A. Yes.
“6. If you answer the next preceding question in the affirmative, state' whether the injury was complicated by the poison from the pyorrhea. A. The evidence does not show.
“7. Has plaintiff suffered from rectal trouble since he became disabled? A. No.
“8. Was plaintiff on December 5, 1927, wholly, continuously and permanently disabled and prevented from attending to any and every kind of duty pertaining to any gainful occupation? A. Yes.”
The principal contention of the defendant is that the plaintiff cannot recover because he did not plead and prove a compliance with the conditions of the policy after the injury' was sustained and before this action was commenced. Those conditions concerned the proof of accident and disability. This question was raised by the defendant by a demurrer to the plaintiff’s evidence and by requesting that certain questions be submitted to the jury.. The defendant also urges that the court failed to instruct the jury that it was necessary for the plaintiff to allege and prove that he had complied with the terms of the policy before he can recover. The plaintiff argues that the defendant waived the policy .conditions on which it relies when it made the payment of $50 under the policy. The payment of the $50 will admit of but one construction, and that is, the admission of liability under the policy. In addition to that admission the defendant in its opening statement to the jury admitted liability under, the .policy to the extent of $300, of which $50 had been paid. That compels the conclusion that there was a waiver of the conditions of the policy which the defendant claims were not complied with.
The other proposition urged by the defendant concerns the construction of the terms of the policy. In order not to misstate the contention of the defendant, we quote from its brief as follows:
“Part 10 (2) of the policy provides that disability or loss caused by lame or sprained back, overexertion, etc., shall be considered a sickness, the original cause of such disability notwithstanding, and settlement shall be made in accordance with Part 6.”
Part 10 (2), quoted from the policy as set out in the abstract, reads:
“Part 10. Additional Provisions. (2) Disability or loss caused by lame or sprained back, overexertion ... or any injury complicated with disease shall be considered a sickness, the original cause of such disability notwithstanding, and settlement shall be made in accordance with Part 6.”
Part 6, on which the defendant relies, provides indemnity for disability from sickness and has been heretofore quoted; the plaintiff relies on part 5, which provides for indemnity for disability resulting from accident, and has also been quoted. There was evidence which tended to prove and the jury found that plaintiff’s disability was caused by accident, resulting in injury to his back, his right hip, and his right leg, and that the accident was caused by his foot slipping on some coal or slate when he attempted to lift a derailed coal-mining car.-
The defendant argues that the verdict and judgment are excessive. The judgment was for $1,150. The injury occurred on December 5, 1927. The verdict was rendered on December 14, 1928. The policy provided for twenty-four monthly payments of $50 each, one of which had been made. On eleven payments the plaintiff was entitled to interest. If the question had been properly presented to the trial court the defendant might have been entitled to a discount on the twelve payments that were not yet due. The interest due the plaintiff and the discount the defendant might have had about equaled each other. But this question was not presented to the trial court by the motion for a new trial and is not set out in the specification of errors.
In Toops v. Atchison, T. & S. F. Rly. Co., 128 Kan. 189, 201, 277 Pac. 57, this court said:
“The defendant contends that the verdict ($22,750) was excessive, a contention with which we might be inclined to- agree but for the fact that the defendant appears to be in no position at this time to raise the question. No complaint of the amount of the verdict was made by the defendant in its motion for new trial nor in its specifications of error. Under the oft-repeated rule that alleged errors not presented to the trial court cannot be considered here, we are unable to go into this phase of the controversy.”
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment'in a divorce case and its incidents.
The plaintiff, G.- C. Hay, sued his wife, Mabel M. Hay, for a divorce, charging her with extreme cruelty in that she persistently accused him of infidelities with his female employees, ruined his business by annoying him and them with false and slanderous charges, and was continually threatening to sue him for a divorce, all without just provocation.
Almost simultaneously with the commencement of plaintiff's ac tion, the defendant, Mabel M. Hay, also commenced an action against her husband for a divorce, charging him with marital infidelity. She prayed for a divorce, and for the custody of two adopted minor children, and that certain real and personal property be set over to her.
By agreement of parties and with the approval of the court, the wife’s petition for a divorce was construed as an answer and cross petition to the husband’s petition, and the cause was heard at length on the evidence adduced by the litigants.
Plaintiff’s evidence tended to substantiate the allegations of his petition, at the conclusion of which the record recites:
[Counsel for Defendant] : “We demur to the evidence on the ground that it does not support grounds for a divorce; does not sustain any satisfactory grounds for divorce; and plainly shows that the plaintiff is not entitled to a divorce.
“The Court: Overruled.
[Counsel for Defendant] : “Does your honor think that divorce grounds have been supported here as against a demurrer?
“The Court: Oh, I think so.
[Counsel for Defendant] : “So far as their case is concerned, we rest.
“The Court: You have no evidence to put on?
[Counsel for Defendant] : “So far as they are concerned.
“The Court: You may proceed with your cross petition.
[Counsel for Defendant] : “We have a separate case, your honor.
“The Court: I understand.”
The defendant then adduced her evidence, which tended to show that plaintiff was unduly demonstrative toward one of his women employees in public, and occasionally when he would return from out-of-town journeys his wife would find rouge on the'shoulders of his pajamas.
At the conclusion of the evidence the court took the cause under advisement and eventually gave judgment granting the defendant a divorce and the custody of two -children who had been adopted by the discordant couple — a boy of fifteen years and a girl of three years. The court also awarded to her as her separate property the family residence, which is a five-room house with the two lots on which it is situated, valued at from $1,800 to $2,500. The defendant was also given the household furniture worth about $500, and $1,500 in money, and $50 per month for the support of the children until the elder should attain the age of eighteen years, after which the support money should be $30 per month.
To the plaintiff the court awarded as his separate property seven and one-half acres of Wichita suburban realty variously estimated to be worth from $4,500 to $7,500, a town lot in Texas worth about $450, and the family automobile worth $400, and the office fixtures where he practiced his profession as a private detective.
Defendant filed a motion for a new trial “solely for the purpose of determining the alimony and property settlement to be made between the parties.” This motion was denied, and defendant appeals, and assigns errors as follows:
“First: The trial court erred in overruling the demurrer of the appellant to the evidence of the appellee.
“Second: The trial court erred in granting a divorce in said cause.
“Third: The trial court erred in maldng the property division between the parties.”
Touching these in order, appellee’s evidence was adduced to support the cause of action in which he sought a divorce against appellant. But since he did not prevail in the action, it is now of no consequence whether the court’s ruling on appellant’s demurrer to plaintiff’s evidence was correct or not. Were this not a sufficient answer to the point, our independent perusal of the record would not permit us to hold that the ruling was erroneous. Unless his own marital delinquencies were regarded as sufficient to bar him, the evidence to support his cause of action against his morbidly minded, temperamental spouse was quite sufficient as against a demurrer— especially when it is remembered that in determining the propriety of a demurrer to evidence the truth of all the material evidence must be conceded. (Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008.)
Touching the error assigned on the granting of the divorce, nobody complained about that in the district court. Counsel for appellant say that while she sued for a divorce, she cared nothing about it. In their pleadings both parties asked for a divorce. Between them they have gotten what they sought; neither asked to have the divorce set aside in a motion for a new trial; so it is altogether futile to complain of that here. (Union Nat’l Bank v. Fruits, 124 Kan. 440, 260 Pac. 638.)
Turning, then, to the third specification of error, which, it may be noted, was the only matter urged in appellant’s motion for a new trial, it is difficult for an appellate court which has not seen the litigants and must glean its information from the record to discover any injustice in the division of the property or in the award of alimony. The appellant has salvaged from the wreck of her marriage a home and its furnishings, $1,500 in money and her costs and attorneys’ fees. She is Only thirty-nine years old, and with a reasonable effort she can readjust herself to her new situation. Meantime, also, she will receive $50 per month for the support of the adopted children. The divorced husband, on the other hand, who is not a man of much means, has apparently had his business demoralized through the fault, or partly through the fault, of the appellant. He will have to hustle to rehabilitate that business so as to earn the $1,500 he has to pay the plaintiff, together with the costs and attorneys’ fees in her behalf, and likewise to earn money to pay the monthly award for the support of the children. To carry this burden, the husband comes out of this marital scrimmage with seven and one-half acres of suburban land, an automobile and some office furniture, and debts according to his testimony amounting to $1,927, which by the terms of this judgment will virtually be doubled. Such a situation presents nothing approaching that abuse of discretion which alone will permit this court to interfere with the trial court’s division of property and award of alimony in a divorce case. (Miller v. Miller, 97 Kan. 704, 156 Pac. 695; Blair v. Blair, 106 Kan. 151, 186 Pac. 746; Gerlecz v. Gerlecz, 117 Kan. 198, 230 Pac. 1032; Newton v. Newton, 127 Kan. 624, 274 Pac. 247.)
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
In this action the plaintiff, claiming to be the owner of a tract of land in Cherokee county, asked that he be declared to be the owner of the tract and that his title to it might be quieted as against the defendant, Eliza J. Morgan, who is in possession, claiming ownership. The defendant prevailed, and plaintiff appeals.
After the commencement of the action the Robinson-Patterson Coal Company transferred its rights to Henry Jenkins, by a quitclaim deed, and the litigation has since proceeded in the name of the coal company without the substitution of Jenkins, in accordance with R. S. 60-415. It is conceded that the title was originally in one Durkee, and that on May 5, 1905, he executed a deed to the land to Holmes, which is alleged to have been a mortgage. On June 29, 1911, Holmes conveyed it by quitclaim deed to Sama; that in June, 1915, Sama conveyed it by quitclaim deed to the coal company, the nominal plaintiff; that the coal company in September, 1922, by a quitclaim deed conveyed it to J. H. Robinson, its president, and that later he executed a quitclaim deed purporting to convey the land to Henry Jenkins. Upon the testimony the court found that the deed from Durkee executed on May 4, 1905, was given solely for the purpose of. securing a loan of money obtained by Durkee from Holmes, and was a real-estate mortgage only. The debt to Holmes was paid in full and the mortgage securing the same was canceled and satisfied prior to the execution of the quitclaim deed from Robinson to Jenkins. On September 7, 1920, a tax deed was executed by the county to Eliza J. Morgan, which was filed for record, and because of an error therein a corrected tax deed was executed by the county on June 4, 1925, and she has been in possession of the property continually since the execution of the tax deed on September 7, 1920. The court found that Jenkins had no title to the property or interest in it and has no authority or right to contest the validity of the tax deed or the possession of the property by the defendant. Judgment was therefore given in her favor.
Although the conveyance of Durkee was in form an absolute deecl i>f conveyance, it was clearly shown to have been in fact a mortgage given to secure the payment of a loan. The loan, it appears, was fully paid and the mortgage lien extinguished. It is well settled that one holding under such an instrument is only a lienholder and the character of the instrument may be established by any competent evidence, parol or otherwise. ’ This rule has been frequently announced and applied. See cases from Moore v. Wade, 8 Kan. 380, to Republic Mut. Fire Ins. Co. v. Johnson, 128 Kan. 323, 278 Pac. 48. The mortgagee or his assigns therefore acquired no title and had no interest of any kind in the land to convey. The instruments of conveyance acquired by each grantee were all quitclaim deeds which by their terms cast a doubt on the title and put purchasers on notice as to the title and as to all outstanding equities and interests in the land. (Johnson v. Williams, 37 Kan. 179, 14 Pac. 537; Lasley v. Stout, 90 Kan. 712, 136 Pac. 249.) None of these holders of the quitclaim deeds ever went into possession of the land, and' the defendant, who procured a tax deed from the county thereon in 1920, has been in possession of it since that time. The court correctly ruled that Jenkins had no title to the land, nor any right to ques tion the validity of the title of the defendant. It is not necessary to consider the objections of Jenkins to the regularity of the tax proceedings.
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The opinion of the court was delivered by
Jochems, J.:
Plaintiffs brought an action to set aside and hold void an ordinance of the city of Nickerson, vacating Kinney street in that city and to enjoin the defendants from fencing in a portion of the vacated street, or in any manner interfering with the free use thereof by the public. Judgment was entered for the defendants, and plaintiffs appeal.
Plaintiffs claim that the ordinance vacating the street was null and void; that the vacation was for the exclusive benefit of the defendant high school and not for the benefit of the public at large. They further claim that the vacation of the street would unlawfully deprive them of access to their lots situated in Kinney’s second addition.
We will discuss the claims of plaintiffs in their order.
Was the ordinance void? It is claimed by plaintiffs that inas much as there was no resolution declaring that the governing body deemed it necessary to vacate the street, and the ordinance itself did not state that the council deemed such action necessary, the ordinance was void. No resolution was adopted. The ordinance did not set forth any declaration of necessity or expediency. It was a short enactment declaring—
“Section 1. That Kinney street in Kinney’s addition to the city of Nickerson, Kansas, be and the same is hereby vacated.”
The trial court in rendering its opinion said:
“The passage of the ordinance is equivalent to declaring the necessity and expediency, and in my opinion it is not necessary that any preceding resolution or action be taken by the council, and such ordinance is a valid ordinance.”
The ruling is correct. The city acted under R. S. 14-423, which reads:
“The council shall have power to open, widen, extend or otherwise improve :any street, avenue, alley or lane, and also to vacate or discontinue the same whenever deemed necessary or expedient. . . .”
The statute does not require a declaration of necessity, either by resolution or in the ordinance itself. From the passage of the ordinance the necessity or expediency is implied and will be presumed in the absence of evidence to the contrary. (43 C. J. 526, § 808.) In State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873, the syllabus reads:
“Where an ordinance which has been regularly passed by a city council and .approved by the mayor is offered in evidence,.and the validity of such ordinance depends upon the existence of one or more facts at the time of the enactment thereof, the existence, and not the nonexistence, of the necessary facts to sustain the .validity of the ordinance should be presumed in the ab.sence of evidence to the contrary.”
In 2 McQuillan on Municipal Corporations, p. 1480, § 680, it is said:
“It is of the nature of legislative bodies to judge of the exigency upon which -their laws are founded; and when they speak, their judgment is implied in the law itself.”
The plaintiffs did not introduce any evidence showing a lack of necessity, but claim that since defendants did not see fit to stand upon the ordinance but went ahead and introduced evidence, plaintiffs are entitled to benefit by the weakness of the showing made iby the defendants. True, the trial court found:
“. . . Nor was there any evidence introduced to show that the council had deemed it necessary or expedient other than the ordinance itself.”
But the court did not find, on the other hand, that any evidence was introduced showing that in fact the action was unnecessary and inexpedient. Neither can we so find from the record.
The second claim of plaintiffs is that the vacation was for the sole benefit of the high school and not for the benefit of the public at large. In 13 R. C. L. 69, 70, it is said:
“The question of the necessity of closing a street or highway, as distinguished from the question of public purpose or use, belongs exclusively to the legislative department of the government. So where the power exists in a municipality, it is for the municipal authorities to determine when it shall be exercised, and their action in this regard will not be reviewed by the courts in the absence of fraud, or a manifest abuse of discretion. The court cannot control or revise such decision on the ground of inexpediency, injustice or impropriety. Nor will it inquire into the motives of the tribunal to which the matter is committed where there is no allegation of fraud, or unless it is manifest that a flagrant wrong has been perpetrated upon the public and valuable rights have been surrendered ostensibly for the public good, but really for the benefit of private individuals. . . . The presumption is that a, street' or highway was vacated in the interest of the public and that its vacation was necessary for public purposes, and the burden of showing to the contrary will be put upon the persons who object to the proceeding.”
The matter is further discussed in 43 C. J. p. 297, § 312:
“As a general rule the motive of the governing body of a municipal corporation in passing an ordinance or regulation does not affect its validity. It is generally held that courts cannot inquire into the motives of members of a municipal council or other municipal governing body for the purpose of determining the validity of ordinances or regulations enacted by them in the-exercise of their powers. Some courts in stating the rule have qualified it in. various language, as for instance, that the legislative motive will not be considered except as it may be disclosed on the face of the ordinance or regulation, or inferable from its operation and effect.”
Again in 3 McQuillan on Municipal Corporations, p. 2990, § 1403, it is said:
“The true rule seems to be that a municipality cannot vacate a street or a, part thereof for the sole purpose of benefiting an abutting owner, and that the-power to vacate streets cannot be exercised in an arbitrary manner, without, regard to the interest and convenience of the public or individual rights; but that the municipality may vacate a street on the petition of an abutter for his benefit where the vacation is also for the benefit of the municipality at. large, i. e., where the use to which the vacated part of the street is to be put is of more benefit to the community than the retention of such land as a way for a street.”
Such evidence as was introduced showed that the street was unused; that some of the witnesses didn’t know there was a street there until they went there and hunted it out after this trouble arose. The plat attached to the abstract of record shows that at its west end the street becomes what is commonly termed a “blind” street. It stops there and does not intersect or connect with any other street at that end. The street adjoins the athletic field of the high school on the south side thereof. By the vacation of the street the high school is enabled to extend its field to the middle of the street. It can place a proper fence there and prevent automobiles from parking there, or the congregation of spectators from watching the games without paying an admission fee when one is charged. The general public in the community is vitally interested in the successful conduct and the welfare of the defendant high school. It is manifest that the vacation of the street is of benefit to the public.
The last point made by plaintiffs is that it deprives them of access to their lots. All of plaintiffs’ lots front on Elrose avenue. It is not closed. It connects at its south end with Marshall street. Marshall street opens into a public highway, a section line. Each of these streets is only one block long. So from lot 7, which would be the farthest point away from the highway, plaintiffs would have a distance of two blocks to the highway as against one block if the street were not vacated. The answer to this complaint of plaintiffs, however, is that made by the trial court, viz., that they have their remedy at law by way of an action for damages. (See Bolmar v. City of Topeka, 122 Kan. 272, 252 Pac. 229.)
We find no error in the record, and the trial court properly denied the injunction.
The judgment is affirmed.
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The opinion of the court was delivered by
Jochems, J.:
This was an action for injunction. Defendant prevailed, and the plaintiff appeals.
The plaintiff sought to enjoin defendant from selling, disposing of, or otherwise disclosing or making known to the public or third parties, plaintiff’s trade secrets, confidential information and a formula for the manufacture of penetrating oil, and from using the formula in the manufacture and sale of such oil.
Plaintiff alleged that it is a Kansas corporation and that its business is the manufacturing and marketing of penetrating oil; that the defendant, from the date of plaintiff’s incorporation, February 8, 1928, was a stockholder in and also president of the company, until July 7, 1928; that he was also a member of the board of directors and head salesman; that on July 7, 1928, he resigned and disposed of his stock, severing all relations with the company; that by reason of having been with the company he had learned the details of the business of the company, the names of its customers, prices of its product, the manner of manufacture and sale of. its product, and had been intrusted with knowledge of all the company’s affairs, including the formula used in the manufacture of the penetrating oil; that plaintiff is the owner of the formula; that the manufacture and sale of this oil under the formula furnishes its main source of income, and that the maintenance of its secrets in business affairs is essential to its success; that since the severing of his relations with the company the defendant has violated the trust and confidence imposed in him by the plaintiff by offering and selling the formula to other persons, several of whom are named in the petition; that defendant has become associated with and interested in another company engaged in business in plaintiff’s territory, and has disclosed the formula to it, and that this company is now engaged in manufacturing and selling penetrating oil in competition with the plaintiff; that by using its confidential information and secrets to create competition to plaintiff the defendant is caus ing irreparable injury and damage, and plaintiff therefore asked that defendant be enjoined.
The defendant in his answer denied that he had gained any knowledge whatsoever from the plaintiff; admitted his connection with the corporation; denied that plaintiff had any business secrets; that he ever used for himself or sold to others any information which he had obtained while in the employ of plaintiff; alleged that many years before he had discovered the formula, and that ,for more than five years prior to the inception of the plaintiff corporation he had manufactured and sold the oil in various states; that he had never given away or sold any exclusive right to manufacture the oil under the formula in question, but that on many occasions for money and friendship he had disclosed the formula to others, including the plaintiff; that in the beginning defendant informed the company how to make the penetrating oil, saying he would not sell the formula, but told the members of the company how to make it and that they could make it so long as they did not molest defendant in his personal rights. Defendant denied that he had sold plaintiff the exclusive right to the formula, and further claimed he had changed the formula from what it was when he was with the plaintiff by putting in other ingredients. Defendant also denied generally the allegations of plaintiff’s petition.
Upon these issues the case was tried. Considerable evidence was taken. At the conclfision of the evidence the following record was made:
“Counsel for Plaintiff: The plaintiff rests. I don’t know whether findings were requested.
“The Court: There isn’t very much question about the material evidence. I don’t think there is much call for findings.
“(Noon recess; argument of counsel.)
“The Couet: The evidence in this case discloses that the defendant, associated with some other person, originated this formula some five or more years ago; that he manufactured the article in Chicago to a considerable extent, at least to the extent of manufacturing several thousand gallons and marketing them. He then went to Lincoln, Nebraska, and disclosed the formula to a company there, for whom he worked, and which manufactured the article and is still engaged in the manufacture of it; that he later associated himself with another person at Lincoln, Nebraska, 'and manufactured the article; having disclosed the formula to the M'osbacher Motor Company of Wichita, the Gridley Motor Company of Wichita and the Kansas Gas and Electric Company, in Wichita, all of which disclosures were made before the plaintiff corporation was organized and under circumstances which place no duty upon any of the parties to keep the formula a secret and under circumstances which the court finds caused the formula to cease to be a secret formula. That at the time the formula was disclosed to the plaintiff in this action, the defendant had no right to be protected in the formula, and that the plaintiff had no greater right to protection than the defendant had. The plaintiff cannot claim to have been misled in the matter of the secrecy of the formula for the reason that the defendant was president of the company and having had the knowledge himself, it was the knowledge of the company that the formula had been disclosed to numerous parties under circumstances not requiring secrecy, and under that state of facts, I find that the injunction should not be granted.
“Counsel for Plaintiff: Will your honor make a finding upon whether or not there was an express or implied contract of a transfer to the corporation?
“The Court: Under the findings made, I think there could be no implied contract; the defendant himself having no right to the formula as a secret formula, there would be no implied contract that anyone else could have, and I find there was no express contract.
“Counsel for Plaintiff: I don’t want to interrogate the court, but-what I am trying to get at, Does your honor place his decision upon the grounds that this was not such a matter as could be contracted with or whether there was or not a contract?
“The Court: I find that there would be no implied contract not to use it, under the facts as I find them, and I find there was no express contract on the part of the defendant not to engage in a similar business or not to manufacture and sell a penetrating oil manufactured under this formula.
“Counsel for Plaintiff: It still doesn’t get at my point; that is, whether or not, at the time he got the stock in the Southwest Specialties Company, he agreed to transfer to the Southwest Specialties Company this formula and whatever rights he had, if he had any.
“The Court: Well, I think the evidence doesn’t show farther than that he permitted the Southwest Specialties Company to use the formula; in other words, that he disclosed the formula to the company.
“Counsel foe Plaintiff: Which is equivalent to a finding your honor believes Eastman’s testimony and not the other?
“The Court: Not necessarily.
“Counsel for Plaintiff: If your honor finds there was no contract at all to turn over to the Southwest Specialties Company, then we are done.
“The Court : If I knew what you meant by 'turning over’—
“Counsel for Plaintiff: By that I mean simply this: That it was his agreement that they were to have whatever rights he had in the formula, in payment of the stock that was issued to him.
“The Court: I will make that finding that, under the arrangement with the Southwest Specialties Company, they were to have whatever rights he had, which I think was nothing.
“Counsel for Defendant: Would you make the additional finding that in forming the'Southwest Specialties Company he, along with the other incorporators, put in an equal amount of capital?
“The Court: No. I would have to find, according to the evidence, that there was $3,500 raised in some manner and that each of the three assumed responsibility for one-third of it.
“Counsel for Defendant: Has your honor made the finding that he did, at the time the Southwest Specialties Company was formed, turn into that company all of the right he had? At the time the Southwest Specialties Company was formed?
“The Court: The rights to manufacture under his formula.
“Counsel for Plaintiff: What other rights?
“The Court: That would be all the rights there would be.
“Counsel for Plaintiff : Does the court find Mr. Eastman had some additional rights?
“The Court: No. I find he didn’t have any rights. I think when I find that he didn’t have any secret formula, that he didn’t have any rights.
“Counsel for Defendant: You say that you find Eastman turned over all of the rights to the Southwest Specialties Company at the time it was formed —all of his rights for making or manufacturing this oil. Do you mean by that his knowledge of making the oil, or did he turn over to them the knowledge of making of it?
“The Court: I find he turned over t'o them, so far as he could,.the right to manufacture the oil according to the formula.
“Counsel for Plaintiff: Is the court’s decision based upon the question of the right of secrecy to the formula?
“The Court: Yes.”
Upon the foregoing findings of fact the court rendered judgment for the defendant. In doing so the trial court decided:
“(1) That the formula turned over to the plaintiff by the defendant was not & secret formula at that time ¡ that it had been known to others for several years prior thereto and had been disclosed to numerous other parties prior to the incorporation of plaintiff.
“(2) That the defendant did not bind himself by any express contract not to engage in business in competition with the plaintiff and not to disclose the formula to others, and did not make any express contract granting the exclusive right to plaintiff to manufacture the penetrating oil according to the formula.”
The appellant cites Morrison v. Woodbury, 105 Kan. 617, 185 Pac. 735. In that case the employee who had been in a position of-trust and confidence thereby obtained his employer’s books and from them copied a list of the expirations of fire insurance policies. The employer’s business was that of writing insurance and his own-ership of trade secrets and confidential information was clear and the employee was held guilty of gross wrong in attempting to so .appropriate the list of policyholders — the property of his employer. Appellant also cites the case of Vulcan Detinning Co. v. American Can Co., (N. J.) 12 L. R. A., n. s., 102. In that case it is pointed out that the defendant company obtained its formula from a person who had been intrusted with it by the plaintiff for the express purpose of guarding it for the mutual benefit of himself and his associates. The injunction was allowed because this trustee of the complainant had violated his position of trust and confidence by disclosing the secret process of plaintiff’s formula to the defendant. The party who made the disclosure was not the originator of the process, but was intrusted with the secret formula by his company. The injunction was based upon general equitable principles and was allowed because the court held it would be inequitable to permit defendant to profit as a result of information which had been disclosed by one who, being in a position of trust and confidence, had thereby violated such trust. In the case at bar the information used by the defendant and by him disclosed to others did not come to him as a result of being placed in a position of trust. It was not information gained from the plaintiff. It was information he had regardless of any association with plaintiff.
In Garst v. Scott, 114 Kan. 676, 220 Pac. 277, it was held:
“An employee who solicits business and delivers work for a laundry may, upon ceasing his employment, engage in a laundry business for himself, or become the employee of another laundryman, in competition with his former employers, and solicit business from their customers from whom he had received laundry work, where he leaves with the employers all lists of the customers, and where there is no contract prohibiting him from soliciting the patronage of such customers.” (Syl.)
In the opinion, at page 679, the court said:
“A person who leaves the employment of another has the right to take with him all the skill he has acquired, all the knowledge that he has obtained, and all the information that he has received, so long as nothing is taken that is the property of the employer. Trade secrets are the property of the employer and cannot be taken or used by the employee for his own benefit, but customers are not trade secrets. They are not property. The right to trade with them may be property, but that right' was not interfered with by the defendant. Written lists of customers may be property, but the defendant did not take any such list. Skill and knowledge acquired or information obtained cannot be left behind so long as those things exist within the mind of the employee. All that knowledge, skill and information, except trade secrets, become a part of his equipment for the transaction of any business in which he may engage, just the same as any part of the skill, knowledge, information or education that was received by him before entering upon the employment. Those things cannot be taken from him, although he may forego them, forget them, or abandon them.”
There was some evidence on the part of the plaintiff, also, that .the defendant made false representations to the effect that the formula was secret at the time the company was formed, and that it was to be the exclusive property of the company; and further, that other stockholders of the corporation invested their money, relying upon such representations. However, the trial court did not make any finding to that effect. If it had, then the case of Germo Mfg. Co. v. Combs, 209 Mo. App. 651, would be a case in point. In that case it was held:
“Where partners, the owners of a formula for the manufacture of a poultry compound, upon organizing a corporation to take over the business of the partnership, put the formula into the corporation as a valuable trade secret for the greater part of its capital stock, treated it and guarded it as such, built up a business thereon and put the fact that it was a secret into the corporate records whereby they were enabled to dispose of their stock at a large price, the corporation and the subsequent stockholders were not charged with the duty or obligation of knowing that it was not a trade secret.” (Syl. ¶ 3.)
In that case the formula had been used many years before and therefore, at the time the corporation acquired it, it was not a secret formula. In that respect the case last cited is similar to the one at bar, but in the case at bar the court did not make any finding from which it can be determined that at the time the formula was turned over to the corporation any representation was made, or any record was made, to the effect that it was a secret formula or that the corporation was to have the exclusive right to manufacture and sell the product under that formula. In the case at bar it must be noted that the defendant was the originator of the formula; that for several years prior to the time the plaintiff corporation came into existence the formula had been known to numerous other persons, some in Chicago, some in Lincoln, Neb., and others in Wichita, Kan. It is clear, therefore, that at the time the defendant dealt with the plaintiff the formula was no longer a secret one. It is equally apparent that the knowledge which defendant had of the formula was not gained by him through any position of confidence or trust while associated with the plaintiff. He had complete knowledge of the formula before becoming associated with the plaintiff company. He did not obtain this knowledge in any way from the plaintiff. He did not sell the exclusive right to the plaintiff to manufacture the product according to the formula. Neither did he expressly contract that he would not go into business in competition with the plaintiff. Where the formula had been previously disclosed and was known to others, it necessarily follows that there could be no implied contract, under the facts as found by the court, that the de-. fendant would not subsequently use the formula or engage in a business using the same. There being no implied contract not to use the formula, under the facts as found by the court, and no express contract on the part of defendant not to disclose the formula to others, or to engage in similar business', or not to manufacture and sell a similar product manufactured under the formula, it was proper for the court to refuse the injunction.
Under the findings of the lower court the judgment was correct.
It is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
Plaintiff recovered judgment for damages caused by injury sustained by her while a passenger on a street car operated by the defendant, which appeals.
The plaintiff was a passenger on a northbound street car on Thirteenth street south of Stewart avenue in Kansas City. The street car collided with a truck loaded with coal going south. Just before the collision the plaintiff had risen from her seat preparatory to getting off the street car at Stewart avenue, the next stop. The collision with the truck threw her to the floor and injured her. The evidence tended to prove that the motorman on the street car saw the truck before the collision; that the driver of the truck saw the street car before the collision; that the truck was being driven south on Thirteenth street; that part of the steering gear on the truck broke and the truck became unmanageable, and that the truck then veered to the east and ran into the street car.
Special questions were submitted to the jury and were answered as follows:
“2. What part of the North Coal Company truck collided with the northbound street car? A. Front left corner of truck.
“3. What part of the street car did the truck collide with? A. Front left.
“4. If you find for the plaintiff, of what did the negligence of the defendant consist? A. He did not properly observe the traffic and tracks ahead of him and did not apply the brakes as soon as he should have.
“6. Did the motorman have any warning that the truck was uncontrollable? A. No.
“8. How fast was the truck going at the time of the collision? A. Ten to fifteen miles per hour.
“9. How fast was the street car moving at the time of the collision? A. Seven to eight miles per hour.
“10. How far, in feet, did the truck run from the point on the west side of Thirteenth street where the steering device broke to the point where the truck struck the street car? A. Approximately 100 feet.
“11. Was the North Coal Company truck at any time prior to the collision on the northbound street-car tracks? A. Yes.
“12. How much time elapsed from the breaking of the steering device until the southbound truck ran across the southbound car rails into the street car? A. Two or three seconds.
“13. What did the driver of the truck do to stop the truck before the ■collision? A.' Nothing.
“1. Did the driver of the truck lose control thereof at some point just south of Thirteenth and Stewart? A. Yes.
“2. If you answer question 1 in the affirmative, then state whether from the time the truck driver lost control of his truck he was doing anything which should have attracted the attention of the motorman of the street car. A. No.
“4. If the motorman in charge of the street car had been looking northward, and along the tracks, could he have observed the truck approaching in a place, or in such a manner that its continued approach constituted a danger of a collision, and have stopped his street car and thus avoided a collision? A. Yes.”
The defendant argues that “the court erred in overruling the defendant’s demurrer to the evidence at the close of plaintiff’s case,” and that “the court erred in refusing to give to the jury the peremptory instruction requested by the defendant” to return a verdict in favor of the defendant. The question thus raised is presented in other forms. The jury found, and there was evidence which tended to prove, that although only two or three seconds of time elapsed between the breaking of the steering device and the collision, the street car could have been stopped in ten or twelve feet and that the street car could have been stopped in time to have avoided the collision. This evidence, together with inference that could properly be drawn from the facts concerning which there was no dispute, compelled the submission of the case to the jury for determination-. It was not error to overrule the defendant’s ^demurrer to the plaintiff’s evidence, nor to refuse to give an instruction directing a verdict in favor of the defendant.
Another proposition urged by the defendant is that “the court erred in overruling the defendant’s motion for a judgment upon the special findings of the jury non obstante veredicto.” A careful examination of the special questions and the answers thereto reveals but one that might be considered favorable to the defendant. That is the twelfth, as follows:
“12. How much time elapsed from the breaking of the steering device until the southbound truck ran across the southbound car rails into the street car? A. Two or three seconds.”
This question and answer should be read in connection with the eleventh, as follows:
“11. Was the North Coal Company truck at any time prior to the collision on the northbound street-car tracks? A. Yes.”
The answer to the eleventh question established that the truck was on the northbound street-car track before the collision. The answers to the two questions numbered four established that the street car could have been stopped in time to have avoided the collision. It must be admitted that two or three seconds is a short time in which to stop a moving street car, but the street car was moving slowly and could have been stopped, according to the evidence, almost instantly. The answers to the special questions would not. have justified a verdict in favor of the defendant.
It is argued by the defendant that “the court erred in permitting the introduction of incompetent, irrelevant, immaterial and prejudicial evidence over the objections of the defendant, which affected the substantial rights of this defendant and gave the adverse party an undue advantage.” The evidence complained of was-that which tended to show that the plaintiff had been a married woman, that she had a family, that she performed her household duties, and that she had given birth to five children, four of whom were then living. The injury which the plaintiff claimed she sustained by reason of the accident was a dislocated kidney. One of the matters urged by the defendant which it sought to establish by evidence was that the plaintiff, on account of the shape of her body, its size, and the location of-her internal organs, was predisposed to a moving kidney, which would be somewhat easily dislocated, which condition the defendant sought to prove would be aggravated by the birth of five children. But for the evidence of the defendant in endeavoring to show that the birth of the children had been a cause of the condition of the plaintiff’s kidney, a serious question might be presented by the admission of the evidence complained of, but with the admission of the evidence on behalf of the defendant, the error, if there was one, was waived and abandoned by the defendant.
Misconduct of counsel is urged as error sufficiently prejudicial to justify a reversal of the judgment. This misconduct consisted of remarks made during the examination of witnesses and in argument to the jury. From the abstract we conclude that the trial was a hotly contested one. The record discloses that counsel were not considerate of each other. The court, after an examination of those remarks as disclosed by the record furnished to this court, is of the opinion that they were not so bad as to justify reversing the judgment.
Defendant argues that plaintiff was erroneously permitted to ask leading and suggestive questions. This matter has been examined, and the court is of the opinion that it is not of sufficient merit to warrant extended discussion. While questions that were somewhat improper may have been asked, the record does not disclose that any prejudice to the defendant resulted from the manner of asking questions. ■
Matters that are herein disposed of are by the defendant presented in other forms. It is not deemed necessary to discuss them further.
No prejudicial error has been shown; the judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is a foreclosure action, and the appeal is from a personal judgment rendered against a purchaser of the property after the mortgage had been given, as having assumed and agreed to pay the same. The judgment was also rendered against the makers of the note and mortgage, but no appeal has been taken by them.
The answer of the appellant set up two written agreements for the exchange of property, the latter being the same as the earlier except to correct two mistakes in figures in the earlier one, and plead the agreement as shown in the contracts to take the property subject to the mortgage; that one of the deeds contained a clause to assume and pay the mortgage and was placed on record by the agent without his having seen it and without his knowledge or consent as to such clause, and the other deed had no such clause in it when delivered to him; that there was no delivery to him or acceptance by him of deeds containing such assumption clause.
The written contract was between appellant and one A. W. Logan, to exchange appellant’s business property in town to Logan for several tracts of land standing on record in the name of Logan and several other parties whose names were not mentioned in the contract. The agreement stated that the town property was subject to a mortgage of $3,500, and the farm property subject to a mortgage of $16,000. This contract was made February 24, 1926. No prices were placed in the contract on either property, but one was to be exchanged for the other, only $3,500 in cash was to go with the business building to Logan for the land. The contract provided that the deeds be held in escrow until each party fulfills his part of the contract, and contained the following sentence:
“It is further agreed between the parties to these presents that possession of said premises be transferred when this article is signed.”
The agent that effected the exchange was a brother of Logan, but the court found he was not the agent of Logan or of any of the other parties owning the land with him, but was the agent of the appellant Neihart. The deeds were prepared by the agent, one Thayer and Neihart, and were taken by the agent to Logan and his people. They were made, like the contract, subject to the mortgage. One of the owners of the Logan farm changed the deeds conveying the farm land to the appellant by adding the following words after the statement of the land being subject to the $16,000 mortgage: “which is hereby assumed by party of second part.” After this amendment these deeds were executed and ac knowlédged, conveying the land in this manner to Neihart, the appellant. Instead of putting the deeds in escrow, the agent brought one of these deeds to Neihart, the one signed by Logan and another party, with the suggestion that because of threatened litigation against the other party signing this deed, it would be well to place it on record at once, Neihart did not examine it, but answered, if it was drawn according to contract, he didn’t see any harm in having it recorded. This conversation was in the field on the 15th of March. The deed was dated March 9, acknowledged by Logan March 12, by other party March 15, and recorded on same day by the agent shortly after his conversation with Neihart in the field. The other deed covering land included in this mortgage, known as the Eggert deed, was dated March 9, acknowledged March 12, and recorded June 28. It was left in escrow at the bank by the agent some time prior to June 21, and was not seen by any of the parties except the agent after its execution, until Neihart saw it in the bank June 21, when a new contract was made and signed at the request of Logan, substantially the same as the former, except changing the amount of encumbrance on the business property to $3,700, instead of $3,500, and increasing the cash from $3,500 tb $3,700, no change being made as to the exchange of properties being subject to the mortgages on each side.
On March 29 Neihart examined the record in the register of deeds’ office and found the Logan deed to him that was recorded March 15 contained the words “which is hereby assumed by party of second part,” and called the agent and complained about it. The agent said that clause should not have been in the deed, and started to strike it out. Neihart asked if he had authority to strike it out. He replied that he had, and struck it out; then the register of deeds struck it out of the record as well. When Neihart first saw the Eggert deed at the bank on June 21 this clause had been stricken out.
There was evidence tending to show that the agent represented Neihart, that he represented his brother, A. W. Logan, and his associates and that he represented both parties at the same time, but, as stated above, the court found that he was the agent of Neihart and not the agent of any of the other parties involved. That finding is binding upon this court as well as all other findings of fact made by the trial court if there was, as there is in this question of agency, sufficient evidence to support such finding.
The following findings of fact made by the trial court are especially involved in this controversy:
“5. March 12, 1926, defendants, V. A. Young and Edna F. Young, executed their deed to the defendant, C. T. Neihart, for part of said land and thereafter on the 15th day of March, 1926, defendants, A. W. Logan and A. Maude Logan, executed the same deed to the said C. T. Neihart, and that by the terms and conditions of said deed at the time of its execution and delivery, the grantee therein assumed and agreed to pay the mortgage of this plaintiff. That thereafter, and on the 29th day of March, 1926, the defendant, C. T. Neihart, by and through his agent, Carl Logan,- struck from said deed the words, ‘which is hereby assumed by party of the second part’; and that the said change or alteration in said deed was made without the consent or knowledge of any of the grantors and after the same had been delivered and recorded.
"6. That Carl Logan was acting as the agent of and for the defendant, C. T. Neihart, in securing the execution of the deed and was not the agent of the defendants, V. A. Young and wife and A. W. Logan and wife, in connection with the exchange of the real estate.
“7. On March 12, 1926, defendants, Robert Eggert and Florence J. Eggert, his wife, executed a deed covering part of the above-described lands to the defendant, C. T. Neihart; that by the terms and conditions of the deed C. T. Neihart assumed and agreed to pay the mortgage indebtedness due the plaintiff. That when the said Robert Eggert parted with the deed for the purpose of delivery to C. T. Neihart, the deed contained the assumption clause, but that thereafter and at some time undisclosed by the evidence, the words, ‘which is hereby assumed by party of the second part,’ were stricken from the said deed, and that the said Robert Eggert did not authorize or consent to the changing of said deed. That when the said deed was presented to the defendant, C. T. Neihart, at the bank to be placed in escrow the said Neihart made no inquiry as to when or by whom said assumption clause was stricken from the deed, and that neither the said Robert Eggert, A. W. Logan or V. A. Young have ratified, consented or agreed to the changing of the said deeds in the manner hereinbefore set forth, and that said changes constitute material alterations therein.
“8. That C. T. Neihart has been in possession of said lands, collecting the rents and profits therefrom during the years 1926, 1927 and 1928.
“9. That defendant, C. T. Neihart, after knowing said deed was on record and of the changes that had been made by erasing and striking therefrom the words, ‘which is hereby assumed by party of the second part,’ did not notify either V. A. Young, A. W. Logan or Robert Eggert of the change that had been made in the deed.”
The trial court concluded that the agent was the agent of Neihart for the exchange of the properties and for the recording of the deed; that the striking out of the assumption clause was a material alteration and did not bind the plaintiff mortgagee; that Neihart had waived his right to object to the clause in the deeds and was estopped to deny his liability thereunder; that by the terms of the deeds Neihart had assumed and agreed to pay the note and mortgage and that these deeds were the final contracts between the parties.
The following clause in finding No. 5 and substantially the same in finding No. 7 is more nearly and strictly speaking a conclusion of law than a finding of fact, and will be so considered:
“. . . that by the terms and conditions of said deed at the time of its execution and delivery, the grantee therein assumed and agreed to pay the mortgage of this plaintiff.”
The appellant presents and ably argues some other points in addition to agency, which we will not be able to consider, because they are covered by the findings of fact.
The real questions here for consideration are: Do the findings and the evidence show that appellant assumed and agreed to pay the mortgage, and if he did, has he waived his right to object to such assumption?
It is not contended that he consented to the delivery and recording of the first deed, knowing that it contained the assumption clause, but that he made the agent his agenUto decide, from an examination of the deed, if it conformed to the contract, and is bound thereby; that the deed was the final contract and superseded the earlier one, and that he entered into possession of the property by virtue of the deed, thus ratifying its terms. The last two propositions are usually applicable and sound, but by very unusual circumstances are not so here. The deed generally follows the contract, and the changes in it are therefore naturally and properly presumed to be intended by the parties as changes desired by both parties, but in this case, more than three months after the execution of the deeds and while one of them was still in escrow, Logan presented to appellant a contract to be signed correcting the mistakes that had been made in the former contract. It contained no mention of assuming the mortgage, but adhered to the original plan of taking the land subject to the mortgage, so there can under these circumstances be no presumption that the deeds contained the final agreement of the parties on this point.
Authorities are cited showing the conclusive force of accepting the adverse terms of a deed when the grantee enters into possession of the property by virtue thereof. The contract in this case provided for immediate possession upon the execution thereof, which was nearly three weeks before the execution of the deeds. It cannot be said that the possession of the appellant was by virtue of the deeds. He was entitled to possession three weeks before the making of the deeds. If the appellant, by telling the agent that the deed might be recorded if it conformed to the contract, adopted and accepted the judgment of the agent as his own judgment and the agent overlooked the assumption clause, it would be the same in effect as if the appellant had examined the deed himself and overlooked that provision. The evidence shows it was regarded by the agent as an oversight on. his part when two weeks later he said: “Why, that ought not be in that.” So we may eliminate the question of agency, and consider the acts of the agent as the acts of the appellant, and consider the case as if he had failed to examine the deed before recording it or in examining it had overlooked the assumption clause, and in the same connection the fact that at the first opportunity thereafter made complaint and protest about it.
“Where the acceptance of a deed containing the assumption clause is in issue, the fact that it did not appear that such deed was ever delivered to the grantee or that he knew its contents, or, if delivery is shown, that the grantee, as soon as he discovered the clause, refused to accept the deed, is sufficient to defeat an action brought on the covenant. . . .
“It is essential that the deed in its recitals as to the mortgage should be definite and clear; that, in addition to the recitals, there should be some evidence that the grantee, or his duly authorized agent, knew or had some reason to suppose that the deed contained them and that he had assented thereto, such assent being presumed where delivery of the deed to the grantee and acceptance by him are shown, unless the grantee is acting as a mere conduit for the passing of title to some one else. Where the grantee’s assent to the assumption clause is in issue, the mere recital in the deed that the grantee assumes and agrees to pay the mortgage debt, or the mere acceptance and recording of the deed by the purchaser, has been held not sufficient evidence of such assent. Whether the grantee knew of the assumption clause in the deed at the time it was executed or not is immaterial if it is shown that he knew of it afterward and ratified it beyond all question. A presumption of the grantee’s assent to the assumption clause does not arise from the mere recording of the deed, although such constructive-notice would place upon him the duty of inquiry . . .” (41 C. J. 726.)
“Generally speaking, a mortgagee has no greater right than has the mortgagor against the purchaser of the mortgaged premises who agrees to pay the mortgage. So the assumption by the grantee, of a mortgage on the land conveyed to him, although incorporated in the deed of conveyance, does not render him absolutely liable thereon to the mortgagee where by a collateral agreement his liability is limited or abridged. . . . The circumstance that there was no agreement for assumption between the grantor and grantee, and the agreement was inserted in an unusual place in the deed and escaped the notice of the latter, has been ruled to exonerate him from personal liability. So where the grantee, though he contracted only to take his conveyance subject to a mortgage, accepts without inspection a deed in which he is made to assume the mortgage, and does not discover this until judgment for deficiency has been entered against him in a foreclosure suit, he may have the judgment opened and may show by the contract that he was not liable for the deficiency.” (19 R. C. L. 378.)
The main issue in the case was whether or not appellant assumed the mortgage or assented to. the assumption clause being in the conveyance to him. Assume means “to take upon one’s self (to do or perform); to undertake.” (Webster’s Internat’l Dict.) One cannot undertake or assume something of which he has no knowledge or information, of course, aside from the rules of constructive or implied knowledge. It is not contended that appellant had actual knowledge of the assumption clause being in the deed prior to his observing it in the office of the register of deeds, two weeks after the deed had been recorded.
“To create a personal liability on the part of a grantee in a deed to pay a prior mortgage or lien on the premises conveyed, the covenant or words used therein must clearly import that the obligation was intended by the grantor, and knowingly .assumed by the grantee.” (Holcomb v. Thompson, 50 Kan. 598, syl., 32 Pac. 1091. See, also, Hendricks v. Brooks, 80 Kan. 1, 101 Pac. 622; Shattuck v. Rogers, 54 Kan. 266, 38 Pac. 280.)
It is urged that where the amount of the mortgage indebtedness is deducted from the purchase price that there is an implied assumption, citing Woodburn v. Harvey, 107 Kan. 57, 190 Pac. 620; Foetisch v. White, 124 Kan. 136, 257 Pac. 941, and decisions from other states. Both Kansas cases were where the indebtedness was incurred at the instance and suggestion of the purchaser in order to facilitate the deal and, of course, the indebtedness thus incurred at his suggestion was a part of the purchase price and properly deducted therefrom, which would justly support the implication of assumption. There is no semblance of such facts in this case, and in fact the contract names no value for either property, but simply an exchange of property. There was no finding along this line, nor sufficient evidence to justify any such finding.
We conclude that the appellant did not knowingly or impliedly assume to pay the mortgage indebtedness by his words or acts or those of his agent.
But appellee insists that even if appellant was not in the first instance liable on such assumption, he has waived his right to object thereto by his acquiescence in the form of deeds furnished, and by his entering into and continuing in possession of the property conveyed, and collecting the rents and profits therefrom. We have heretofore mentioned the fact that the right to enter into possession was given by the contract made some weeks before the deeds. The fact that one continues in possession after rightly acquiring the same under an agreement, which is not questioned, does not raise any presumption against him or his right to so continue, even if subsequent events may raise a question as to his right to so continue. The findings show that appellant did not acquiesce in the form of deed furnished and recorded. On the contrary, he showed his dissatisfaction with the form to the extent of demanding that it be changed, and it was changed. There can be no ápproval of the act of the agent in striking out the objectionable clause, nor of the appellant consenting to his doing so, especially under the finding that he was the agent of the appellant, but however wrong and improper the striking out of the clause may have been, it conclusively shows just the opposite of acquiescence, and does not constitute a waiver of appellant’s right to object to the clause inserted in the deed without his consent. A waiver is an intentional renunciation of a claim or right and exists only where there has been some absolute action or inaction inconsistent with that claim or right.
“A waiver of a contract right implies a voluntary and intentional renunciation of it, and some positive act or positive inaction inconsistent with the contract right is necessary to create a waiver.” (Street Lighting Co. v. City of Wichita, 101 Kan. 452, syl. ¶ 1, 168 Pac. 1090. See, also, Long v. Clark, 90 Kan. 535, 135 Pac. 673; Harpham Brothers Co. v. Perry, 118 Kan. 457, 235 Pac. 1039; 27 R. C. L. 908.)
Attention is directed to the failure of appellant to inform Logan and his associates of the striking out of the clause. This does not make his conduct inconsistent. He should have informed Logan, the same as Logan should have informed him that they were inserting the assumption clause contrary to the terms of the written agreement. They are both at fault in the matter of informing each other in these' particulars. However questionable the process of striking out this clause, may appellant under this criticism of method pursued be entitled to some amelioration of censure because of having entertained the thought, which was erroneous undér the findings, that the agent striking out the clause was, in doing so, acting for Logan and his associates?
Appellee contends in support of the judgment that the alteration in the deed was a material one and is not binding upon the appellee, and appellee is entitled to have the clause that was stricken out restored and enforced, which would be a reformation of the deed to restore it to what it was or ought to have been. Of course, the alteration was a material one and improperly made, but we have already held that under the findings and record the assumption clause was not binding' upon the appellant and he had not waived his right to object to such clause being in the deed, which makes a case entitling appellant under his pleadings to a reformation of the deed, just the same in kind but opposite in effect to restoring and enforcing the assumption clause. Both are in the nature of reformation. The fact that appellant did not insist upon that part of his prayer does not change or increase his liability.
In the case of Hurt v. Stout, 105 Kan. 54, 181 Pac. 623, the court held that a material alteration made in a deed by the procurement of the plaintiff would prevent his recovery. But will a material alteration by procurement or otherwise create a liability when none otherwise exists? We think not.
The situation, as the findings show, is slightly different with reference to the Eggert deed. It is not disclosed when or by whom the assumption clause was stricken out, but it was done without the knowledge or consent of the grantor. It was stricken out when the appellant first saw it. If the striking out in this deed was like that in the other, improperly done, the appellant would not be liable for the mortgage debt, because he had not assumed the debt nor waived his right to object to such clause, and a court of equity should not enforce a provision contrary to the written agreement and intention of the contracting parties.
“A court of equity has power to correct a mistake in a written instrument so as to make it express the intention and agreement of the parties, and when the fact of a mistake appears and the rights of no third party intervene, it is the duty of the court to make the correction; and this duty is coextensive with the mistake, and extends, not merely to the reformation of the original instrument, but also to all subsequent proceedings, papers, judgments, and decrees into which the mistake, as a mistake, is carried.” (National Bank v. Wentworth, 28 Kan. 183, syl. ¶ 1.)
"Where the grantee oí a deed enters into an agreement with the grantor that he will assume and pay all of the mortgages and encumbrances on the land conveyed at the time of the execution of the deed, but by the mutual mistake of the parties the deed in its written form does not express this contract, equity has jurisdiction to reform the written instrument so as to conform to the intention, agreement and understanding of the parties.” (Stepthenson v. Elliott, 53 Kan. 550, syl. ¶ 1, 36 Pac. 980. See, also, Butler v. Milner, 95 Kan. 463, 148 Pac. 605; Zuspann v. Roy, 102 Kan. 188, 170 Pac. 387, 6 R. C. L. 626.)
The judgment is reversed and cause remanded with instructions to set aside the personal judgment rendered against appellant C. T. Neihart, and the judgment otherwise is not disturbed.
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The opinion of the court was delivered by
Johnston, C. J.:
The question for decision in this case is whether a party named as legatee in an uncontested will is entitled to a share of the estate of the testatrix. On December 3, 1916, Sarah G. White executed a will, which contained, among other things, a bequest to the Salvation Army of $500 for the express purpose of assisting in the erection of a building within a stated time, to be used by the Salvation Army for religious services and other purposes. The following is a copy of the fourth paragraph of the will, the provision pertaining to the matter in controversy:
“Fourth: Subject to the provision contained in this item, I give, will, devise and bequeath to the Salvation Army at Topeka, Kan., the sum of five hundred dollars for the express purpose of assisting such body in erecting a building for religious services and other purposes of such association, at Topeka, Kan.: Provided, That this bequest is upon the express condition that actual building operations be commenced upon such building within two years after my decease, and in ease such building operations are not begun within two years after my demise, then this bequest shall fail and the sum bequeathed in this item become and be a part of my residuary estate.”
Mrs. White died on August 29, 1923. It appears that after December 3, 1916, the Salvation Army'erected a building in Topeka for religious services and other purposes at a cost of $55,087.77, and a mortgage of $14,500 was placed upon it when the building was erected. It was dedicated on February 20, 1920. The building erected has been and is used for religious purposes and the Salvation Army has not erected or begun the erection of any other building in Topeka since the date of Mrs. White’s death. The will was duly admitted to probate and the executrix, Martha J. Watts, proceeded with the administration of the estate. In due time she served notice of her intention to close the estate and asked the probate court for an order determining who were the devisees under the will. At that time the Salvation Army claimed to be entitled to the $500 mentioned in the will, but after consideration this claim was denied, the probate court holding that the amount named in the fourth paragraph of the will should go to the residuary estate. An appeal from that order was taken to the district court and on February 2, 1929, when the matter was heard, the court adjudged that under the terms of the will the Salvation Army was not entitled to the $500 mentioned in the will because the bequest had lapsed. A copy of this judgment was sent to the probate court on May 31, 1929. No order staying the judgment rendered was obtained, and no notice of appeal having been served, the executrix after due notice made final settlement of the estate on June 6, 1929. At that time the probate court made an order of distribution which was carried out, and the court then finding that the estate was fully and finally closed, and all orders of the court complied with, entered an order discharging the executrix and her sureties and releasing them from any liability on the bond that had been given. Afterwards, and on July 17, 1929, the Salvation Army served notice of appeal and it is here contending that the judgment of the district court should be reversed.
It will be observed that the testatrix did not make an unconditional bequest. It was given subject to and upon an express condition. In disposing of her property she had a right to impose any condition she pleased, provided it was not contrary to law or public policy. The condition she imposes might appear to others to be finical or unimportant, but it is her own will, and if the condition is clearly expressed and indicates her purpose, it cannot be ignored or treated as unimportant. She made it clear that if the condition imposed was not carried out the conditional gift should go into the residuary estate. Her intention as manifested by the language of the will is, of course, the controlling consideration in construing the instrument. What did she mean when she provided that a building should be commenced “within two years after my death,” and when she added that if the building operations were not begun “vyithin two years after my death” the bequest shall fail? The language is simple and plain and where language of a will is free from ambiguity construction is not necessary or warranted. Does the fact that the Salvation Army erected a building years before the death of Mrs. White fulfill the condition that a building shall be started within two years after her death?
It is contended that the restriction mentioned should be liberally interpreted and the expression “within two years after my death” considered as meaning not later than two years after my death, and not beyond that period. This interpretation would practically eliminate the word “within." That term is defined as:
"(1) In the inner or interior part of; inside of; not without. (2) In the limits or compass of; not longer in time than, as within an hour. (3) Hence inside the limits, reach or influence of; not going outside of.” (Webster’s Internat’l Dict.)
The same lexicographer defines “after” in the connection in which it was used as “later in time; subsequent to.” The word “after” fixes the time when performance may be begun and the right to perform a condition within a certain time thereafter, fixes the time in which it shall be done. In Conroy v. Perry, 26 Kan. 472, the meaning of similar terms used in a mechanic’s lien statute was considered. The statute required the statement for a lien should be filed within four months after the completion of the building. A statement was filed about four months before the building was completed and it was argued that the purpose of the provision was to fix the termination and not the commencement of time. The court held that the act of filing to be effective must be done within the prescribed time and could not be done before that time. It was said:
“While the lien law, like other provisions of the code, is to be construed liberally and in the interests of justice, so that if there be a doubt as to the day of the completion of the building, the doubt is to be resolved in favor of the lien claimant, yet such liberal construction does not permit that the terms of the statute itself be disregarded; and when the petition affirmatively discloses that the lien statement was filed nearly five months before the completion of the building, it does not disclose a valid lien.” (p. 475.)
In regard to the performance of a prescribed condition of a will within a fixed time, it has been said:
“When a condition precedent or a condition subsequent is provided for in a will, and a time is given in which the devisee is to comply therewith, ordinarily it must be performed within that time.” (Crowley v. Nixon, 127 Kan. 178, 180, 272 Pac. 104.)
In 40 Cyc. 1723 it is said:
“Where a will specifies the time for the performance of a condition precedent or subsequent, it must as a rule be performed at or within that time.”
In 1 Underhill on Wills, p. 644, the author said:
“A condition precedent to the vesting of an estate must be strictly and wholly complied with in every particular before the estate shall vest.”
It is urged that the principal concern of Mrs. White, so far as this item of the will was concerned, was that the Salvation Army should procure a building for religious and other services in Topeka, and that it could have been a matter of little interest to her as to when building operations should begin. She was at liberty to make an absolute gift for that purpose, but for reasons sufficient to herself she chose rather to make the gift on definite conditions ex pressed in words of common use which are not of doubtful character. The purpose of the gift was laudable, and evidently the testatrix was generously disposed towards the donee, but she concluded to make a donation subject to conditions. It must be assumed that she understood the conditions imposed and it will be conceded that she had the right to dispose of her property according to her own desires and judgment, and not in a way that others might regard to be more reasonable and wise. If we should construe away the terms “within” and “after,” how far might the court go in changing the terms of a will? A number of instruments are open to reformation, but a will is one instrument which a court has no power to reform. (Dye v. Parker, 108 Kan. 304, 194 Pac. 640, 195 Pac. 599.)
While the whole instrument may be considered in search of the intention of- the testatrix, it is also the rule that it is the duty of the court to consider and give effect to every part of the will which includes the conditions in question. It is an admitted fact that no building operations were commenced after the death of the testatrix, and it is held that—
“While a will operates from date of the testator’s death, the testator’s intention is that expressed by the will.” (Warlick v. Boone, 120 Kan. 148, 149, 242 Pac. 135. See, also, Purl v. Purl, 108 Kan. 673, 197 Pac. 185.)
When there is noncompliance with a prescribed condition in the will the bequest cannot vest. (Merrill v. Wisconsin Female College, 74 Wis. 415.)
The judgment of the district court is affirmed.
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The opinion, of the court was delivered by
Hutchison, J.:
This appeal is supplemental to and an outgrowth of the case of Mickens v. Hill, 126 Kan. 794, 271 Pac. 279, and concerns only the question of attorney fee of the plaintiff’s attorney in that case. It was a compensation case in which there was a written contract between plaintiff and his attorney for 50 per cent of the amount of recovery actually collected by the plaintiff, and the required notice had been served on the defendant to constitute an attorney’s lien. The judgment which was affirmed in this court was for $4,400, on which $1,400 had been paid in installments and the attorney had received on account the sum of $550 when the supplemental proceedings commenced. The motion of plaintiff’s attorney for approval of his fee and fixing a lien therefor was heard by the district court on March 2, 1929, and the court held the attorney to be entitled to a fee of 25 per cent of the amount of recovery actually collected by plaintiff and found that he had already collected $550, to which ruling the plaintiff excepted.
On July 2, 1929, the plaintiff, without the knowledge or approval of his attorney, made a settlement with the defendant in writing for $1,800, which by the terms of the writing was to be paid directly to the plaintiff, but instead thereof that amount was paid to the clerk of the court and the court made an order directing the clerk to pay $1,550 to the plaintiff and retain $250 for further consideration. The plaintiff filed a motion asking that the court discharge the $250 in the hands of the clerk and that it be paid to the plaintiff as a part of the final settlement, as provided by the written contract, and for which receipt had already been executed by the plaintiff. Plaintiff’s original attorney also filed a motion for judgment against the defendant on his attorney’s lien for the balance of his fee on the full amount of the judgment recovered at the rate of 25 per cent, as allowed by the court, alleging that he had no knowledge or notice of the settlement until it was filed in court. The court heard both these motions on July 9, 1929, and entered an order directing the clerk to pay Mr. Stark, plaintiff’s original attorney, the $250 balance in his hands. Thus both motions were in effect overruled, and Mr. Stark and the plaintiff both excepted. Mr. Stark, however, accepted and receipted for the $250 as for the balance of his fee in full in the case. The plaintiff appeals from the ruling of the court made March 2, fixing the fee of Mr. Stark at 25 per cent, and also from the adverse ruling of July 9, refusing to give the $250 to plaintiff, and Mr. Stark has filed a cross appeal as to the failure of the court to render judgment in his favor for the unpaid balance of the 25 per cent of the original judgment rendered.
In the first place, the cross appeal must be disposed of without further consideration than to observe that by the acceptance of the benefits of the order the attorney waives the right to appeal from the order which included the fee so accepted. (Fadely v. Fadely, 128 Kan. 287, 276 Pac. 826, and cases therein cited.) Even if the attorney may have been entitled to a judgment against the defend ant because of his lien, the acceptance of the allowance in full for such fee and his receipt in full inures to the protection of the defendant under the lien as well as the plaintiff under the contract and the court’s allowance, and his acceptance of it under the order of court as payment in full of his fee waives his right to review or call in question the order which also deprived him of the further recovery which he claimed.
The plaintiff as appellant here insists that the court erred in granting the attorney a 25 per cent fee because it was not granted in compliance with the requirements of R. S. 44-536 as to the allowance of attorney fees in compensation cases.
The contract for the 50 per cent attorney fee was in writing and the theory of the appellant is that when the court disapproved that amount, the contract was .disapproved and set aside and the allowance of 25 per cent was not on the contract, but on the basis of quantum meruit, whereas it is required by the statute that the con-' tract as to fee be in writing and approved by the court in writing. This theory is inaccurate to the extent that it fails to recognize the necessary condition or requirement of the- statute as to the approval by the court, the same as if it had been expressly embodied in the contract. (Carter v. McPherson, 104 Kan. 59, 177 Pac. 533.) There was only one thing about the contract of employment that could possibly fail to get the approval of the court, and that was the amount of the fee. When this contract was executed by the client and his attorney it said, in effect, we agree upon a 50 per cent attorney fee, provided that amount meets the approval of the court. The contract was not complete in that particular, nor enforceable as a lien on the judgment or award until passed upon by the court, either before or after judgment, and the disapproval of the court being practically limited to the amount of the fee would not be a setting aside of the contract, but a modification of the amount of the fee and an approval of the contract with such modification.
“The statute recognized the fact that claims of attorneys for fees for services in procuring agreements, awards and judgments for compensation, would arise, and recognized the fact that such claims could become enforceable liens. The purpose of the statute was protection to workmen. That purpose was accomplished without impinging on the general law by requiring contracts for professional services to be in writing and to be approved by the court or judge.. While this approval is a condition to lien, it is not a time condition. The method of perfecting a lien is still that prescribed by the general statute, and when perfected the lien will attach for whatever amount the court finally approves.” (Graham v. Elevator Co., 115 Kan. 143, 145, 222 Pac. 89.)
The appellant further urges that the court erred in overruling his motion for directions to the clerk to pay the $250 to him as the settlement contract provided, and in giving the money to the attorney because the attorney had elected by his motion to press his lien against the defendant, and in so doing had waived his right to enforce the contract against the plaintiff and was estopped from doing so. It may be conceded that appellant had not only a contract obligation of his client for his attorney fee, but also a lien on the judgment and money getting into the hands of the clerk of the court in payment or settlement of the judgment, but that would not prevent him from recovering on a different remedy than that which he first pursued. He could pursue them together or separately. The remedies must be inconsistent before they come within the rule that constitutes a waiver under the election of remedies, or create an estoppel, and the remedies in this case are not inconsistent with each other.
“It is a general rule that if one having a right to pursue one of several inconsistent remedies, makes his election, institutes suit, and prosecutes it to final judgment or receives anything of value under the claims thus asserted, or if the other party has been affected adversely, such election constitutes an estoppel thereafter to pursue another and inconsistent remedy.” (10 R. C. L. 703.)
“A person cannot be estopped from claiming property by acts which have neither injured nor prejudiced the one asserting the estoppel.” (Jacquart v. Jennings, 118 Kan. 224, syl. ¶ 2, 235 Pac. 101.)
The appellant in this case has not been injured in any way. He has paid his attorney no more than he promised to pay, in fact less than half what he promised. The fact that the attorney might possibly have recovered the full amount of the fee from the defendant does not make it obligatory that he so recover it, nor was his attempt to do so inconsistent with his right to.recover it from the money paid into court in settlement of the judgment.
We find no error in overruling appellant’s motion as to the $250 in the hands of the clerk, nor in the order of the court directing the payment of the same to the attorney in settlement of the balance of his attorney fee.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
As this action reaches this court it is one to construe the will of Page Guthrie, deceased. He and the plaintiff, Lottie Guthrie, were married in 1911 and lived together as husband and wife on a farm until his death in November, 1927. In 1922 Page Guthrie made his will, to which his wife consented in writing. After his death his will was duly probated and his estate is being administered under it. We set out the paragraphs of the will necessary to be construed, italicizing the portions in controversy.
“1. I direct that my funeral expenses, that the expenses of my last sickness, and that all of my just debts be first paid in full.
“2. To my wife, Lottie Guthrie, I give, devise and bequeath, fully and without reservation [200 acres of land is described] subject to any and all encumbrance on any and all parts thereof, and to my said wife I also give, devise and bequeath an undivided one-half of all the personal property of which I may be the owner at' the time of my death, all of the property herein given being subject to the payment of a one-half of the above expenses and to a one-half of the above debts.
“3. To [two brothers and two sisters are named] I give, devise and bequeath [80 acres of land is described] in equal parts, and to [the same persons] I give, devise and bequeath, in equal parts, an undivided one-half of all of the personal property of which I may be the owner at the time of my death, all of the property in this paragraph being given subject to the payment of a one-half of the above expenses and to a one-half of the above debts.
“4. To my brother, Ernest Guthrie, I give, devise and bequeath all of my right to and all of my interest in” [160 acres of land is described. This interest was an undivided one-eleventh.]
At the time of the death of the testator there were encumbrances amounting to $1,832.93 on the 200 acres devised to plaintiff. The home of the parties had been on this land for many years, and after the death of the testator the widow and her son by a former marriage continued to make it their home. There were no encumbrances on the lands described in paragraphs 3 and 4 of the will. There was a total personal indebtedness of $2,812.35, of which $1,481.48 had .been paid at the time of the trial of this case from rents and personal property passing to the executor, leaving unpaid personal debts of $1,330.87. This, plus the encumbrances on the 200 acres, amounts to $3,163.80. The question in controversy is: By the terms of the will is the plaintiff, Lottie Guthrie, required to pay all the encumbrances on the 200 acres ($1,832.93) and one-half of the other debts (one-half of $1,330.87), which would make her total payments $1,832.93 plus $665.44, or $2,498.37; or is she to pay one-half the total $3,163.80, which would be $1,581.90? Stated from the viewpoint of defendants, the brothers and sisters named in paragraph 3: Are they required to pay one-half of the total $3,163.87, which would be $1,581.90, or only one-half of the debts, exclusive of the encumbrances on the 200 acres, which would be $665.44? It was stipulated that the 200 acres described in paragraph 2 is worth $7,000 and that the 80 acres described in paragraph 3'is worth $2,000.
The trial court held that the plaintiff should pay but $1,581.90, one-half of the total, and that the defendants, the brothers and sisters named in paragraph 3 of the will, should pay an equal amount, $1,581.90, and further held that the plaintiff and the defendants should each pay one-half of the expense of administration and the costs of the action.
The defendants have appealed and contend that this construction does not properly interpret the will, and specifically that it fails to give force to the clause “subject to any and all encumbrance on any and all parts thereof,” in the second paragraph of the will. This contention seems sound and requires a reversal of the case.
In the interpretation of a will a court should give consideration to all of its provisions. (Brown v. Brown, 101 Kan. 335, 166 Pac. 499; Otis v. Otis, 104 Kan. 88, 177 Pac. 520.) Excision will be used only as a last resort. (Regnier v. Regnier, 122 Kan. 59, 251 Pac. 392.) In determining the intention of a testator the words of the will are to be read in the light of the circumstances under which it was written, including the condition, nature and extent of the testator’s property and his relations to his family and to beneficiaries named in the will. (Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Hawkins v. Hansen, 92 Kan. 73, 139 Pac. 1022), but, generally speaking, evidence as to the intention of a testator, separate and apart from that conveyed by the language used in the will, is not admissible for the purpose of interpreting the will. (Postlethwaite v. Edson, 102 Kan. 104, 171 Pac. 769; 28 R. C. L. 268 et seq.)
It will be noted that the devise to plaintiff of the land described in paragraph 2 of the will is subject to the encumbrances thereon. In other words, she was not devised any interest in the land that was represented by the encumbrances. The judgment of the trial court permits plaintiff to pay a sum less than the am'ount of the encumbrances on the property devised-to her and in full payment of the encumbrances and of one-half of the personal debts. This construction would leave an interest in the 200 acres of land described in paragraph 2 (the amount of the encumbrances, $1,832.93, less the amount plaintiff is required to pay, $1,581.90), which was not devised to anyone. Partial intestacy will not be presumed. (In re Brown, 119 Kan. 402, 239 Pac. 747; Fielding v. Alkire, 124 Kan. 592, 261 Pac. 597; R. S. 22-258.)
Appellee argues that the words “all my just debts” used in paragraph 1 of the will necessarily include debts secured by encumbrances on the 200 acres of land, as well as personal debts, and that these are the debts referred to as “the above debts” in the clauses used in the last part of paragraphs 2 and 3 of the will. If that were the intention of the testator there would have been no purpose of putting into the devise of real property to plaintiff in paragraph 2 the words “subject to any and all encumbrance on any and all parts thereof,” for the result contended for by appellees would have been reached by the omission of that language. A provision in the will that the disposition to be made of his property by-a testator shall be subject to “all my just debts,” or a provision in the first paragraph of the will that “all my just debts be first paid,” has been spoken of as a perfunctory statement (In re Brown, 119 Kan. 402, 403, 239 Pac. 747), meaning by that that the property of the deceased would be subject to the payment of his debts whether his will contained a clause of that character or not. In other words, it really adds nothing to a will so far as subjecting the property of the testator to the payment of his just debts.
It seems clear that the testator thought of encumbrances on the 200 acres of real property as being something distinct from debts, as he used those terms in the will. He does not call these encumbrances debts. While it is true they represented debts, the testator treated them as different things. It may be further noted that paragraph 2 of the will, generally speaking, deals with two different things. First, it is a devise of real property subject to encumbrances ; second, it is a bequest of a one-half interest in his personal property subject to the payment of one-half of the testator’s debts. This indicates that the testator thought his personal property would be sufficient to pay his debts other than the encumbrances, and that the one-half of the personal property bequeathed to the plaintiff in paragraph 2 of the will would be ample to pay one-half of such debts.
Paragraph 3 of the will contains a devise of real property to the brothers and sisters named, and also contains a bequest to them of one-half of the personal property, but makes all of the property given to them by the paragraph “subject to the payment of a one-half ... of the above debts.” Making the real property devised, as well as the personal property bequeathed by this paragraph, “subject to the payment of a one-half of the debts” tends to. indicate that the testator thought it possible that the one-half of the personal property bequeathed to defendants would not be sufficient to pay one-half of the debts, in which event the real property devised to them should also be subject to such payment.
Paragraph 4 of the will devised the interest of the testator (an-undivided one-eleventh in 160 acres of land) to his brother, Ernest Guthrie, but this paragraph contains no statement with respect to-whether it shall or shall not be subject to the payment of debts.
As we understand this record, the personal property of the testator-has been exhausted. The encumbrances on the real estate have-not been paid, and there are unpaid personal debts of the estate-amounting to $1,330.87. The real question for determination is. what real property disposed of by the will is subject to the payment of these debts, and in what proportion or share. It seems clear that the 200 acres devised to plaintiff are subject to the encumbrances thereon, $1,832.93, and that the plaintiff will have to> take care of that. By paragraph 3 of the will one-half of the other debts is made a particular charge upon the eighty acres devised to the defendants. This amount is $665.44. The will makes no specific provision for the payment of the other half of such debts; or, more accurately, the provision made for their payment out of the personal property has proved to be ineffectual, for the reason that the personal property is now exhausted. So we have debts of the estate amounting to $665.44 for the payment of which the will makes no specific provision. This must be paid from the real property of the estate, for there is no other property from which it can be paid. The creditors are entitled to have any of the real property of the estate, other than the homestead of plaintiff, sold for the payment of these debts. They cannot look to the homestead. But since the devisees would be entitled to contribution among themselves, the other one-half, $665.44 of the general debts, should be apportioned against the devised real property subject thereto in accordance with the fair value of such real property. The plaintiff should be required to select her homestead of 160 acres from the 200 acres devised to her; the other 40 acres, less the encumbrance thereon and property chargeable thereto, should be valued; the 80 acres devised to defendants by paragraph 3 of the will, less the $665.44 already charged thereon, should be valued, and the interest in the 160 acres devised to Ernest Guthrie by paragraph 4 of the will should be valued and one-half of the personal debts apportioned in accordance with such values. We have used specific figures because we found them in the abstract, but these may have become increased by interest accumulations' or otherwise, or decreased by payments made. This, however, should not be confusing.
The judgment of the court below will be reversed with directions to ascertain the value of the real property as above outlined and to render judgment in accordance with the views herein expressed. It is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
This is a mortgage foreclosure action brought by a building and loan association against the record owner of a lot in Augusta, Kan., on which a “home beautiful” had been recently built, and ten other individuals, partnerships and corporations furnishing material and equipment for the construction of the building thereon.
The appeal is by one of the defendants, the Long-Bell Lumber Company, a corporation of Missouri, which maintains a lumber yard in Augusta, Kan., and furnished lumber for the construction of the building. The appeal is from the finding and judgment of the trial court denying the lumber company a lien on the property.
The pleadings put in issue the questions of the existence of, and right to, a mechanic’s lien, and also the question of the same having been waived by the lumber company. The trial court made extensive findings of fact and conclusions of law and rendered judgment for the building and loan association on its mortgage, and denied the right of each and all the materialmen, including the Long- Bell Lumber Company, to liens under the mechanic’s lien statute, one of the findings being that the local manager of the lumber company did not have authority from the lumber company to waive the right of the company to a mechanic’s lien as he had attempted to do. This latter question is fully abstracted and briefed in this appeal, but as there is no cross appeal that question is not properly here for consideration, except as it is in some instances inseparably connected with the other question in the testimony and findings.
The plaintiff in its petition alleges that the lumber company was one of the cooperators engaged in the advertising scheme of building the “home beautiful,” and its local manager, Edmund F. Speck, was elected by all of them to take the title to the lot in his name and execute the mortgage to the building and loan association to secure sufficient funds to purchase the lot and defray the labor bills in the erection of the building. The defendant Long-Bell Lumber Company in its answer denies that it ever entered into any cooperative arrangement with the other materialmen and that its local manager, Edmund F. Speck, was ever authorized to enter into such an arrangement, and alleges that it did enter into a verbal contract with Edmund F. Speck and the materialmen and the plaintiff building and loan association to furnish them lumber and building material for the construction of the building on the lot in question, and to its answer is attached a copy of the statement for materialman’s lien duly filed by it, in which it refers to the other materialmen and the building and loan association as the beneficial owners of the property, and Speck as the record owner thereof.
Finding No. 3 of the trial court gives the names of the material-men and the materials which they furnished, ten in all. The list includes the Long-Bell Lumber Company, and finding No. 17 gives the value of the material so furnished by each of them. Finding No. 4 gives the description of the lot on which the “home beautiful” was constructed.
The following other findings of fact and conclusions of law made by the trial court are particularly pertinent to the question involved herein:
“Second. Edmund F. Speck is the local manager at Augusta for a lumber yard owned by the Long-Bell Lumber Company.
“Fifth. About the first part of June, 1927, said Dan came to Augusta and interested the Augusta Gazette in a project to construct what is commonly called ‘a house beautiful.’ This project included the formation of an associa tion of dealers in an understanding whereby such dealers and associates would agree to procure real estate for the erection of a dwelling house thereon, each dealer to furnish for use in constructing and equipping said house such materials and equipment as were sold or handled by such dealer and to furnish them at cost plus a reasonable handling charge, said real estate and dwelling and all furnishings and equipment to belong to said dealers. The laborers, a part of the real-estate cost and other items of expense not furnished by said dealers to be paid for from funds to be obtained from a first mortgage on real estate and improvements, said building when completed to be opened to public inspection for a few days, the dealers to advertise and display the wares so furnished by them. The management of said enterprise to be in control of said dealers, but for convenience they to choose an agent as chairman, manager or trustee to handle said project. That said real estate and building and furnishings should be later sold under the direction of said dealers to the highest sealed bid and the proceeds over and above the mortgage should be divided among said dealers, and those contributing to said project as members of said association, in payment of their accounts and the amounts contributed by them, in proportion to their respective accounts. If there was a loss they to share the loss in the same proportion, and if a profit it should be divided in the same way.
“Sixth. In June, 1927, certain dealers and others held several informal meetings at which this project was discussed. Not all of the same persons were present at all of the meetings and no records were kept. At one of these meetings Edmund F. Speck was chosen as an agent or trustee for those who desired to associate themselves in said project as contributors of materials, real estate, furnishings and equipment and other expense necessary in the construction of said ‘house beautiful.’ Said persons and corporations so associating themselves together were referred to as ‘cooperators,’ as ‘creditors’ and as ‘trustees.’ The following-named persons, partners and corporations, either at said meetings in June, 1927, or within a short' time thereafter, to wit: W. A. Hall, Ledbetter & Son, the Long-Bell Lumber Company, Govenius Brothers, R. L. Wilday, the Western Distributing Company, Haaga & Graham, Roy A. Haines, the Prairie State Bank, and Jackson-Drake Furniture Company orally agreed with each other to associate themselves together in the carrying out of said project in substantially the form and under the terms and conditions set forth in the preceding finding, and this finding.
“Eighth. The duties of said Edmund F. Speck as the local manager of said lumber yard for the Long-Bell Lumber Company, among other things, were to receive building materials shipped to said yard, to sell such materials at retail, either for cash or credit as his judgment might dictate, to make collections, hire helpers, to do some local advertising, solicit business, to change prices within certain .limits fixed by the company, to account and report to the company.
“Ninth. . . . The secretary later and before accepting the application told Speck that he must hold the title as an individual and not as a trustee, and also that all of the dealers and others who were going to be interested in the project would have to sign a written waiver of the right to a mechanic’s lien and asked Speck if he had authority as agent of the Long-Bell Lumber Company to waive a lien on its behalf. Speck told the secretary that he did not have such authority, but would phone to the general office and find out whether his company would consent to waive its lien rights. Speck thereupon. called J. H. Foresman, the first vice president of the company at Kansas City, by phone, explained to him that said dealers were building a ‘home beautiful’ in Augusta, the nature of the project, and that his company had been asked to furnish the lumber and other materials at cost plus a reasonable handling charge, and asked if it would be all right for him to join with the other dealers in behalf of the lumber company in the project. After some discussion about the advertising benefits and after they had estimated the company’s probable loss would be from $50 to $100, the vice president orally authorized Speck to associate the company with the other dealers in carrying out said project. There was nothing said between Speck and Foresman about the company waiving its rights to a lien. Thereafter Speck orally agreed on behalf of said company to associate with the other dealers in said project and in good faith, and believing he had been authorized to waive a lien, so informed the secretary of the plaintiff association, and Speck signed the waiver on behalf of the company as attached to plaintiff’s petition. The deed made to Speck as trustee was returned to Haines, and on July 9, 1927, Haines executed a new deed to Speck individually, all of the written waivers of liens as attached to plaintiff’s petition were presented to the secretary of the plaintiff association, said application was accepted, and on July 9, 1927, Speck and wife executed the note for $2,500, and a mortgage securing the same, to the plaintiff upon the real estate described herein . . .
“Twelfth. None of the members of said dealers’ association, except the plaintiff and the Long-Bell Lumber Company, had any actual notice or knowledge that said Edmund F. Speck did not have actual authority as such local manager to agree on behalf of said company to waive the right to a lien in its behalf.
“Nineteenth. Said Speck did not have actual authority from the lumber company to waive'the right of the company to a mechanic’s lien.
“Twentieth. At the time said land was conveyed to Speck and at all other times, neither said Speck nor any of the members of said association had any fraudulent intent, and it was orally agreed by and between Speck and between each of said members that the title to said land was to be taken in the name of and held by Speck as the agent of and in trust for such members to the extent that each contributed to the project of acquiring said land and erecting said dwelling and disposing of the same. Speck does not now and never has made any claim to said real estate, except his claim to an equitable lien to secure him for the money he advanced to pay for labor.”
“Conclusions of Law.
“Fifth. The members of said association of dealers as hereinbefore found and named by the court are the equitable owners of said real estate and all of the improvements, furnishings and equipment, and all of said property is now subject to sale. None 'of the members, of said association are liable to each other in any sum or on any account set up in the pleadings, none of them are entitled to a mechanic’s lien and each and all of the mechanics’ liens sought to be foreclosed are null and void and not entitled to foreclosure.
“Sixth. As between the members of said association said alleged waivers of mechanics’ liens set up in the pleadings are of no force or effect.
“Tenth. Under the authority given to Speck by the lumber company and as its local manager of the Augusta yard, the lumber company held said Speck out to the world as authorized to act for it in the furnishing and selling of materials from said yard to the public, and the members of said dealers’ association were justified in believing that said Speck was authorized to make the agreement that the court finds he did make, and the lumber company would have been bound by such agreement even though the company had not specifically authorized him to make such agreement.”
One of the paragraphs of the journal entry of judgment is as follows:
“That each and all of the other defendants herein K. e., except Speck] are the equitable owners in the ratio that their respective claims as found herein bear to the whole amount of their claims, subject only to .the liens of the plaintiff and Edmund F. Speck, to be paid from the proceeds of any sale of said premises; but that they are entitled to no other relief.”
The following is part of the testimony of Edmund F. Speck:
“I have been acting for the Long-Bell Lumber Company as local manager at Augusta, Kan., for the past four years. I handle their business there and sell lumber and materials, and make contracts for the sale of them. I handle all the duties incidental to the business there that come in my scope. In July, of 1927, I was approached by Mr. Jlegler and Mr. Sol Dan in regard to the ‘home beautiful’ project.
“Premiums and blue prints were shown me by Mr. Wilday, and I was asked to furnish the materials. I met with the representatives of the Western Distributing Company, Ledbetter & Son, Govenius Bros., of Jackson and Drake, and with Mr. Hegler, of the Augusta Gazette, and Sol Dan, the promoter. I was selected at the meeting to act as chairman.
“The general plan was talked over at one of the meetings, and it was agreed that each merchant was to furnish materials at cost, plus a reasonable handling charge. After the house was completed, it was to be opened to the public, and then sold to the highest bidder. I was to take title of the property in my name and after the property was sold the building and loan was to receive their dollar for dollar they put into the project, and the remainder was to be divided among the cooperators in proportion to the amount they had put in.
“After this transaction came up I had a conversation over the phone with Mr. Foresman, general manager of the retail yard division of the Long-Bell Lumber Company, concerning this transaction. I told Mr. Foresman that they were planning on building a model home in Augusta, and that they had come to us, inviting us to furnish the material to go into this proposition, at cost plus a reasonable handling charge, and I wanted authority to sell that material. . . . None of the details of the transaction as to how it was to be financed were discussed between me and Mr. Foresman in that conversation or at any other time. I told Mr. Foresman that they wanted the Long-Bell Lumber Company to furnish material on a cost-plus basis. He told me that the company was willing to do that if we didn’t have more than a fifty- or one-hundred-dollar loss in the proposition. I told him I thought we would have approximately that much, but it looked like a good advertising proposition. . . .
“I hold title to the property in trust for the group of cooperators, Haaga and Graham, W. A. Hall, the Western Distributing Company, Govenius Brothers. We talked together about holding the property in trust in my name for all of them. If there was any profit made it would belong to those mentioned, so as agent of the Long-Bell Lumber Company I sold this material to myself as trustee for these parties.”
The following is part of the testimony of J. H. Foresman, general manager of the retail yard division of the Long-Bell Lumber Company, whose office is in Kansas City, Mo.:
“That Mr. Speck called him over the phone in the early part of July and put up the proposition that they were going to build a ‘home beautiful’ down there and that the Long-Bell Lumber Company had been selected as the concern from whom they wanted to get the material on a basis of cost plus ten per cent. ‘He knew it would cost us 10 per cent to do business and that we would be delivering this material without any profit.’ When I asked him why he wanted to do that he said it was a good advertising proposition. I asked him how much it would cost as an advertising proposition. He studied a minute and said fifty or one hundred dollars. I asked him if he thought it would be worth it, and he said it worfld. I told Mr. Speck we did not like to take the chance, but we would back his judgment, and he could go along with it if he liked. He did not say anything about waiving lien rights of the Long-Bell Lumber Company, or about giving or making a mortgage on the property. Mr. Speck did not make any explanation of the details or of the financing of the proposition and we didn’t think that was necessary because he had his instructions. Nothing was said about the other merchants and materialmen being in and we had no knowledge of the details of the transaction. I supposed there would be other merchants in it, but I didn’t understand that the hardware men and materialmen would join and put up the house and divide the loss, or profits if there were any. I didn’t have any talk about dividing the loss. We never go into a proposition like that if there is a loss. We go into that first. Mr. Speck didn’t explain to me how we would lose fifty or a hundred dollars. I knew it was a ‘home beautiful’ project. There had been some of them in our city and we allow a manager to spend money for advertising purposes, and Mr. Speck said that was what he was charging the $50 or $100 to. Nothing was said by either Mr. Speck or me about the ‘home beautiful’ being a joint venture. It is the general practice and custom among lumber companies not to give their local manager power to waive liens.”
It is contended by the appellant that there was no evidence to show that the lumber company was one of the cooperators or associated with the other materialmen in this project as the court found. We have no difficulty in finding from the evidence of the two representatives of the company alone ample evidence to sustain the finding in this respect. The general manager, after being told that it was an advertising scheme in connection with the building of a “home beautiful,” where the promoters wanted the company to furnish the lumber on the cost-plus basis that might cost them as much as $100, told the local manager, “We do not like to take the chance, but we would back his judgment and he could go along with it if he liked.” He further said he knew it was a “home beautiful” project and that there were some of them in Kansas City, and “we allowed our men to spend money for advertising purposes.” The attitude of the local manager presents an anomalous situation in that he, as local manager of the lumber company, was approached by the promoters of the project and requested to furnish the lumber needed therefor. He met with representatives of other parties who were requested to furnish other material for the building, was elected chairman of the group of materialmen, later was elected trustee to own and hold the title to the property, and then as trustee for all of the materialmen except the lumber company, agreed to purchase from himself as local manager of the lumber company the necessary lumber for the building. When, where and how he excluded, from the group of which he was chairman and trustee, the only company which he in the first place represented is not shown nor suggested. His attitude compels the conclusion that the other nine materialmen in the group did not want a chairman or trustee from their own number or one entitled to meet with them, but one who represented the only party requested to help with the project which did not or would not become one of the group.
Without resorting to the testimony of any other witness, we conclude there was sufficient evidence to support the finding that the Long-Bell Lumber Company was a member of the group.
But appellant insists it would be impossible and illegal for it, being a foreign corporation, to become a member of a partnership under any circumstances, and certainly without an authorization of its board of directors, citing eminent authorities. Among others is volume 2, Fletcher’s Cyclopedia Corporations, section 841, which after stating the general rule to that effect modifies it with mánv statements like the following:
“However, a corporation may enter into a joint venture with an individual, where the nature of the contract is in line with the business its charter authorizes.” (p. 1802.)
“Whether an agreement actually constitutes a partnership is to be determined by the general rules relating to partnerships, which are the same when a corporation is a partner as when all the partners are individuals. Of course, mere business relations between corporations, or between a corporation and an individual, do not necessarily involve the corporation in the partnership relation.” (p. 1804.)
“Nor does it apply so as to prevent the law from imposing upon a corporation the liability of a partner as to third persons by reason of a contract made by it in furtherance of the objects of its creation, since the law may impose such a liability, not only when there was no intention to become a partner, but also when no contract of partnership could have been made.” (p. 1805.)
Appellant assumes this group relation of these cooperators amounted to a partnership, which is very doubtful, but not necessary to be determined here. From the testimony as well as the findings of the court there existed no financial obligation of one cooperator to another; there was no liability for losses other than the value of the material contributed; they acted through a common trustee who spoke and acted for all, and there was nothing whatever to indicate that any one of them could bind the others.
Appellant concedes that this case differs only from the recently decided case of Amsden Lumber Co. v. Arnspiger, 129 Kan. 143, 281 Pac. 931, in that the Long-Bell Lumber Company is not admittedly one of the cooperators, and that it is here acting through a local manager. These distinctions depend upon proof and are purely questions of fact, and our approval of the finding of the trial court that the Long-Bell Lumber Company was one of the group of cooperators, puts this case exactly in the same position as the case cited, so far as the application of the law is concerned, and when by the findings of fact in this case the lumber company is placed in the same position as the lumber company in that case was admittedly,'the same legal conclusion must necessarily follow, that the Long-Bell Lumber Company had no right to a mechanic’s lien in this case.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
I. J. Shaffer brought this action to enjoin the city of Haddam and certain officers against levying and collecting a special assessment on real estate of appellee in Haddam City, sought to be charged with a special tax for the construction of a sidewalk. The trial court held that the plaintiff was entitled to an injunction and adjudged that the injunction be made permanent. Defendants appeal.
Haddam is a city of the third class, and on October 3, 1927, it passed a motion to give a thirty-day notice to plaintiff to construct a cement sidewalk on the south side of his property. He was in California at the time, but on October 12, 1927, written notice to the effect that the city council had ordered a concrete sidewalk constructed on the line of his property, came to his attention. On November 7, 1927, the council passed a motion ordering the mayor to have the sidewalk constructed. The plaintiff learned on November 8 that the sidewalk had been ordered by the council. By letter dated that day Shaffer protested against the building of the sidewalk and disclaimed any liability to pay for same. A cement sidewalk was constructed by the city and certified to the county clerk of Washington county, to the amount of $263.10 as the cost of the sidewalk, and $39.45 as interest on the money advanced, all to be levied as a special assessment against plaintiff’s real estate, for collection with the tax of 1928. In November, 1928, plaintiff tendered to the county treasurer the amount of tax due on his property other than the special tax for the building of the sidewalk, but this was refused. Within a few days afterwards this suit was filed. It was found, among other things, that an ordinance of the city passed in 1924 provided that all sidewalks thereafter constructed should be of vitrified brick. No other ordinance of a general nature providing a method for the construction of sidewalks had been adopted, and no special ordinances were passed in regard to this particular sidewalk. There was no petition on file asking for its construction. Plaintiff did not return to Haddam until November, 1928, shortly before this suit was filed, and at that time he sold his household goods and abandoned his residence in Haddam. The court concluded that a city of the third class may provide for sidewalks either in accordance with R. S. 12-611 or in accordance with R. S. 15-402. It further concluded that the sidewalk in question must have been built under section 15-402, since the other section required that a petition signed by ten or more citizens must be presented to the city council, and none was presented. The court held that an ordinance was necessary to the construction of a sidewalk and to imposing a special assessment on abutting property, and that as there was no ordinance authorizing the improvement a permanent injunction was allowed.
The levy of the special tax must be regarded as invalid since it was not done by ordinance, but only by the adoption of a mere motion. It is contended that as the statute does not in express terms require the passage of an ordinance to accomplish that purpose, it may be'done by motion or resolution. In the statute prescribing the powers of the council or governing body of a city of the third class, the legislature has provided that the city is empowered to enact ordinances for the making of a number of improvements, among which is the making of sidewalks, and the levy of special assessments on abutting property. (R. S. 15-402.) The statute clearly implies the method by which it is to be done, and that an ordinance is required. It was decided in Sloan v. Beebe, 24 Kan. 343, that the building of a stone sidewalk where an ordinance authorized the building of a plank one, that a levy of an assessment on property to pay for it without an ordinance was illegal and void. In Newman v. City of Emporia, 32 Kan. 456, 4 Pac. 815, the city undertook to build a sidewalk and the levy of an assessment by a resolution; it was held that an ordinance was necessary to a valid levy and that a resolution was insufficient to. warrant the levy of an assessment. In the course of the opinion it was said:
■ “Now all things necessary to be done were done, and done at the proper time, except that they were not done by ordinance, but .were done only by resolution. . . . Now we think the same ought to have been done by ordinance. Such undoubtedly would have been regular and formal under the laws of Kansas, and we think such laws require it. (Citing statutes.) It is true and the statutes nowhere in express terms require that the same must be done by ordinance; but we think they require it by the strongest inference and by necessary and unavoidable implication.” (p. 461.)
See, also, Barron v. Krebs, 41 Kan. 338, 21 Pac. 235; Dargatz v. Pauley, 91 Kan. 698, 139 Pac. 419.
The city had passed an ordinance in 1924 providing that all sidewalks hereafter constructed or rebuilt should be of vitrified brick, but the sidewalk in question was not built under that ordinance as it was constructed of cement. Defendant does not rely on this ordinance for authority, and if it did the building of a cement walk would not have been within the authority of the ordinance which provided that all sidewalks should be built of vitrified brick. (Sloan v. Beebe, supra.)
There is a contention that the injunction should be denied because of the laches or delay of plaintiff in not bringing his action until after the sidewalk was built. The city was acting with con siderable speed and the plaintiff did not loiter on the way. The motion providing for notice to the plaintiff was passed October 3, 1927. Plaintiff received that notice in California on October 12. The city ordered the mayor to build the sidewalk on November 7. The plaintiff responded on November 8, protesting the action of the city and disclaiming liability. The walk was built in November or December, 1927. The plaintiff had done nothing to encourage the expenditure by the city, but on the contrary had taken prompt action to discourage the improvement by denying the right of the city to impose the liability. We find no basis for the claim of laches or that plaintiff has estopped himself to enjoin the imposition of the illegal tax. (Keys v. Neodesha, 64 Kan. 681, 68 Pac. 625.)
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover the wages of Ed Rodell, who worked on the farm of defendant, Elry Wyant, as a farm hand. It was brought before a justice of the peace and an appeal was taken to the district court from the judgment rendered. On the trial in the district court judgment was given in favor of plaintiff for $250. The verdict returned by the jury was for $282, but as the plaintiff had only asked for $250 in his bill of particulars, the plaintiff asked that the judgment be reduced to that sum, and this was done by the court without opposition.
After some evidence ha.d been introduced by plaintiff in respect to the time when plaintiff began work for defendant, it was shown that he began on March 27,1927, whereas it has been alleged by the plaintiff that work began in June of that year. Thereupon the plaintiff asked and obtained leave to amend his bill of particulars so as to state the earlier .date in order to conform with the proof. Of this ruling defendant complains.
It is not necessary to cite authorities to show that an amendment of the character mentioned may be and should be allowed. It was an obvious mistake and the amendment did not substantially change the issues in the case. Such an amendment was within the discretion of the court and certainly there was no abuse of that discretion. The defendant in his answer,admitted that plaintiff worked for him as a farm hand at different times from March 27, 1927, to April 13, 1928.
There is a contention that the evidence did not warrant the verdict rendered. There was some dispute in the evidence as to the number of days plaintiff had worked for defendant, and also as to payments made to him. Defendant claimed that during the period of service two settlements were made with plaintiff when full payments for his services had been made. In answer to special questions the jury found that the settlements claimed by defendant had not been made; that plaintiff had worked for defendant eighty-five days between March 27, 1927, and July 13, 1927, and that he had worked for 150 days from July 13, 1927, until February 27, 1928. In addition they found that plaintiff was entitled to $6 for groceries furnished and $2 for roaching mules. An examination of the testimony shows that it is amply sufficient to support the verdict, and finding no error was committed the judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is a proceeding by a workman for compensation under the workmen’s compensation act (Laws 1927, ch. 232). It was stipulated, or conceded, that the parties were operating under the act; that the workman received an injury by accident arising out of and in the course of his employment; that his average weekly wage was $22.80, and that due notice of the injury was given and claim for compensation made. There is no controversy here about the injury received by the workman. The commissioner of compensation found that claimant suffered a compound fracture, oblique, at about the middle third of the left leg, both the tibia and fibula being involved, and there is an overlapping of these bones due to slipping after they had been set; that as a result claimant was temporarily totally disabled for thirty-eight weeks and two days; that following such temporary total disability claimant was left with, and now sustains, a loss of use of his left leg, as a result of the injury in question, of 33% per cent, being due to loss of function, nerve impairment and blood-supply impairment.
On appeal' to the district court these findings were modified in one respect only, the district court finding that the temporary total disability was for a period of forty-one weeks and four days.
The only controverted question in the case is how to compute the sum due plaintiff. The commissioner of compensation computed the amount of compensation accrued and accruing to claimant as follows: For temporary total disability, 38 weeks, 2 days, at $13.68 per week, $524.40; for permanent partial loss of use of the leg for 66 weeks and 4 days, at $13.68 per week, $912; making a total of $1,436.40. On appeal the district court made the computation as follows: For temporary total disability, 41 weeks, 4 days, at $13.68 per week, $570; for additional compensation during the actual healing period, for 15 weeks, at $13.68 per week, $205.20, making a total of $775.20.
The workman has appealed. We have briefs not only from appellant and appellees, but also a brief amicus curies from the commissioner of compensation and another from an attorney interested in compensation litigation. These briefs present argument in support of different methods of computing the amount of compensation due a workman for an injury such as was found in this case. The difficulty is lack of clearness of the statute in its application to this kind of an injury.
The portions of the statute (Laws 1927, ch. 232) necessary to be considered in the determination of the case will be now stated in substance, where that will suffice, or the pertinent portions quoted.
Section 10 (1) provides for the treatment and care of injured employees at the expense of the employer of not more than $100, except in extreme cases.
Section 10 (2) provides for the compensation where death results from injury. This has no application to the case before us.
Section 10 (3) deals with the compensation to be paid where death does not result from the injury. Subdivision (a) relates to total permanent disability and is not applicable here. Subdivision (6) reads:
“Where temporary total disability results from the injury no compensation shall be paid during the first week of disability, except that provided in paragraph 1 of this section, but after the expiration of said first week payment shall be made in accordance with the provisions of this act, during such temporary total disability, of a sum equal to sixty (60) per cent of the average weekly earnings of the injured workman, computed as provided in section eleven (11) of this act, but in no case less than six dollars ($6),per week nor more than eighteen dollars ($18) per week: Provided, That where such temporary total disability is followed by temporary partial disability, the compensation shall be sixty (60) per cent of the difference between his average weekly wages before the accident and the average weekly wages he is earning or is physically able to earn during such period of temporary partial disability, in any employment, not exceeding, however, eighteen dollars ($18) per week: Provided, The minimum of six dollars ($6) per week elsewhere provided for in this act shall not apply to compensation under this provision, and such payment shall not extend over a longer period than four hundred and fifteen (415) weeks from the date of the accident.”
The pertinent portions of subdivision (c) read:
“Where disability, partial in character but permanent in quality, results from the injury, the injured workman shall be entitled to the compensation provided in paragraph 1 of this section, but shall not be entitled to any other or further compensation for or during the first week following the injury. Thereafter compensation shall be paid as provided in the following schedule, the average weekly wages to be computed . . (There is no controversy in this case as to this computation.)
“(13) For the loss of a foot, 60 per cent of the average weekly wages during 125 weeks.
“(14) For the loss of a leg, 60 per cent of the average weekly wages during 200 weeks.
“(16) . . . Amputation between knee and ankle shall be considered as the loss of a foot. Amputation at or above the knee shall be considered as the loss of a leg.
“(19) Permanent loss of the use of a . . . foot or leg, . . . shall be equivalent to the loss thereof. For the permanent partial loss of the use of a . . . foot or leg . . . compensation shall be paid at sixty per cent (60%) of the average weekly wages, not in excess of eighteen dollars ($18) per week, during that proportion of the number of weeks in the foregoing schedule provided for loss of such . . . foot or leg, . . . which the partial loss thereof bears to the total loss of a . . . foot or leg, . . . but in no event shall the compensation payable hereunder for such partial loss exceed the compensation payable under the schedule for the total loss of such . . . foot or leg . . .
“(21) Whenever the workman is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in paragraph 1 of this section and no additional compensation shall be allowable or payable for either temporary or permanent disability: Provided, however, That the commission, arbitrator or committee may, in proper cases, allow additional compensation during the actual healing period, such period not to be more than ten (10) per cent of the total period allowed for the schedule injury in question, nor in any event for longer than fifteen (15) weeks: Provided further, That the return of the workman to his usual occupation shall terminate the healing period.
“(22) ... In case of temporary or permanent partial disability not covered by schedule the workman shall receive during such period of temporary or permanent partial disability not exceeding 415 weeks, 60 per cent of the difference between the amount he was earning prior to said injury as in this act provided and the amount he is able to earn after such injury in any employment, such compensation in no case to exceed eighteen dollars ($18) per week.
“(25) The total amount of compensation that may be allowed or awarded an injured workman for all injuries received in any one accident shall in no event exceed the compensation provided for in this act for total permanent disability.”
From these statutes the legislative intent appears clearly to be that section 10 (3), subdivisions (a) and (£>) and subdivision (c) paragraph (22), pertain to injuries to portions of the body other than the specific members of the body enumerated in the schedule set out in section 10 (3) (c). Also it seems clear that section 10 (3) (c) pertains to compensation for injuries to the specific members set out in the schedule in subdivision (c). And by paragraph (25) duplication of compensation is avoided.
Hence, to determine the compensation due the workman in this case we consider only section 10 (3) (c) with the portions of paragraphs thereunder numbered (13), (14), (16), (19) and (21) above set out. These provide compensation for foot or leg injuries of three degrees of severity:
First. When the foot or.leg is so severely injured that amputation is necessary. This is spoken of as the loss of the foot or leg. For this a scheduled amount is to be paid. This amount must be computed. The statute gives the formula for that computation. It is 60 per cent of the average weekly wages for 125 weeks for the loss of the foot, or the same for 200 weeks for the loss of the leg. Amputation below the knee is loss of the foot; amputation at or above the knee is loss of the leg. When the scheduled amount is determined it must be paid; that is, it is not diminished for any reason, for a foot or leg once lost by amputation will not grow back and become useful. To this scheduled amount “may, in proper cases," be allowed additional compensation during the actual healing period [sec. 10, (3) (c) (21)]. The extra compensation for the healing period is allowed in cases of amputation only. In the case before us, had the injury to the workman been so severe that amputation was necessary at the place of the injury he would have lost a foot (not a leg) and the scheduled amount of his compensation would have been $1,710 (60 per cent of his average weekly wages, $22.80, for 125 weeks). To this the commissioner, if he deemed it a proper case, could have allowed additional compensation during the actual healing period, of not more than $171 (10 per cent of 125 weeks at 60 per cent of weekly wage). But in this case the injury was not so severe as to require amputation; hence this computation is not applicable.'
Second. The injury may not be so severe as to require amputation of the foot or leg, but severe enough to result in the permanent total loss of the use of the foot or leg. • To determine the amount of compensation to be paid the statute makes this “equivalent to the loss thereof” [sec. 10, (3) (c) (19)]. The injury in this case was at a place below the knee. Had the injury been so severe that amputation would have been necessary at that point there would have been a loss of the foot, and the compensation, as above computed, would have been $1,710. If an injury at the same place, not severe enough' to require amputation, but severe enough to result in total permanent loss of use, the amount of compensation would be the same, $1,710. There could be no additional sum added for a healing period for the reason that the foot is not lost; its use only is lost; there is no wound caused by amputation to heal, and we cannot have a healing period for a condition which is permanent and hence, obviously, will never heal. The workman in this case did not have a permanent loss of use of his foot, so this computation is not applicable.
Third. The injury may not be so severe as to require amputation of the foot or leg, nor so severe as to result in a total permanent loss of the use of the foot or leg, and yet be compensable under the statute. This kind of an injury might result in a temporary partial loss of use of the member, or in a permanent partial loss of use, or in a temporary total loss of use followed by a temporary partial loss of use, or in a temporary total loss óf use followed by a permanent partial loss of use, as in the case before us. We regard all of those conditions as being provided for by the statute, although they are not set out with the detail just stated. The statutory words, “Where disability, partial in character but permanent in quality” [sec. 10, (3) (c)] do not preclude this view, nor do the words “permanent partial loss,” as used in paragraph 19. Certainly they do not preclude this view as applied to the case before us. Here the loss of use is “permanent in quality”; it is not a total loss of use, hence is a partial loss of use, and the fact that it is a total loss of use for a limited time only does not make it otherwise than a partial loss of use. How shall compensation for it be computed? The statute [sec. 10, (3) (c) (19.) ] provides the rule by referring to what should be allowed for the loss of the member. By so referring the injury is found to be to the foot (not to the leg). The statute then provides: “Compensation shall be paid” ... 60 per cent of the weekly wages “during that proportion of the number of weeks in the foregoing schedule provided for loss of such . . . foot, . . . which the partial loss bears to the total loss.” The partial loss of use in this case was full loss of use for 41 weeks and 4 days and one-third loss of use for 83 weeks and 3 days, being the remainder of the 125 weeks named in the schedule. Sixty per cent of the weekly wage is.$13.68, and at this rate for the 41 weeks and 4 days compensation amounts to $570. One-third of this rate is $4.56, and for 83 weeks and 3 days it amounts to $380.43. The sum of these amounts, $950.43, is the total compensation payable in this case.
This computation differs from that made by the compensation commissioner in these respects: We count the period of temporary total disability as 41 weeks and 4 days, being in accordance with the findings of the district court, instead of 38 weeks and 2 days, as found by the commissioner, but we compute it at the same rate per week. Having determined that the injury is to the foot and not to the leg, we regard the 125 weeks as the total time for which compensation can be computed, instead of 200 weeks as computed by the commissioner. The commissioner allowed for the one-third loss of use for the full 200 weeks (should have been 125) without deducting therefrom the 38 weeks and 2 days (corrected by the district court to 41 weeks, 4 days) for which the workman had been allowed for the total loss of use. This was erroneous.
Our computation agrees with that made by the district court in that both allowed for the loss of the use of the foot for 41 weeks and 4 days, at $13.68 per week, the sum of $570. Our computation differs from that of the district court in two particulars: First, the district court allowed for a healing period of 15 weeks. It is our judgment that this is not allowable where there is not an actual loss of the member. Second, the district court allowed nothing for the partial loss of use, one-third, for the remainder of the 125 weeks after the temporary period of total loss of use. In our view this was erroneous. It arose from an incorrect interpretation of the statute [sec. 10, (3) (c) (21)], which provides, in substance, that when a workman is entitled to compensation for a specific injury under the schedule no additional compensation shall be allowed for temporary or permanent disability. In our view the schedule provides for the temporary or permanent loss of use of a member, hence this section does not preclude the allowance of compensation therefor.
The brief of the appellant seeks to uphold the award of the commissioner as distinct from that of the district court, and the brief of appellees seeks to uphold the district court. Our views on these have been previously expressed. The brief of counsel amici curice seeks to apply to the injury in this case the provision of the statute [sec. 10, (3) (b) (21)] hereinbefore set out. As previously stated, we regard those sections as being applicable to an injury received at some place on the body other than to one of the members set out in the schedule. Counsel have cited some cases from other states, but the statutes construed in those cases differ so much from our statute that the cases are not helpful.
The judgment of the court below is reversed with directions to enter judgment that the amount of compensation payable to the workman is $950.43. Credit should be given, of course, for payments which have been made.
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The opinion of the court was delivered by
Burch, J.:
The action was one by the heirs of the vendee of land in possession, under a contract of sale, to recover from the vendor oil-lease money and oil-lease rent money received by the vendor under his contract with the lessee. A demurrer to the petition was sustained, and plaintiffs appeal.
Kroeker sold the land to Buford Johnson under a contract providing for conveyance when the terms of sale were fully performed by the vendee. The contract provided that in case the terms of sale were not performed the sums paid by the vendee should be deemed to be rent paid, the vendee should surrender possession, and the vendor should be released from obligation to convey. The vendor reserved one-sixteenth of all oil, gas and other minerals embraced in the land. Kroeker executed an oil lease, standard form 88, to the lessee, who paid $160 for the lease, and afterward paid $160 as rental. Johnson died, and his heirs sued for one-half of each payment made to Kroeker by the lessee.
Plaintiffs contend Johnson became equitable owner of the land, Kroeker became trustee of the land for the purchaser, and Kroeker had no interest in the land beyond payment of the purchase money. The contention is unsound. It is based on language used in the opinion in the case of Gilmore v. Gilmore, 60 Kan. 606, 57 Pac. 505. The contract in the Gilmore case was one of sale presently operative, did not withhold title until performance by the vendee, and did not provide for surrender of possession in case of nonperformance by the vendee. This distinction was pointed out in the opinion in the Gilmore case and in the opinion in the case of Pickens v. Campbell, 104 Kan. 425, 428, 179 Pac. 343, which was approved in the opinion in the case of Kansas Power Co. v. Smith County Comm’rs, 122 Kan. 252, 255, 251 Pac. 1114. Kroeker’s interest in the land continued to be real estate, and Johnson’s interest did not extend to ownership, legal or equitable.
Suppose Johnson were equitable owner of the land. The money sued for did not arise out of the land. It was paid to Kroeker pursuant to his personal contract with the lessee, which created a privilege only, and no estate in the land. Johnson was not a privy to the contract, either as party or beneficiary. No interest of his could be affected until the lessee undertook to do something on the land, and the petition did not allege that the lessee entered or attempted to enter.
The petition alleged that Kroeker promised to pay Johnson half of the money obtained from the lessee. Plaintiffs undertake to derive consideration for the promise from the contract relation between Kroeker and Johnson. From the foregoing analysis it is plain those relations constituted no consideration for the pleaded promise. Plaintiffs also pleaded that Kroeker acknowledged liability. The demurrer to the petition denied liability, and a mere acknowledgment could have no more potency than a promise unsupported by consideration.
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 by plaintiff to enjoin the state board of medical examination and registration from holding a hearing on the subject of revocation of plaintiff’s license to practice medicine and surgery. A demurrer to the petition was sustained, and plaintiff appeals.
The board of medical examination and registration consists of seven members appointed by the governor by and with the consent of the senate. Each member must be a physician in good standing in his profession, who received a degree of doctor of medicine from a reputable college or university not less than six years previous to appointment as a member of the board. Each member is required to take and subscribe the oath prescribed for state officers, and the oath is filed with the secretary of state. The board is organized by selection of a member as president and another member as secretary, and is required to hold regular meetings on stated days of the year in such of the chief cities of the state as the board may designate. The board has a common seal, and has power to formulate rules to govern its action. The president and secretary have power to administer oaths pertaining to all matters relating to the board’s business. The board is required to keep a record of its proceedings and a register of applicants for license, and the books and register of the board are prima jade evidence of all matters recorded thereon. (R. S. Supp. 74-1001.)
All persons intending to practice medicine or surgery are required to apply to the board for license to practice. The application must be in writing, and must be- accompanied with proof of moral character and satisfactory evidence of study for a prescribed time. All applicants must submit to an examination of a character to test qualification to practice medicine and surgery, except that graduates of certain medical institutions and holders of licenses from other states whose standards are as high as those of this state, may, in the discretion of the board, be admitted without examination. The statute further provides as follows:
“The board may refuse to grant a certificate to any person guilty of felony or gross immorality or addicted to the liquor or drug habit to such a degree as to render him unfit to practice medicine or surgery, and may, after notice and hearing, revoke the certificate for like cause, or for malpractice, or unprofessional conduct.” (R. S. Supp. 65-1001.)
In the year 1916 the plaintiff, John Richard Brinkley, of Milford, Kan., was granted a "license to practice medicine and surgery in Kansas, under the reciprocity provision of the law, and the license is still in effect. On April 28, 1930, a verified complaint was filed with the board, stating causes for revocation of the license. On April 29 the licensee was served with notice, signed by the president and secretary and under seal of the board, that the complaint had been filed, and that a hearing would be had on the complaint at a specified place in Topeka on June 17, 1930, at 2 p. m., which is the date of a regular meeting of the board. The notice informed the licensee he might appear before the board at the hearing, present his defense to the charges contained in the complaint, and be represented by counsel if he so desired. A copy of the complaint was attached to the notice. On May 7, 1930, this action was commenced, to prevent the board from holding any hearing to determine the truth of the charges contained in the complaint.
The petition did not allege that the statute was lame in regard to specifying grounds for revocation of license, and it was not. Neither did the petition allege that the complaint did not state grounds for revocation of license prescribed by the statute. The complaint was by no means confined to challenge of the success of the licensee’s gland operation, the claimed result of which is that dotards having desire without capability may cease to sorrow as do those without hope, and the complaint was not that the licensee is a quack of the common, vulgar type. Considered as a whole, the gravamen of the complaint is that, being an empiric without moral sense, and having acted according to the ethical standards of an impostor, the licensee has perfected and organized charlatanism until it is capable of preying on human weakness, ignorance and credulity to an extent quite beyond the invention of the humble mountebank who has heretofore practiced his pretensions under the guise of practicing medicine and surgery. The petition for injunction denied the charges contained in the complaint, but the ground for injunction was, the board has no power to hold a hearing to find out whether the charges are true or false.
There was no allegation in the petition that the words “may, after notice and hearing, revoke the certificate,” were insufficient to authorize action by the board, and they are not. There was no allegation that the board does not have rules relating to notice and hearing, and the court holds the statute authorizes the board to proceed according to its own rules, or in the absence of regularly adopted rules, to proceed according to such fair and reasonable methods as will accomplish the purpose of the statute, having due regard to the interest of the accused and to the interest of the public.
Paragraph VI of the petition alleged the board is threatening to and will proceed without giving plaintiff an opportunity to be heard. The allegation was contradicted by the notice served on plaintiff, a copy of which was attached to the petition, and in the absence of specification of some kind of deprivation of opportunity, the allegation gave the court no information on which it might grant an injunction.
Paragraph VII of the petition alleged the statute confers on the members of the board arbitrary and capricious power to revoke plaintiff’s license by methods other than those established for the administration of justice. The specification following the allegation was defect of power, and the horrific words added nothing to the strength of the petition.
Paragraph XI of the petition alleged there is no provision of law whereby the charges made in the complaint may be reexamined so that plaintiff would be permitted to present his defense, which is true. Due process does not require two or three examinations of the merits of charges, and plaintiff must present his defense to the board. The paragraph also alleged the statute confers no right of appeal to another tribunal or court in which truth of the charges may be reexamined, which is true. The courts are always open, not to reexamine merits, but to ascertain whether the accused had notice and opportunity to be heard, and whether the board acted fairly and honestly within the scope of its authority; and that satisfies the requirement of due process under the state and federal constitutions.
Other general allegations of the petition may be passed by because they are plainly in the nature of introductions and complemeñts to and deductions from allegations of specific shortcomings of the statute. The specific allegations are that the statute does not authorize the board to issue subpoenas for witnesses, or to enforce the attendance of witnesses, or to compel production of books, documents and records; and that there is no provision in the law for taking depositions to be used at the hearing. These allegations are true, and because the proceedings before the board are not ju dicial, the enumerated aids to judicial action may not be implied. Plaintiff's supposed plight, in view of the omissions from the statute, is described in the petition.
The injunction was properly denied because plaintiff’s petition did not name any witness residing in the United States, or any European savant, whom he desires to examine; did not state what testimony any witness would give relative to any charge contained in the complaint; and did not specify any book, document or record pertaining to the inquiry by the board which plaintiff wishes produced. We have here a complaint that, by virtue of a license obtained by fraud, the impostor holding it is fleecing the defective, the ailing, the gullible, and the chronic medicine takers who are moved by suggestion, and is scandalizing the medical profession and exposing it to contempt and ridicule. The board has power to conduct a hearing regarding this matter, and the court was not obliged to stay the hand of the board without some statement of what somebody would say tending to clear the license holder of the charges preferred against him. The judgment will-not be affirmed, however, on that ground. The court holds the statute does not violate either the constitution of the United States or the constitution of the state of Kansas.
Plaintiff’s contentions are based on certain fundamental postulates. One is that right to keep his license is a property right. What he has is a privilege of value to him, but there is no need to tarry over definitions. So far as this court knows, Doctor Brinkley may be a practitioner having the highest professional and ethical ideals. He may be a pioneer in advance of the medical and surgical science of his time. He may be a benefactor of mankind, and entitled to overflowing reward for his services. All the court has before it is the complaint of the board and the petition for injunction. No presumption of either guilt or innocence may be indulged. The complaint in effect states that in early days of Doctor Brinkley’s practice in this state he was a convicted bootlegger, and roamed from state to state for license to practice. The petition states that he has expended a quarter of a million dollars in establishing and equipping his hospital at Milford. It will be assumed his interest in keeping a license, by virtue of which he may continue his thriving business, is an important matter to him, and the court holds he cannot be deprived of his license without due process of law.
Another fundamental assumption of plaintiff is that the word “hearing” as used in the statute means “trial.” A trial is a judicial examination of issues, whether of law or fact, in an action (R. S. 60-2901), and an action is an ordinary proceeding in a court (R. S. 60-104). If the legislature had intended that a proceeding to revoke a physician’s license should take the form of a trial, presumably the statute would have so declared. The board is not a judicial tribunal, performs no judicial function, such boards never have been classed with judicial tribunals, and due process of law does not require a trial. The court disposed of this subject in the case of Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247.
Recognizing the conclusiveness of the decision in the Meffert case, plaintiff protests he does not claim the board is a court, and does not claim the board is clothed with judicial power; but after the disclaimer, plaintiff proceeds to argue the board is a cipher unless it has enumerated attributes of a judicial tribunal, and not only that, but the attributes of a judicial tribunal acting under the constitutional guaranty relating to prosecution for crime.
“In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of witnesses in his behalf, . . .” (Bill of Bights, Kansas Constitution, § 10.)
In the Meffert case it was expressly held a proceeding to revoke a physician’s license is not criminal in its nature, and the purpose is not punishment of the delinquent. The purpose is to protect and promote the public welfare by excluding from the profession those licensees who will not or cannot measure up to the prescribed standards of professional probity.
The board is an administrative body created under the police power of the state. A constitutional framework and a body of laws will not alone make government work; and in this country, as well as in England (see “The Task of Administrative Law,” by Felix Frankfurter, 75 U. of Pa. Law Review, 614 [1927]), the increasing complexity of modern life caused the law to develop along a path called administrative law:
“Despite our best federalist traditions, it is no longer possible to divide the provinces of the executive, judicial and legislative into separate water-tight compartments. With this change has come the abandonment of the age-old subjection of all questions to controlling decision by the judiciary, at least where there is need for speedy and flexible decision and where public interest may be regarded in a manner impossible between two parties tó a litigation. Thus administrative law has arisen.” (Administrative Standards, Jane Perry Clark, 44 Political Science Quarterly, 193.)
The history of due process is well sketched in Mott’s book “Due Process of Law” (1926). In chapter XIII, on “Notice and Hearing,” and chapter XIV, on “Due Process and Settled Usage,” the contest in this country between administrative law and “judiciocracy” from the days when due process required trial by jury to the present, is described, the decisions are cited, and the subject need not be treated here. The following quotation is pertinent:
“In the eighties, a far-reaching change came over the supreme court. . . . This changed attitude came just at the period when the activities of the federal government were undergoing their greatest expansion and when a tremendous economic revolution was taking place in the industrial life of the community. Free land had practically disappeared, the old frontier was gone, the industrial revolution had taken place, and pragmatic philosophy was just coming into its own. These and other influences were destined to work a change in the judicial history of America fully as significant as that wrought in its economic development. The court gradually spelled the death sentence of the old formalistic doctrines, and a broader, more potent viewpoint emerged. . . .
“The keynote of the new attitude as regards procedure was struck in the important case of Hurtado v. California, 110 U. S. 516 (1884).” (pp. 245, 246.)
The ruling in the Hurtado case was that due process under the fourteenth amendment to the constitution of the United States did not require prosecution by indictment by a grand jury in a murder case. The essence of the opinion by Justice Matthews was that the purpose of the constitutional requirement of due process was to exclude arbitrary and capricious governmental action; that due process does not require adherence to established forms and modes of attainment; and that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of legislative power in furtherance of the public good, is due process, if the fundamentals of liberty and justice are preserved. As indicating what those fundamentals are, Webster’s famous definition of “law of the land,” in his discussion of due process, was quoted:
“By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.” (Dartmouth College v. Woodward, 4 Wheaton, 518, 581.)
Over and over again the supreme court of the United States has declared that in administrative proceedings due process does not require particular form or method of procedure, but that its requirements are satisfied if the person affected by the proceeding has reasonable notice and reasonable opportunity to be heard and to present his defense, due regard being had to the nature of the'proceedings and the character of the rights which may be affected. A recent declaration to this effect may be found in the opinion of Mr, Justice Stone in the case of Hurwitz v. North, 271 U. S. 40 (1926), which involved due process of law in the revocation of a physician’s license under the law of Missouri.
In the opinion of the supreme court of the United States in the case of Brinkerhoff-Faris Trust & Savings Co. v. Hill, filed June 2, 1930, Mr. Justice Brandéis, speaking for the court, said:
“Our present concern is solely with the question whether the plaintiff has been accorded due process in the primary sense — whether it has had an opportunity to present its case and be heard in its support.”
With the exception of a sporadic case to be noted later, no court has ever declared that opportunity to present defense and be heard in its support requires the adjective element of compulsory process.
The history of testimonial compulsion, from the time when the jury were witnesses, and a witness in the modern sense was liable for maintenance, to the time when duty to give testimony became a duty to the state, enforceable by the judicial branch of the government, is traced in 5 Wigmore on Evidence, §§ 2190-2197. In this state power to enforce attendance of witnesses could not be conferred on the board of medical examination and registration, because it does not exercise judicial power. The legislature might have provided that depositions might be taken in the manner provided by the civil code, but following the example of the state of Ohio and other states, the legislature did not do so.
In the case of Jewell v. McCann, 95 Ohio St. 191 (1917), it was urged that “the following statute did not afford due process of law:
“Sec. 1275. The state medical board may refuse to grant a certificate to a person guilty of fraud in passing the examination, or at any time guilty of felony or gross immorality, or addicted to the liquor or drug habit to such a degree as to render him unfit to practice medicine or surgery. Upon notice and hearing, the board, by a vote of not less than five members, may revoke a certificate for like cause or causes.
“Sec. 1276. An appeal may be taken from the action of the state medical board refusing to grant, revoking or suspending a certificate, for the causes named in the preceding section, to the governor and attorney-general, whose decision affirming or overruling the action of the state board shall be final.” (p. 192.)
In a per curiam opinion the court said:
“The only authority possessed by the state medical board in the matter under consideration, at the time it attempted to take the action sought to be enjoined in this proceeding, was conferred by the sections above quoted. No provision whatever was made or then existed whereby the attendance of witnesses could be required or their testimony procured, nor was any procedure provided whereby the rights of the holders of such a certificate to engage in the practice of medicine could be protected and safeguarded. Although the statutes authorized the revocation of such certificate ‘upon notice and hearing,’ the board was not vested with any of the powers essential to the conduct of the trial or hearing. No process was authorized and no method or means for such hearing prescribed or provided, nor is an opportunity to be heard furnished by the provisions of section 1276 authorizing an appeal to an officer or officers in whom is vested no authority to subpoena witnesses, enforce attendance, compel the giving of testimony, or the production of necessary books, records and documentary evidence.
“The statutes in question did not provide the plaintiff in error due process of law, and are therefore invalid.” (p. 193.)
The effect of this opinion is not impaired by the fact that no member of the court stood responsible for its formulation. The decision of this court in the Meffert case was affirmed by the supreme court of the United States in a per curiam opinion. (Meffert v. Packer, 195 U. S. 625 [1904].) The distinction between the two opinions consists in the fact that the supreme court of the United States supported its decision by citation of decided cases:
“Hawker v. New York, 170 U. S. 189; Dent v. West Virginia, 129 U. S. 114; Reetz v. Michigan, 188 U. S. 505; Gray v. Connecticut, 159 U. S. 574; case below, 66 Kan. 710.” (p. 625.)
The supreme court of Ohio was not able to do this. The decision involved exercise of the highest judicial function known to constitutional government, refusal to execute a statute enacted by the legislature in the interest of the public welfare. The court ventured no reasons of its own for its action, for information of the litigants, or instruction'of the legislature, or enlightenment of the bench and bar of the country. The decision is authority for nothing but the fact that it was rendered, and this court declines to follow it.
In the case of Hurwitz v. North, 271 U. S. 40, the statute under consideration did not authorize the medical board to issue subposnas. It did authorize the taking of depositions of witnesses who did not voluntarily appear, before officers empowered to compel attendance and the giving of testimony. Depositions when taken might be read before the board. It was held the procedure gave ample opportunity to make defense. There was no intimation that omission of the provision relating to taking depositions with the incident of compulsory process would have impaired the law. In a comment on the decision, Dr. Ernest Freund, an eminent authority on due process, raised the question whether the decision might not confuse the law, because a decision sustaining a statute by reason of nonexistence of alleged defects, does not require the same consideration as if defects existed and the court were obliged to declare the effect on the statute. This court is of the opinion that if confusion results, it will not be because of the decision itself; but the following portions of the comment are pertinent here:
“A saving circumstance will, however, be found in the rule, so far as it is recognized, that a person cannot rely upon a constitutional defect by which he is not prejudiced. In a revocation proceeding it will be rare indeed that the person charged has to rely for his defense upon the testimony of unwilling witnesses; normally it is the testimony on behalf of the state that may stand in need of compulsory process, and if it doés, the case for the state will be apt to be weak. Except in cases of investigations, it is the opportunity to be heard and to hear the evidence on the other side, not the right to compulsory testimony, that counts in administrative proceedings.” (21 Ill. Law Review, 493 [1927].)
A person contending for American citizenship and all that American citizenship may mean, against a deportation order, is not deprived of due process of law because he may not have compulsory process for witnesses in his behalf. (Low Wah Suey v. Backus, 225 U. S. 460.) The private interest involved in exclusion of an undesirable from practice of medicine and surgery, is not so different in kind that opportunity to hear and to be heard must be supplemented by compulsory process.
In discussing proceedings for exclusion from practice of a pro-, fession, great emphasis is usually placed on the private interest rather than on the public interest, and much judicial sympathy has been expended because of the humiliation and shame a professional man must feel if his license be revoked. If charges of the kind contained in the complaint to the board should be established against one professing to.be a physician and surgeon, his emotions would probably be of the same refined quality as the emotions of a dance-hall keeper whose place is summarily closed because he was running it for assignation purposes, or the emotions of one against whom the postmaster general issues a fraud order on evidence satisfactory to himself of misuse of the mail service.
The statute under consideration is a public welfare statute. It was made for action, and not merely to furnish grist for the judicial mill. While a full and fair hearing is mandatory, the character of hearing is not measured by standards of judicial procedure, and the licensee may present the testimony of his voluntary witnesses, so far as he desires to do so, by affidavit made before and duly authenticated by any officer authorized to take depositions. The requirement of hearing makes it incumbent on the board to receive such testimony and givé it the same consideration it would have if taken by deposition without appearance of the adverse party. In the case of Robertson v. Heath, 132 Ga. 310, the court had under consideration the admission of affidavits, ex necessitate, in a habeas corpus proceeding. In the opinion by Lumpkin, J., it was said:
“It may be that a witness is beyond seas, or inaccessible, or for other reason cannot be put upon the stand. The writ is a speedy writ. The proceeding is summary in its nature. It is a judicial proceeding, and to be conducted in an orderly manner as such. But it is not exactly a lawsuit in the ordinary sense of the term. [Citation.] To delay its hearing until a witness absent from the state or the country can return, or until interrogatories can be prepared, notice given, cross-questions propounded in writing, and commission forwarded to a distant state or country and there formally executed, might require so much time that the hearing under the writ would be unreasonably delayed. It may be necessary to admit an affidavit, or, in default of it, to exclude much needed light altogether. Or there may be other circumstances rendering the use of affidavits proper.” (p. 313.)
The court is of the opinion the statute is not rendered nugatory by the fact that the legislature did not provide compulsory process for the factitious case in which successful defense might depend on testimony of unwilling, hostile and prejudiced witnesses not produced by the complainant for cross-examination at the hearing.
It may be necessary for the board to receive affidavits in support of the complaint. Witnesses should be produced for cross-examination if it be practicable to do so, but if it should become necessary to resort to affidavits, due process requires that the licensee should be afforded opportunity to inspect them and to procure counter testimony. If affidavits should be used in support of the complaint, reason for nonattendance of the witnesses should appear, so that in case of judicial review the fairness of the proceeding may be disclosed by the board’s record.
The court is of the opinion that when the statute is interpreted in the manner indicated, it does not deprive a licensee against whom complaint is made of due process of law, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to quiet title to the east half of a vacated avenue which lies between the lots of plaintiff and de fendant, the plaintiff claiming the reversion of the entire avenue when vacated and the defendant claiming the east half, which is adjacent to her lot. The trial court decided in favor of the defendant, dividing the avenue equally between plaintiff and defendant, and plaintiff appeals.
The agreed statement of facts on which the case was tried was, in substance, as follows: In 1885 one Louisa Olive owned a tract of land which she platted and named Olive’s addition to Dodge City, the east thirty feet of which tract she dedicated as a street named Hardesty avenue. The east lot in her addition was lot 2 in block 20, and is owned by appellant. In the year,1916 a tract of land lying immediately east of Hardesty avenue was platted and named Hardesty addition, and the west line of Hardesty addition was and is the east line of said Hardesty avenue. The land platted into Hardesty addition was not owned by Louisa Olive. Appellee is the owner of the west lot in Hardesty addition, being lot 7 in block 1, and this lot is immediately east of and adjacent to Hardesty avenue, and directly opposite lot 2, block 20, Olive addition, owned by appellant. In 1921 Hardesty avenue was vacated.
The appellant claims the reversion of the entire avenue because it was owned and dedicated by his grantor, and the appellee claims each abutting owner is entitled to one-half of it when vacated because it was not taken from the appellant’s lot any more than from appellee’s lot, not being taken from either.
The controversy involved must be determined by the construction of a proviso in R. S. 14-423, which is as follows:
“And provided further, That whenever any street, avenue, alley or lane shall be vacated, the same shall revert to the owners of real estate thereto adjacent on each side, in proportion to the frontage of such real estate, except in eases where such street, avenue, alley or lane shall have been taken and appropriated to public use in a different proportion, in which case it shall revert to adjacent lots of real estate in proportion as it was taken from them.”
The question is, Does the original ownership and dedication of the land used for the avenue bring the case within the exception stated in the statute, where it is to revert in proportion to what was taken from each, instead of the usual division of one-half to each?
It is urged by appellee that the land for this avenue was never “taken” in the commonly accepted use of that word, but that it was dedicated or donated by Mrs. Olive to public use when she filed her plat in 1885; that it was a part of the entire tract of land embraced in the plat and was not “taken” from the lots adjacent thereto in her .plat; that the lots could be as well said to be “taken” from the .avenue as vice versa, and that the size of appellant’s lot was not diminished by reason of this thirty-foot strip on the east edge of her land being designated as an avenue. In this connection it must be observed that the land on the east side of the avenue never belonged to Mrs. Olive, nor to the appellant herein.
The undoubted primary conception of “taking” is to seize, capture, lay hold of or secure, but it is susceptible of a wider range of meaning not limited to being obtained by force or superior power as to choose, accept or assume. (Webster’s Dictionary.)
This question, under a somewhat similar state of facts, was twice before this court in the case of Showalter v. S. K. Rly. Co., which is reported in 49 Kan. 421, 32 Pac. 42, and Railway Co. v. Showalter, 57 Kan. 681, 47 Pac. 831. In the first case a very restricted meaning was given by a divided court to the word “taken,” limiting it in effect to a taking by eminent domain. On the second hearing the court declined to .adhere to so limited and specific a definition when it said, on page 683:
“The view that there can be an unequal division of the vacated street only when it has been taken by the exercise of the right of eminent domain is vigorously combated by counsel, and if this case turned on the correctness of this expression in the former opinion, it may be that we should find great difficulty in adhering to that position.”
In the same paragraph the court on the second hearing continued by comparing the reasonable rights of reversion authorized by our statute after an appropriation to public use by voluntary dedication with those where the taking was by the process of eminent domain, as follows:
“For it is very difficult to understand why an owner who has voluntarily dedicated a part of a lot to public use should not be as well entitled to a reversion of it, when the public use is renounced, as one who has been forced to yield a similar part of his property by the exercise of the right of eminent domain, and the payment to him of damages therefor.” (p. 683.)
We think this is a conservative, safe and reasonable construction of the statute under consideration and that a voluntary dedication of an avenue is such a taking of the land used for that purpose as to bring it within the exception of the statute whereby it must revert in the proportion in which it was taken, or appropriated.
But it is .urged by appellee that on the second hearing of the Showalter case, swpra, it was decided that the street should revert one-half to the abutting lot owner on each side thereof, and the final result should control in this case rather than the comment on the earlier decision. But the court after this comment and definition stated that such was not the pivotal question in that case, and held that as the street was platted by the probate judge on government land the title to the land used for the street had passed directly from the government to the county and that neither the plaintiff in that case nor his grantors ever owned the land used for the street, and consequently it was not taken and could not in any sense of the word have been taken from him or them, nor from his or their adjacent lots.
The situation in this case is very different.. The land used for this avenue was owned by Mrs. Olive when she dedicated it to public use. In the Showalter case the street prior to its vacation had no owner except the government and the county. Showalter stood no closer to them than did the owner of the lot on the opposite side of the street.
Something is said in the briefs about the county having only an easement in the avenue, but there can be no question about the fee to the avenue being in the county. That feature was considered in the first Showalter case, supra (p. 432), and has been so held in numerous other decisions of this state.
We conclude that the appellant owner of the adjacent lot on the west, and whose grantor originally owned and voluntarily dedicated the entire avenue, comes within the exception noted in R. S. 14-423, and is entitled, when the avenue is vacated, to a reversion of the entire width thereof.
This conclusion is in harmony with the common-law rule, which is still in force in this state except as modified by constitutional and statutory law (R. S. 77-109). That rule is the returning of land to the donor or grantor after the particular use or estate is ended. This has been generally held to have applied to dedicated streets when vacated.
“As a rule where land is dedicated to á public use it reverts to the dedicator when the intended use becomes 'impossible or is abandoned.” (23 R. C. L. 1101. See Tousley v. Galena M. &.S. Co., 24 Kan. 328; Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 237 Pac. 913.)
The judgment is reversed and the cause remanded with instructions to render judgment for appellant, quieting his title to the east half of the avenue in question.
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The opinion of the court was delivered by
Burch, J.:
The action was one by the son and heir of Frank Rost against his brother and sisters, as coheirs, to partition real estate, a subject concerning which there was no dispute. A second cause of action sought to charge three of the coheirs with sums of money received from their father, to be deducted from their interests in the real estate. These heirs, as a counterirritant, sought to charge plaintiff, and his brother who sided with plaintiff, with advancements to them. One of the heirs who had received nothing championed both groups. The court left all parties in the situation in which it found them, and they all appeal.
Frank Rost died intestate on January 5, 1926, leaving real and personal property. His heirs were his children, Joseph H. Rost, the plaintiff, and the defendants, Frank W. Rost; Elizabeth Heyka, Mary Kerstine, Rosa Rizek and Anna Tarkowske. Previous to 1922 Frank Rost deeded real estate to each of his sons. In December, 1922, Frank Rost suffered a brain hemorrhage, causing partial paralysis. In March, 1923, he had another stroke, but he continued to look after his affairs until in December, 1925, when the illness occurred which shortly resulted in his death. After the first stroke, he gave $1,000 to each of his daughters, Elizabeth, Mary and Rosa. There was evidence he said he would give Anna $1,000, but she would have to ask for it, which she did not do. While, as indicated, the defendant Frank Rost is aligned with plaintiff, and Anna Tarkowske is aligned partly with plaintiff, the terms plaintiff and defendants may be used for convenience to designate the opposing parties.
The principal issues are indicated and were determined by findings of fact which, as corrected by the district court, read as follows:
“That Frank Rost, Sr., was not insane or feebleminded, but was mentally capable of transacting his business up to the time of his death, and did do so; that he knew his children and their claims upon him and his claims upon them, and knew the amount, value and location of his property; that he had no insane delusions, but on the contrary had remarkably clear conception of his children’s conduct, feelings and actions toward him; that the defendants Elizabeth Heyka, Mary Kerstine and Rosa Rizek, and their respective husbands, did not enter into a conspiracy for any purpose whatever, as charged by plaintiff and defendants Frank W. Rost and Anna Tarkowske; that the farms deeded to the sons and the money and personal property given to each daughter on the occasion of their marriage, was a gift, was of comparatively equal value, and should not be charged against any of the parties as an advancement; that the $435 loaned to plaintiff at the time of his business ventures in Missouri and Nebraska was repaid, and there is nothing due from him thereon; that the payment of $1,000 each to Elizabeth Heyka, Mary Kerstine and Rosa Rizek was .a gift to them, and should not be charged as an advancement; that the payment of $1,000 to Frank Heyka was not intended as a gift to Elizabeth Heyka; that all moneys or property received by any of the defendants from Frank Rost, Sr., during his lifetime was duly accounted for, and that there is nothing due to the estate of Frank Rost, Sr., from any of them, and that all money and property in the possession of Frank Rost, Sr., at the time of his death was duly accounted for; that the $6,000 of gold which was buried in the chicken house was unlawfully and illegally taken by all the children, but was divided equally between them, and there is nothing due at this time from any of them on that account.”
Physicians who treated Rost in his lifetime, called as witnesses by plaintiff, were not permitted to give professional opinions regarding Rost’s mental condition and.capacity to transact business. The evidence was rejected pursuant to the statute, which reads as follows:
“The following persons shall be incompetent to testify:
“Sixth. A physician or surgeon concerning any communication made to him by his patient with reference to any physical or supposed physical disease, defect, or injury, or the time, manner or circumstances under which the ailment was incurred, or concerning any knowledge obtained by a personal examination of any such patient, without the consent of the patient.” (R. S. 60-2805.)
The contention is defendants waived their privilege, as heirs, to insist on the privilege their father would have had if living. The supposed waiver resulted from the taking of Doctor Mullikin’s deposition. The deposition was admitted by the court for the single purpose of determining the question of waiver, and. after examining the deposition the court announced it did not waive the privilege at all.
When Rost was stricken in December, 1922, Doctor Mullikin was called into consultation with Doctor Thomas; who was in charge of the case. About a year later, Rost called at Doctor Mullikin’s office to pay his doctor bill. On that occasion Doctor Mullikin did not talk to Rost in any relation of physician and patient, and the doctor testified that from his observation, made at the time, Rost was perfectly capable of transacting business. As a means of introducing the incident, Doctor Mullikin was asked what Rost seemed to be suffering from when he was called in consultation. The answer was that Rost seemed to be suffering from a stroke of paralysis, a fact which nobody disputed, and which was not an issue in the case. Plaintiff then cross7examined Doctor Mullikin fully with respect to the disaster to mental faculties wrought by hemorrhage of the brain resulting in paralysis. To that extent the deposition was one taken by plaintiff. .On redirect examination Doctor Mullikin said that a stroke of paralysis is not conclusive that mental faculties are impaired, and said that after talking with Rost in his office, the doctor could not say whether the stroke had affected Rost’smental faculties. Neither statement transgressed the statute, and the district court was correct in holding there had been no waiver.
.Plaintiff contends he is the person who could insist on the privilege or waive it, because defendants were not claiming as heirs, but as donees of their father. The contention is unsound. Plaintiff brought his sisters into court to cut down their shares in the land to be partitioned, and they were defending their inheritance from their father.
Besides what has been said it is highly probable that, in view of the evidence of business actually transacted, intelligently and competently, which justified the court’s findings, doctors, might have given expert opinions that Rost was totally demented and incapable of transacting business until the lowing herd came winding o’er the lea, without changing the court’s mind.
At the hearing on the motion for new trial the affidavit of Anna Tarkowske was presented, stating what she said she would have testified to had the court permitted. The trouble with the affidavit was that she did testify in substance to all the material things presented by the affidavit. She testified that Heyka sat by Rost and told Rost his boys were going to bring a man and take his money; that Mary Kerstine told her father that Joe Rost wanted to take his money and was going to take his money; that Heyka and Mrs. Heyka talked to Rost about some one trying to take his money; that Rost.at these times became excited, angry, and mad, and that he spoke of Joe Rost as a thief. Affiant also testified at the trial that Joe Rost wanted to borrow money from his father, that Mary Kerstine made a fuss about it, and that Heyka said he would borrow the money. There is nothing else of importance in the affidavit, and there was no occasion for filing it. This family feud was fully investigated, and other assignments of error relating to rulings on evidence would not be sufficient to require a new trial, if well founded.
Topics in plaintiff’s brief — the gifts were void, presumptively money received was an advancement, accounting, conspiracy, and insane delusions — are argued as though this court were trying the case. It is a typical fact case. The findings of fact were sustained by abundant evidence, and there is no merit in either appeal.
The judgment of the district court is affirmed.
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HOWARD, Presiding Judge.
This is an appeal from a judgment of the Circuit Court of Cole County, affirming an order of the Public Service Commission of Missouri, permitting transfer of certain authority to operate as a common carrier by motor vehicle from Edwin G. Mueller, doing business as Bernskoetter Moving & Storage, to John F. Oliver. The application was filed in the Public Service Commission by Edwin G. Mueller, as transferor and John F. Oliver, as transferee, jointly,, seeking a transfer without hearing. Transport Delivery Company, Kaw Transport Company, Curtis Transport, Inc., John Groner Motor Carrier, Inc. and John Rathouz, d/b/a John’s Construction Company protested the transfer before the Public Service Commission. They filed petitions for leave to intervene and to have the application set for hearing, or, in the alternative, for oral argument on the question of the necessity and desirability of a hearing. This latter motion was heard on oral argument and the Commission ordered a hearing on the application for transfer to. determine whether ' or not such transfer would be “consistent with the public interest.”
This controversy concerns the applicability of the provisions of Section 390.111. (All references are to RSMo 1959 and V.A.M.S., unless otherwise specified.) Said section reads as follows:
“In the event a motor carrier, to which a certificate or permit shall have been issued under the provisions of sections 390.011 to 390.176, shall sell, transfer,, or assign the business, rights or assets of such motor carrier, or any part thereof, and such motor carrier and the purchaser thereof shall make proper application to the commission in writing, containing-such information as shall be prescribed by the commission by general order with respect to the transfer of certificates or permits, the commission shall transfer such original certificate or permit issued to such motor carrier, or the part so. sold to such purchaser, if the commission shall determine that the purchaser is in all respects qualified under the provisions, of sections 390.011 to 390.176 to conduct the business of a motor carrier within the-meaning of sections 390.011 to 390.176,, and upon the transfer of such certificate or permit it shall be effective in like manner as though originally issued to such purchaser; provided, however, the- commission shall not be required to transfer from a certificate authorizing the transportation of general commodities or freight, any portion of such certificate authorizing the transportation of a part of such general commodities or freight over the same route or within the same territory, unless the commission shall further determine, after hearing upon due notice, that such transfer is consistent with the public interest.” (Emphasis supplied.)
By the application Mueller sought to transfer to Oliver “the business, goodwill and all of that intrastate portion of Certificate No. T-S8, held by Transferor, except household goods as defined by the Commission, which reads as follows, * *.
“COMMON CARRIER, INTRASTATE IRREGULAR
“Intrastate Irregular: In the transportation of general commodities between Jefferson City and contiguous trade territory and from this territory to any point in Missouri and from any point in Missouri to Jefferson City and contiguous trade territory, subject to the restriction that no service is to be rendered between points on the regular route of an authorized motor carrier.” (Emphasis supplied.)
Mueller also held specialized authority for household goods as follows:
“Intrastate Irregular: In the transportation of uncrated household goods as a specialized service over irregular routes to, from and between all points in the State of Missouri, irrespective of whether such points may be located on the regular route of another motor carrier.”
He also held an interstate permit, which is not involved in any way in this proceeding.
The order for hearing on this transfer set out the history of Mueller’s authority; pointed out that when a carrier acquired different pieces of authority, at different times, that any overlapping in such grants merged with each other, so that the carrier only had one authority to perform one transportation service. It also pointed out that the general commodity authority held by Mueller was broad enough to cover the specialized service of transportation of un-crated household goods within the territorial scope of such general commodity authority. The Commission then held that “such a transfer would involve the transfer of a portion of a certificate authorizing the transportation of general commodities within the terms of Section 390.111.”
At the hearing held pursuant to this order, John F. Oliver introduced evidence, including his own testimony, of his fitness to operate as a common carrier under the proposed transfer of authority. He testified that if the transfer were approved, he would haul anything and everything which he was authorized to haul by such authority, if he were called upon to do so. No evidence was offered by applicants touching upon the question of whether or not this transfer would be “consistent with the public interest,” it being applicants’ contention that on a showing of fitness they were entitled, as a matter of law, to have such transfer approved. Mr. Mueller did not appear or testify.
Mr. Groner and Mr. Minshall appeared as witnesses for protestants John Groner Motor Carrier, Inc. and Transport Delivery Company, respectively. They testified that their companies hauled petroleum products (principally gasoline) from the Phillips Pipeline Terminal in Jefferson City and from various other terminals in central Missouri. They testified that, although they were familiar with the carriers who hauled from the various pipeline terminals, they had never seen nor known of Mr. Mueller hauling petroleum products from any such terminal. They testified that when Mr. Oliver acquired authority permitting him to haul petroleum products from the terminal near Mexico, Missouri, that he took business away from both Groner and Transport Delivery. They further testified that although their gross in come had increased in the years 1961, 1962 and 1963, that business had fallen off in 1964, and that while they had purchased additional equipment in the past few years, they had equipment standing idle at the time of the hearing. Their interest was solely in the transportation of petroleum products.
Mr. Rathouz was the only other witness at the hearing. He held specialized heavy hauling authority to and from an area surrounding Jefferson City on the one hand and all points in the State of Missouri on the other hand. He testified that he owned one tractor and two trailers and that he did not have enough heavy hauling business to keep these vehicles operating all the time, and that another carrier authorized to render such service would be detrimental to him.
On May 24, 1965, the Commission entered its report and order denying the transfer. Two commissioners dissented. Appellants filed motion for reconsideration and rehearing and this motion was orally argued before the Commission en banc on August 20, 1965, and the motion for rehearing was taken with the case.
On September 24, 1965, the report and order of May 24, 1965, was set aside and a new report and order entered approving the proposed transfer and transferring the authority from Mueller to Oliver. Two commissioners dissented from this order. It appears that between the two orders the chairman of the Commission retired and a new chairman was appointed. The two commissioners who had dissented from the order of May 24, 1965, were joined by the new chairman, resulting in the change of decision.
Protestants Transport Delivery Company, Curtis Transport, Inc. and John Groner Motor Carrier, Inc., duly appealed to the Circuit Court of Cole County, where the order of the Commission was affirmed. These protestants have duly appealed to this court.
When this case was argued before this court, the attorneys for applicants orally and for the first time raised the contention that this appeal should be dismissed because the appellants had not filed a cost bond within ten days of the rendition of the judgment in the Circuit Court, as required by Section 386.540, paragraph 2. Pursuant to leave granted, at the time of argument, written motion to dismiss on this ground was filed. The appellants responded to such motion showing that the failure to file the bond was a matter of pure oversight and inadvertence and that such failure had been cured and a proper bond filed. By affidavit it is shown that the Public Service Commission has no objection to this late filing. Under the circumstances here presented, it appears that the provisions of this statute are directory and not mandatory and, since the late filing of the bond has caused no harm or hardship on anyone, and since the Public Service Commission, for whose protection the bond is required, has no objection, we decline to dismiss the appeal, but conclude to consider this matter on the merits.
On this appeal appellants contend that the order of the Commission, as affirmed by the Circuit Court, is unlawful and unreasonable because it was not supported by pompetent and substantial evidence on the whole record and there was no evidence to support the conclusion of the Commission that the transfer “would be consistent with the public interest” as required by the proviso in Section 390.111.
This proviso was added to the statute after the decision of this court in State ex rel. Springfield Warehouse and Transfer Company v. Public Service Commission, 240 Mo.App. 1147, 225 S.W.2d 792, wherein it was held that the Commission was required as a matter of law to approve a transfer upon finding that the transferee was qualified to perform the services under such transferred authority. See also State ex rel. Gehrs v. Public Service Commission, 232 Mo.App. 1018, 114 S.W.2d 161. This proviso takes away the right to transfer a portion of a certificate authorizing the transportation of general commodities, as a matter of law. It does not require the Commission to hold a hearing on the transfer but on the other hand it does not require the Commission to permit the transfer on a showing only that the transferee is qualified. It authorizes the Commission, in its discretion, to hold a hearing on the question of whether or not the proposed transfer “is consistent with the public interest” and the statute requires the Commission to permit the transfer only where it finds that the transfer will be “consistent with the public interest.” The Commission, by its order of January 6, 1965, exercised its discretion and determined that there should be a hearing on the question of whether or not the proposed transfer was “consistent with the public interest.” This order remains undisturbed and under it the Commission may only permit the transfer if it makes such finding and before it can make such finding, there must be evidence before it to support that finding. See State ex rel. City of West Plains v. Public Service Commission, Mo.Sup., 310 S.W.2d 925; Videon Corp. v. Burton, Mo.App., 369 S.W.2d 264.
On appeal from the order of the Public Service Commission, the appellant has the burden of showing that the decision of the Commission is unreasonable, unlawful, arbitrary and capricious. See State ex rel. City of St. Louis v. Public Service Commission, 335 Mo. 448, 73 S.W.2d 393; State ex rel. Byers Transfer Company v. Missouri Public Service Commission, Mo.App., 246 S.W.2d 825, and State ex rel. Potashnick Truck Service Inc. v. Public Service Commission, Mo.App., 129 S.W.2d 69. In the case at bar, the appellants have sustained this burden by filing the transcript of the evidence heard by the Commission. As has been heretofore pointed out, the applicants specifically and consciously refrained from introducing any evidence on this point. The three witnesses, who appeared and testified in addition to the proposed transferee, represented carriers interested only in the special service of transporting petroleum products, and in the special service of heavy hauling. As is pointed out by the applicants in their brief “much more is involved in this case than just the transfer of authority to haul petroleum.” Likewise, much more is involved than just the transfer of authority to perform heavy hauling services. General commodity authority embraces anything and everything that can be transported by truck and under such authority a carrier, if he files the appropriate rates and has the necessary equipment, can haul anything he can find to haul, including all types of specialized hauling, which may, at the same time, be the subject of individual specialized authority granted to other carriers. See re Bernskoetter Moving & Storage Co., 6 Mo. PSC (N.S.) 117 and State ex rel. Transport Delivery Co. v. Public Service Commission, Mo.App., 382 S.W.2d 823. Thus, since the only testimony which would possibly bear on the question of whether or not the proposed transfer was “consistent with the public interest” concerned only specialized hauling in the fields of petroleum products and heavy hauling, it is apparent that there was no evidence concerning the matter of whether or not this transfer “was consistent with the public interest” as to the many and varied other types of transportation authorized by the authority proposed to be transferred.
In the order approving this transfer entered by the Commission under date of September 24, 1965, the Commission relied heavily upon the fact that there was no evidence that the transfer would be detrimental to the public interest. This statement, while true, does not result from a consideration of substantial evidence on the matter, but rather results from the entire lack of evidence. There is no burden on the Commission to adduce evidence on this question, and there is no burden on other carriers in the area covered by the authority to be transferred, to come in and show that the transfer will be against public interest. On the contrary, the burden is on the applicant to show affirmatively that the transfer will be in the public interest. The absence of evidence and the absence of protest by other carriers in the field can not be converted into affirmative evidence on this question. See State ex rel. Byers Transportation Co. v. Public Service Commission, Mo.App., 246 S.W.2d 825, and State ex rel. Potash-nick Truck Service, Inc. v. Public Service Commission, Mo.App., 129 S.W.2d 69. We recognize that both of these cases involve a question of public convenience and necessity justifying the granting of a certificate and we further recognize that the quantum of proof required on the question of whether or not a transfer is “consistent with the public interest” is much less than the quantum of proof required on an application for the original issuance of a certificate of public convenience and necessity. However, we believe that the principles set forth in these cases are applicable here and they do not permit the conversion of an absolute lack of any evidence into affirmative evidence of the point to be proved.
In other words, in the hearing before the Commission the burden was on the applicants to show that the proposed transfer would be “consistent with the public interest” and this they have entirely failed and refused to do. Therefore, we can only conclude that the order of the Commission entered September 24, 1965, approving this transfer is unreasonable and void because it is not supported by any evidence, let alone competent and substantial evidence. The order of the Commission purports to find evidence on the whole record that the proposed transfer is “consistent with the public interest” from the testimony of the three witnesses for the protestants on cross-examination which is summarized as follows: “Under the evidence herein,' we do not believe that the ability of the competing carriers to render adequate, efficient service to the public would be detrimentally affected, or that the proposed transfer would result in detriment to the interests of the protestants. To the contrary, the protestants have admitted that even after the transferee engaged in competition with them elsewhere, as a result of another case, they have purchased additional equipment, and have enjoyed increased total revenues, and that there is 4% to 5% annual rate of increase in the volume of gasoline produced nationally.” It will be noted that this summary refers only to the transportation of petroleum products. We agree that evidence coming into the case on cross-examination of protestants’ witnesses could be sufficient to carry applicants’ burden, but in this case the evidence before us is entirely insufficient.
This evidence, together with the evidence concerning heavy hauling, covers only one very small segment of the broad authority proposed to be transferred. On the question of whether or not the transfer of the remainder of this general commodity authority would be “consistent with the public interest”, there is a complete absence of evidence, and, therefore, no basis on the record for the Commission to find either that the proposed transfer is or is not “consistent with the public interest.”
What we have said disposes of the point raised by appellants and requires the reversal of the judgment below. However, the applicants in their brief strenuously contend, as they have contended throughout this proceeding, that they are entitled to this transfer as a matter of law, under the provisions of this statute, because it does not constitute a splitting of the general commodity authority. Since this proceeding must go back to the Commission, we believe that we should comment thereon.
In its order approving the transfer the Commission specifically declined to pass upon this issue because it found that such issue was moot after it held that in any event the transfer was consistent with the public interest, whether or not the transfer would result in a splitting of the authority.
In opposition to applicants’ contention the appellant protestants argue that the doctrine of merger, as previously applied by this Commission, applies in this case; that the transferor Mueller has only one certificate of authority, which includes all of the transportation that he is authorized to perform ; that this authority includes the right to transport general commodities, and that the transfer of the authority to haul general commodities, leaving in Mueller only the authority to haul household goods, constitutes a splitting of this authority, and comes specifically within the wording of the proviso of Section 390.111. On the other hand, applicants contend that Mueller wants to separate two distinct pieces of authority. One is the irregular route authority to haul general commodities and the other is the authority to haul household goods. Applicants contend that these two authorities were acquired at different times by different and separate actions of the Commission and that they remain different and separate entities. Applicants specifically deny the authority of the Commission to apply its doctrine of merger because the same is not specifically authorized by statute. In this case we are not required to pass upon the legality of this doctrine of merger. If the doctrine is applied, and we hold that all certificates of authority issued to Mueller and his predecessors are merged into one authority, then clearly, this authority authorizes the transportation of general commodities and this application is for the transfer of part of that authority and comes strictly and literally within the provisions of the proviso of Section 390.111.
If, on the other hand, we adopt the argument of applicants then we are dealing with the transfer of the general commodity authority and do not need to consider the second paragraph of the authority wherein the special household goods authority is described. However, we must remember, as is pointed out in re Bernskoetter Moving & Storage Co., 6 Mo. PSC (N.S.) 117 and State ex rel. Transport Delivery Company v. Public Service Commission, Mo.App., 382 S.W.2d 823, that this general commodity authority includes authority to perform the special service of hauling household goods. This portion of this general commodity authority is to be retained by Mueller. The application specifically provides for such retention and specifically provides against the transfer of authority to haul household goods to Oliver. The Commission’s order of September 24, 1965, shows that there was such a splitting. Paragraph “Ordered 2:” transfers to Oliver authority: “in the transportation of general commodities, except uncrated household goods, between Jefferson City. * * ” (Emphasis supplied.)
The Commission by this order has not transferred all of the general commodity authority held by Mueller. It has split off that portion of the general commodity authority authorizing the transportation of household goods, and this order specifically authorizes its retention by Mueller and it is not transferred to Oliver.
Thus, regardless of which argument is accepted, this application for transfer does specifically and literally come within the proviso of Section 390.111 and the Commission is required to proceed thereunder.
For the reasons heretofore noted, the judgment of the trial court affirming the order of the Public Service Commission is hereby reversed and the cause is remanded to the Circuit Court of Cole County, with directions to remand this action to the Public Service Commission for further proceedings.
All concur.
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The opinion of the court was delivered by
Valentine, J.:
This was an action by one partner (A. L. Anderson) against two others (N. B. Lord and C. C. Smith) for a final accounting and settlement of the copartnership affairs. After the commencement of the action Anderson released Smith from all liability to him growing out of the partnership matters, and then prosecuted the action against Lord alone. There had been a settlement by the parties up to a certain time, and this action was to enforce that settlement, and for a further and final settlement of the copartnership affairs. The only assignment of error in this court is, that “the district court overruled the motion for a new trial made by the plaintiff in error,” defendant below. The motion for a new trial reads as follows:
“And now comes the defendant, and moves the court for a new trial for the reasons, 1st, The judgment is not sustained by the evidence; 2d, The decision of the court is against the evidence; 3d, The judgment of the court was rendered and entered for a larger amount than was due the plaintiff.”
This motion was overruled, and the defendant below excepted; and this was the only exception taken to any ruling of the court below. The judgment of the court below was in favor of the plaintiff and against the defendant Lord for $826.50 principal sum, and $175 as interest; total $1,001.50. The findings of the court below were as follows:
The assets of the company was the Ottawa lot, taken by Lord at,..$4,500 00 Cash turned over to Smith by Anderson,................................. 200 00
Anderson advanced for company purposes, $4,700 00 , 2,571 50
Leaving net profits, .$2,128 50
One-third of the profits,...................................................... $709 50 Add to this, Anderson’s advancement,................................... 2,571 50
Anderson should receive,............................................$3,281 00 Deduct what Anderson received ftom Lord,............................. 2,000 00
$1,281 00 Deduct what Anderson received from Smith per Richmond,....... 100 00
$1,181 00 From this deduct one-half of balance due on advancement, because of release of Smith,.............................................. 254 50
Balance due Anderson,.............................................. $826 50
For which sum, with interest on $557.50 from October 3d 1870, and on $275 from May 24th 1873, making a total of $1,001.50, judgment should be entered in favor of Anderson and against Lord.
The evidence upon which these findings were made was conflicting and contradictory. But there was sufficient evidence to sustain every material finding of fact made by the court. We cannot, as we have many times decided, weigh the conflicting and contradictory evidence in a case, and determine on which side the preponderance lies. All that we can do .is, to see whether the findings of the court are sustained by sufficient evidence without taking into consideration nny of the contradictory or adverse evidence. Some of the foregoing findings however are not findings of fact from the evidence, but are merely conclusions from the other findings, or conclusions of law. These findings, or rather conclusions, if we should find them erroneous, we can correct from the other findings, and from the admitted facts. The partnership-firm consisted of Anderson, Lord, and Smith. Anderson furnished all the capital, and all were to share equally in the profits. The court below finds that Anderson furnished $2,571.50. The evidence would have sustained a finding for a greater amount. The court also finds that the profits of the partnership were $2,128.50, making the total assets of the company $4,700. Of this amount Anderson should have received back his original capital, to-wit, $2,571.50, and one-third of the profits, to-wit, $709.50; total $3,281; and each of the other partners should have received one-third of the profits, that is, $709.50 each, or $1,419 in the aggregate. Now Anderson in fact received only $2,000 in available funds, and therefore should have received $1,281 more. While his two partners received in available assets $2,700, or $1,281 more than they were entitled to receive. They in fact received all the available assets of the company, which were $4,700, and then paid back to Anderson $2,000. They received this jointly. They acted together in the partial settlement by which this was done, as one person. Now, as Lord and Smith received $1,281 more than they were entitled to, and Anderson $1,281 less, it would seem that in a suit by Anderson against them he should recover that amount from them. But after this suit was commenced Anderson received from Smith $100, and discharged Smith from all further liability. This certainly ought to discharge one-half of the joint, or joint and several, or several liability of Lord and Smith. (Gen. Stat. 183, § 5; id., pp. 605, 606.) As Lord and Smith were liable in the aggregate to Anderson for $1,281, this compromise and settlement with Smith should have left Lord liable for only one-half of $1,281, or $640.50. On account of said compromise the court below did deduct $454.50 from said $1,281, leaving as the amount found due from Lord to Anderson, and for which, with interest, the court below rendered judgment for $826.50. One hundred dollars of said amount deducted, the court below says, is “what Anderson received from Smith per Richmond.” And $254.50 of said amount, the court says, is “half of the balance due on advancement, because of release of Smith.” Said $254.50 does not however seem to be one-half of any sum mentioned in the case. It, with the $100, paid by Smith, would however come within 25 cents of being one-half the share of the profits of each partner. The 'other hundred dollars deducted was probably deducted through a mistake in deducting $254.50 from $1,181, and calling the remainder $826.50. We think the court below decided correctly in determining that something more than the $100 paid by Smith to Anderson should be deducted on account of the discharge of Smith; but we think the court was mistaken in the rule it adopted to determine just how much should be deducted. ' We think that when Smith was discharged, just one-half of the amount due from Lord and Smith should have been deducted. The uncontradicted evidence in the case shows, that Smith got his full share of the amount in value that went to Lord and Smith. That matter was arranged satisfactorily between Lord and Smith. We cannot say that the court below erred in determining that the amount due Anderson drew interest, and in fixing the time when the same commenced to draw interest. ■ We have not scrutinized the question however very closely, as no pos sible error of the court in this respect could make much difference in the amount of the judgment that should be rendered. Anderson testifies that on October 3d 1870, he had already advanced $2,379.34 for the company. Lord at that time paid him $2,000 of the amount, and, as Anderson testifies, “said he would send balance of $379 to me [Anderson] next day.” This $379 was evidently then due. There may have been other “unreasonable and vexatious delays of payment or settlement of accounts.” (Gen. Stat. 525, ch. 51, § 2.) "We cannot even tell from the record brought to this court when this present action was commenced. And of course, it devolves upon the plaintiff in error to show error. It is now difficult for us to determine from the findings of the court below what amount should draw interest from October 3d 1870, and what amount from May 24th 1873, as we have come to the conclusion that the amount for which judgment should be rendered should be only $640.50 instead of $826.50 as found by the court below. The court below finds the “Balance due Anderson $826.50,” “with interest on $557.50 from October 3d 1870, and on $275 from May 24th 1873.” Now, the aggregate of these two last-mentioned sums is more than $640.50, and even more than $826.50; and hence we hardly know how to divide the sum of $640.50 so as to make the right amount draw interest from October 3d 1870, and the right amount from May 24th 1873. But as it is the duty of the plaintiff in error to show error, and as we think he has not done so in this respect, we shall allow the court below to render judgment for interest on any sum not exceeding $557.50 from October 3d 1870, and interest on the balance of $640.50 from May 24th 1873.
The judgment of the court below will not be reversed, but the cause will be remanded with the order that the judgment, be modified so as to correspond with this opinion.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The first question in this case is, upon the construction to be given to the railroad tax-law of 1874. By the plaintiff in error it is claimed, that the valuation returned by the company is to be accepted as the proper valuation, subject to correction after notice, as provided in § 65 of the general tax-law, (Gen. Stat., p. 1041.) On the other hand it is claimed that the valuation is to be made by the city and township assessors. The question hinges in the first instance on the construction to be given to § 7, which reads as follows:
Sec. 7. The county clerk shall return to the assessor of the county or city a copy of the schedule or list of the railroad-track, and other real estate, and of the rolling-stock and other personal property pertaining to the railroad; and such railroad-track and other real estate, rolling-stock and other personal property, shall be assessed by the city and township assessors. Such property shall be treated in all respects in regard to assessment and equalization the same as other property belonging to individuals, except that it shall be treated as property belonging to railroads, under terms “lands,” “railroad-track,” “lots,” and “personal property.” — (Laws of 1874, p. 149. )
Now if the sentence which declares that the rolling-stock, etc., shall be assessed by the city and township assessors, controls, and refers specifically to the valuation of the property, then the contention of the defendant in error must be sustained. If on the other hand the clause in italics controls, we must turn to the general tax-law, and if under it the valuations placed upon their personal property by individual' owners are conclusive, unless corrected by proper proceedings, then in like manner the valuation made by the company must be taken as conclusive. The question is one of difficulty. Indeed, it seems impossible to adopt any construction which will give full force to every clause in the section. Perhaps it will throw light on the matter if we examine the general tax-law, and see what rule obtains in it, and what are the provisions for securing to the state a correct tax-list, and at the same time protecting the property-owners against excessive valuations. As to real estate, the law is plain. Sec. 31 declares that it shall be the duty of the county assessor to list and value all the real property in his county. By § 43, the county board is ordered to meet on the first Monday in July to equalize the valuation of the real estate. By § 44, notice of this meeting is to be given, so that “all persons feeling themselves aggrieved can appear and have all errors in the return corrected, as justice and equity may demand.” Here then, is what seems a fair and reasonable-provision for protecting both the state and the taxpayer. In the first place, the state, through its officer, and without consultation with the taxpayer, determines the value of the property, and, then provides a tribunal, public notices of whose meetings must be given, before which any property-holder may appear and make such showing as he desires, to have any error in the valuation of his property corrected. As to personal property, the law is not so plain — at least it is not stated so directly and positively as in the case of real estate. Still, an examination of the various sections will, we think, make clear the rule as to personal property. In the first place, there is no board of equalization of personal property, no tribunal before which the injured property-holder may come and have his assessment reduced. But on the other hand, we find provision made for the state to correct any errors made by the individual. Section 65 reads as follows:
.“Sec. 65. The county clerk or board of county commissioners, if he or they shall have reason to believe, or be informed, that any person has given to the assessor a false statement of his personal property, moneys, or credits, investments in bonds, stocks, joint-stock companies or otherwise, or that the assessor has not returned the full amount required to be listed in his ward or township, or has omitted or made an erroneous return of any personal property, moneys or credits, investments in bonds, stocks, joint-stock companies or otherwise, which are by law subject to taxation, shall proceed, at any time before the final settlement with the county treasurer to correct the return of the assessor, and to charge such person on the duplicate with the proper amount of taxes; to enable him to do which, he is hereby authorized and empowered to issue compulsory process, and require the attendance of any person or persons whom he may suppose to have a knowledge of the value of such articles of personal property, moneys or credits, investments in bonds, stocks, or joint-stock companies, or otherwise, and examine such persons on oath or affirmation in relation to such statement or return; and it shall be the duty of the clerk in all such cases, to notify such person, before making entry on the duplicate, that he may have an opportunity of showing that his statement or return to the assessor was correct; and the county clerk shall in all cases, file in his office a statement of the facts or evidence on which he made such correction; but he shall in no case reduce the amount returned by the assessor, without the written consent of the state auditor, given on a statement of facts submitted by the county clerk.”
Here it is the false statement of the individual, or the omission of the assessor, that is to be corrected, matters almost necessarily prejudicial to the state, and beneficial to the individual. And that this is not for the benefit of the individual, is made more clear by the provision that there shall be no reduction without the written consent of the state auditor, given on a statement of facts submitted by the county clerk — a proceeding too cumbersome to be of any practical value to the individual. Referring to the earlier portions of the tax-law, we find that the individual is required to return under oath a statement of his personal property and its value. Sec. 10 is as follows:
“Sec. 10. Every person required by this act to list property, shall make out and verify by his oath, and, at any time after ten days from the time of receiving notice to that effect from the assessor, shall deliver to said assessor, on demand, a statement of all personal property, and the value thereof, which by this act he is required to list.” * * *
Section 15 gives the rules for the valuation of property. In speaking of real’ estate, it refers to the “assessor” as the party fixing the value. But as to personal property, it says in one place, “the person required to fix the value thereon;” and in another, “at such prices as the person listing believes them to be worth.” Sections 17,18 and 21, define merchants and manufacturers, and how the value of their property shall be ascertained for taxation; and in them it is provided, that “he (the merchant or manufacturer) shall estimate” the value, etc. Sec. 29, which in terms applies to most corporations, provides that certain officers thereof shall under oath return to the county clerk the various items of their property, and the value thereof; and this value stands unless the county clerk believes that false or incorrect returns have been made, when he can correct the return as in § 65. The assessor has apparently nothing to do with these returns. By § 53, a blank for his statement of taxable property is required to be left with every taxpayer. By § 57, wherever the taxpayer fails to make return, or refuses to swear to his return, the assessor may proceed to ascertain the property, and its value, and may call witnesses and examine them, and from such examination determine the amount and value of his property. By § 60, if the taxpayer was absent when the assessor was collecting his returns he 'may thereafter go before the county clerk and make his statement under oath, and the county clerk is to correct the returns by that statement, thus making the valuation of the individual to correct the valuation of the officer. The assessor is required to make oath that he has returned the value given by the taxpayer, as appears from § 63 as follows:
“Sec. 63. The assessor, when making his returns of personal property, shall take and subscribe an oath, which shall be certified by the officer administering the same, and attached to the return which he is required to make, which shall be in the following form: ‘I,-, assessor for --township, in the county of-, do solemnly swear that the value of all personal property, * * * for which a statement has been made to me, by the person required by this act, for the assessment and taxation of all property in this state, according to the true value, to list the same, is hereby returned as set • forth in such statement.’ ”
And by § 64 it is made the duty of the county clerk to add to the valuation returned, when the owner refused to swear to the value, fifty per centum on the value returned. Other sections might be cited, all pointing in the same direction. But these are sufficient. They make it clear, that the rule as to personal property differs from that as to real. In the former, the individual fixes the value, and that value controls unless the state,'dissatisfied therewith, takes measures to correct it; and these measures, as already decided by this court, require notice to the individual. Leavenworth Co. v. Lang, 8 Kas. 284. In this way are the rights of the individual and state both secured. The individual giving the value, of course does himself no injustice; and the state is given the right to inquire into that value, summon the individual before a tribunal, present testimony, and have any errors corrected. It may be well, before passing from this subject, to notice the change made by the law of 1876, (Laws of 1876, p. 59, § 14; p. 71, § 59; p. 77, § 74,) by which it would seem that the owner’s valuation is no longer conclusive, and that the board of equalization has jurisdiction as to personal as well as real property.
With this consideration of the general tax-law, let us now return to the railroad tax-law. And first, we remark that if there be no way of reconciling the conflicting clauses, force ought to be given to those which would place this law in harmony with the general tax-law, and would secure the’ rights of both the state and the railroads, rather than to those which would make this incongruous and out of harmony with other legislation, and would expose the railroads to arbitrary and excessive assessments, without adequate means of investigation and redress. Now, § 7 heretofore quoted, reads, that a schedule of all the property real and personal, naming the classes as they are described in the act, shall be returned by the clerk to the assessor, and that he shall assess all, and then, that all proceedings respecting assessment and equalization shall be in harmony with the general tax-law. Counsel for the county would harmonize these two seemingly conflicting provisions by adding to the last some expression like this —“except as heretofore provided.” Counsel for the company would harmonize them by construing the two together to mean, that the assessor shall assess railroad property as he assesses individual property — that is, placing his own judgment upon the value of the real, and accepting the owner’s, statement as to the value of the personal. And this, we are constrained to hold, is the true construction. The assessor is spoken of as such, even in reference to personal property, though as to that, as we have seen, he is to accept the owner’s statement as to the value; and there is no greater impropriety in the use of language to say, that he shall assess the real and personal property, when it is intended that he shall as to the latter property accept as conclusive the statement of the owner as to value. A somewhat similar use of language is found in the amendment of 1869, vesting the duties of the county assessor in the township assessors. (Laws 1869, p. 241.) It reads:
“Sec. 31. It shall be the duty of the township assessor in each year to list and value all the real and personal property in his township not expressly exempted from taxation.
“Sec. 33. The assessor shall from actual view, and from the best sources of information within his reach, determine as nearly as practicable the true value of all taxable property within his township, according to the rules prescribed by this act for valuing property.”
Unless this be the true construction, the legislature must be held to have excepted railroads from the ordinary rules of taxation, and while making, as to all other property, reasonable provision for protecting the rights of both the state and the individual, and providing a tribunal before which- the party likely to suffer injustice may produce his evidence, and establish his rights, it has placed it in the power of one man, arbitrarily, and without consultation, to place a value for taxation upon the personal property of railroads from which there is no appeal, and against which there is, except in cases of fraud, no remedy. It secures a tribunal of revision as to real, but not to personal property; for while the state board may equalize the railroad assessments, it cannot reduce the total assessment. (Laws of 1874, p. 150, §10.) It carves out an exception not merely as to railroads, but as to certain kinds of railroad property. Again, as further evidence of the intention to harmonize railroad assessments with those of other property, it is provided in § 9 of this act—
“If any person, company or corporation * * * shall neglect to return to the county clerk the statements or schedules, * * * the property so to be returned shall be listed and assessed as other property by the city and township assessors.”
"Without pursuing the argument further, we hold that under the law of 1874, the same rule obtains in reference to railroad as in reference to other property, and no proceedings having been had in this case under § 65 of the general tax-law to correct the valuation made by the company, that valuation will control.
We pass now to the second question, the effect of a payment of a tax under protest. The facts in respect thereto appear in this extract from the petition and the exhibit thereto attached:
“One-half of said taxes became due on the 20th of December 1874; and on the 14th of December 1874, John P. Devereux, as agent for the plaintiff, tendered the treasurer of the said county the sum of $1,804.01, being one-half of said personal tax legally and properly payable by plaintiff, which sum said treasurer refused to receive. Thereupon, to avoid the issue of legal process for collection of such excessive tax, and under protest, said John P. Devereux paid the full amount of said tax as it appears on the tax-roll as then due, namely, $2,281.08, and filed the protest of the plaintiff against the illegality thereof with said treasurer, a copy whereof is hereto annexed, marked ‘A.’
“Protest ‘A.’ — To the Treasurer of the County of Wyandotte, State of Kansas: The Kansas Pacific Railway Company hereby notify you that the amount legally due by said company as one-half tax on the personal property in your county, due December 20th 1874, does not exceed the sum of $1,804.01, which sum you have refused to receive; and that said company pay the sum of $2,281.08, demanded by you, protesting against the illegality thereof, and solely to avoid the issue of legal process for its collection; and said company further notify you that they will hold you and your county liable for the excess above the amount legally due. That you are not to disburse or part with such excess, and' that said company will sue you and said county for its recovery.
Dated 14th December, 1874.
The Kansas Pacific Railway Company,
John P. Devereux, Agent, Duly Authorized.”
Under § 4 of chapter 131, laws 1874, the county treasurer was directed to issue a warrant for all taxes on personal property due and unpaid on the first day of January. So that if the company had not paid before that time, it would have been the duty of the county treasurer to have issued his warrant against it, which warrant would have had all the force and effect of an execution. Was the payment voluntary? In the case of Wabaunsee County v. Walker, 8 Kas. 436, which was a case involving the question of voluntary or involuntary payment, this court says: “A correct statement of the rule governing such cases. as this would be as follows: Where a party pays an illegal demand with a full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed to be voluntary, and cannot be recovered back. And the fact that the party at the time of making the payment filed a written protest, does not make the payment involuntary.” We see no reason to doubt the correctness of the rule as thus stated. Was this a payment to prevent an immediate seizure of the property of plaintiff in error? If the warrant had actually been issued by the treasurer, and in the hands of the sheriff, who was demanding payment and threatening seizure, there would be no question, for in the language of the supreme court of Massachusetts, in Boston Glass Co. v. Boston, 4 Metc. 181, the warrant “is in the nature of an execution running against the property of the party, upon which he has no day in court, no opportunity to plead and offer proof, and have a judicial decision of the question of his liability.” But here no warrant had issued. None could legally issue for seventeen days, nor' could the company’s property be in any manner disturbed before that time — so that there was no danger of instantaneous seizure. On the other hand, there was no further inquiry to be made by any officer or tribunal. The amount of the tax was fixed beyond any opportunity for review. There was no discretion with any one, as to whether a warrant should or should not issue, a levy should or should not be made. The machinery for adjusting the amount of the tax had completed its work, and was at rest; only the machinery for collecting was in motion, and it moved with the certainty of fate, and. the rapidity of time to the finality of seizure and sale. Where the law is imperative, and, giving no discretion, commands the issue of the warrant at a definite time, and the. levy under that warrant within a fixed time thereafter, must an individual wait until the last moment, and pay only just as the officer is seizing his property, or may he assume that the officers of the law will obey its precepts, and when all opportunity for consideration, correction, and change has passed, all discretion ended, and the tax-roll is in the treasurer’s hands, waiting only the lapse of a few days to ripen into a warrant and seizure, may he not then pay to the treasurer, protesting against the legality, and asserting his intention to contest? Does he not then 'pay to prevent an immediate seizure, one that is certainly and presently impending ? Wherein does the state suffer wrong, or what advantage does it lose by holding that to be an involuntary payment? It is not a case “ where a party can only be reached by a proceeding at law,” as suggested in Mays v. Cincinnati, 1 Ohio St. 268, in which “he is bound to make his defense in the first instance, and he cannot postpone the litigation by paying the demand in silence and afterward suing to recover back.” . In New York, the case’ of Bailey v. Buell, 59 Barb. 158, is in point. In that case the assessor obtained an order from the county judge that plaintiff should pay the amount of tax in dispute, or execution would issue against him. On being served with a copy of the order, but without any.exe cution being issued, plaintiff paid the amount. It was held an involuntary payment, and the tax being illegal the party could recover. In Union Bank v. New York, 51 Barb. 159, the trial court held that payment of an illegal tax, under a notice from the receiver of taxes that unless paid a penalty would be imposed by way of interest, and a warrant would be issued, was a voluntary payment. The commission of appeals, 51 N. Y. 638, held that such payment .was not voluntary, and reversed the decision, following Bank of Commonwealth v. The Mayor, 43 N. Y. 188. In that case, Grover, J., said, “While that [the assessment] remained in force, the tax founded thereon had the force of a judgment, requiring the plaintiff to pay the tax as required' by statute. The plaintiff was legally bound so to pay, and had no lawful mode of resisting such payment. In such a case, the only resistance to the requirement of the officer charged with the collection for payment, if that could have been made, would only subject the plaintiff to further expense, and would have been entirely abortive. Under such circumstances the plaintiff had the right to pay, without affecting its right to recover back the money, should the tax thereafter be determined illegal by a revisal of the assessment on which it was founded. The payment was not voluntarily made, but coerced by the law, which obliged the plaintiff to make it.” In Massachusetts, in Boston Glass Co. v. Boston, 4 Metc. 181, (cited in Wabaunsee Co. v. Walker, supra,) it is held that “ payment of taxes to a collector who has a tax-bill and warrant in the form prescribed by law, is to be regarded as compulsory payment, and if such taxes were assessed without authority, they may be recovered back in an action for money had and received, although the party made no protest before payment.” An examination of the facts in that case will show that no execution or final process for collection had been issued, but that payment was made on the tax-bills, a species of formal demand for payment. This case follows Preston v. Boston, 12 Pick. 7, where it is held, “if a person pay an illegal tax in order to prevent the issuing of a warrant of distress with which he is threatened, and which must issue of course unless the taw is paid, the payment is to be deemed compulsory, and not voluntary.” In Grim v. School District, 57 Penn. St. 434, it is said to be settled law, that “A party who, when threatened with a distress, pays an illegal tax under protest and notice of suit, may maintain an action to recover it back.” See also, Henry v. Horstick, 9 Watts, 414. In Allen v. Burlington, 45 Vermont, 202, the court says: “If the plaintiff was constrained to pay the tax to save his property from distress and to avoid a penalty and costs, it was not a voluntary payment. (Babcock v. Granville, 44 Vt. 326; Henry v. Chester, 15 Vt. 469.) It is not necessary that the warrant should have been issued, and the levy instant. If he expected and had a right to expect that in due course the warrant would issue, and the collection be enforced with costs, and that unless he complied with the one alternative he must submit to the other, and he paid, because otherwise the other alternative would be upon him, with protest that he paid because thus constrained, it is not such voluntary payment that he would be precluded from recovering back the taxes so paid, if they were illegally imposed.”
It seems to us, then, that according to a fair and reasonable interpretation of the rule, the railway company paid this first half of the tax under such circumstances that it should be considered an involuntary payment. It was to prevent a seizure as certainly impending as the law could make it, and one also presently impending. It may be remarked that the entire personal tax was levied and assessed as one tax. The law simply divided the time of payment, requiring one-half to be paid in December, and permitting the other to remain until the June following, so that if more than the one-half was paid in December, there would be some show of reason in holding that it might be corrected when the last half of the same tax was to be paid.
We see no other question in the case necessary for consideration. The ruling of the district judge will be reversed, and the case remanded with instructions to grant a tempo rary restraining order, upon the giving of a proper and sufficient bond.
Kingman, C. J., concurring.
[*Tms section, and 2, 3, 4, 5, 6, and 11, of tlie same act, were amended by chapter 123, Laws of 1875. — Laws of 1875, pp. 185,187.]
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The opinion of the court was delivered by
Johnston, C.' J.:
The petitioner, Porter Patterson, seeks a writ of habeas corpus to secure his release from the custody of the sheriff of Shawnee county. Under the agreed facts it appears that oh or about November 4, 1911, the petitioner entered a plea of guilty to four counts for the violation of the prohibitory liquor law and was sentenced to twelve months’ imprisonment and to pay a fine and costs amounting to $752.50. On January 3, 1912, the petitioner was found guilty of contempt of court in failing to obey a liquor injunction and was sentenced to pay a fine of $500 and to six months’ imprisonment, the sentence to begin at the expiration of the one mentioned next above, and to pay the costs, amounting to $152.75. Petitioner remained under these two sentences of imprisonment until January 18, 1913, when he was paroled under an agreement with the county attorney that judgment in an action begun on November 21, 1911, should be rendered against the petitioner and his wife, declaring the costs accruing in the two above-mentioned cases, amounting to $405.25, to be-a first lien upon petitioner’s homestead. On July il, 1913, upon the application of the county attorney, the homestead was sold for $299.49. On December 13, 1913, upon the oral application of the county attorney, the parole of the petitioner was revoked for violation of its conditions, and without notice to him, the county attorney and sheriff representing that petitioner had on that day been arrested on a state warrant charging violations of the prohibitory liquor law, and the petitioner was recommitted to custody. On April 16, 1914, petitioner was convicted of three sales of intoxicating liquor made between the time of granting the parole and the time of revoking it and sentenced to the pententiary as a persistent violator, from which sentence an appeal, which is still pending, was taken to this court. As the order of parole had been lost before entry a nunc pro tunc entry was made on December 19, 1913, as of January T8, 1913, by the second division of the Shawnee county district court paroling the petitioner.'
The petitioner insists that the revocation of the parole and his recommitment to prison without notice and hearing, and without the filing of an affidavit as the basis for an order for rearrest, trenched upon his constitutional rights and deprived him of his liberty without due process of law. The legislature has authorized the district courts to parole prisoners convicted of violations of the criminal laws of the state. The act contains many- provisions defining the conditions upon which paroles may be granted and revoked and providing the procedure in the granting of paroles to the different classes of convicts and of revoking them. The only provision necessary to be considered in the disposition of the question presented here is the following:
“The courts named in section 1 of this act, or the judge thereof in vacation, subject to the restrictions hereinafter provided, may, in their discretion, when satisfied that any person against whom a fine has been assessed or a jail sentence imposed by said court, or any person actually confined in jail under judgment of a justice of the peace, city court, or other like inferior court, but not police court, will, if permitted to go at large, not again violate the law, parole such person and permit him to go at large, upon such conditions and under such restrictions as the court or judge granting the parole shall see fit to impose; such court or judge may at any time, without notice to such person, terminate such parole by simply directing execution to issue on the judgment, or, in case the person shall have been actually confined in jail, the parole may be terminated by directing the sheriff or jailer to retake such person under the commitment already in his hands. After the parole has been terminated, as above provided, the court or judge may in his discretion, after the payment of all costs in the case, grant a second parole, but no more than two paroles shall be granted the same person under the same judgment of conviction. If a parole shall be términated, the time such person shall have been at large on parole shall not be deducted from the time he shall be required to serve, but the full amount of the fine shall be collected or the full time in jail be served, the same as if no parole had been granted.” (Gen. Stat. 1909, § 2460.)
The parole granted under this provision is not the vacation of the sentence imposed nor is it a commutation of the punishment. It suspends the execution of the penalty and temporarily releases the convict from imprisonment upon conditions which he is at liberty to accept or reject. A parole is granted by the court at its discretion and upon the theory that punishment is not the sole purpose of a prosecution and conviction, but that the reform and improvement of a prisoner is a matter of great importance. The legislature was evidently actuated by the thought that prisoners convicted might be reformed and society at the same time protected by a suspension of the sentence and a release from imprisonment upon conditions which the court might determine would be most helpful and effective. Although the prisoner is conditionally released, the sentence is not set aside nor is the offense expiated. He is still under the supervision of the court and subject to be remanded to prison if he fails to perform or violates the conditions of the parole. The statute expressly provides that the court may grant the parole on such conditions and under such restrictions as it may see fit to impose. In its discretion it may attach any conditions to the parole that are not immoral, illegal or impossible of performance, and as the authority is to be exercised by a court or’ judge it is expressly provided that the parole may be terminated at any time and the convict remanded to prison without notice to him. It is competent for the legislature to provide that the court may, upon information that is satisfactory to it, revoke the parole and summarily remand the convict to prison to serve out a sentence legally imposed. The failure of the convict to observe the conditions of a parole is not a new offense, and the revocation of the parole and the returning of the convict to prison is not an added punishment for the offense of which he was convicted nor a punishment for any other offense, but it is rather a disciplinary regulation of prison, management in carrying out the sentence of the law already imposed and grow ing out of the effort to ameliorate the condition of the convict. There was, therefore, no occasion for the making of an affidavit before petitioner’s rearrest, nor any necessity for the filing of an information or indictment, nor for providing a trial by a jury. The rights which he is insisting upon and which are guaranteed to him by the constitution were accorded to him when he was arrested and prosecuted for the offense of which he was convicted and for which he is now imprisoned. The legislature might have required that notice be given to him and others, and also that there be a hearing as to the violation of the conditions of the parole before revoking it and remanding him to prison, but instead of that the legislature expressly provided that there might be a revocation without notice to him. The petitioner obtained a parole knowing of this provision of the statute and that the parole might be revoked by the court without notice, and, more than that, it was one of the conditions written in the parole which the petitioner sought and accepted. The conditions were that he should refrain from selling intoxicating liquors or keeping them for sale or to be drunk upon his premises and also from violating the prohibitory and other laws of the state or the ordinances of the city, and it was expressly stated that if he violated the provisions of the parole he would be summarily recommitted to the jail, and that the judge might, upon information to his satisfaction of the violation of the parole, recommit the petitioner to jail without either notice or hearing. The petitioner was at liberty to accept the parole with the conditions attached or to decline it and serve out the sentence imposed, but when he accepted it he, in effect, agreed to all the conditions of the parole, and, among them, that when the judge or the court became satisfied that he had violated the conditions of the parole it might be terminated without notice to'him and he be recommitted to jail to complete his sentence. Among the authorities which support the theory- that by accepting a parole the convict ac cepts it subject to its conditions and restrictions and is bound to comply with them the following may be cited: Woodward v. Murdock, 124 Ind. 439, 24 N. E. 1047; Spencer v. Kees, 47 Wash. 276, 91 Pac. 963; Fuller v. The State, 122 Ala. 32, 26 South. 146, 45 L. R. A. 502, 82 Am. St. Rep. 1; Ex parte Ridley, 3 Okla. Cr. Rep. 350, 106 Pac. 549; People v. Marsh, 125 Mich. 410, 84 N. W. 472, 51 L. R. A. 461, 84 Am. St. Rep. 584; Ex parte Marks, 64 Cal. 29, 28 Pac. 109, 49 Am. Rep. 684; Ex Parte: William Wells, 59 U. S. 307, 15 L. Ed. 421; United States v. Wilson, 32 U. S. 150, 8 L. Ed. 640; Ex Parte Alvarez v. The State of Florida, 50 Fla. 24, 39 South. 481, 111 Am. St. Rep. 102.
The authorities are not uniform as to the effect of paroles and conditional pardons nor as to the methods that may be employed in revoking them. The differences depend largely on whether the officers taking the action are clothed with full power in the matter of paroles and conditional pardons or whether the action has been taken by subordinate officers or boards with limited powers, or as to the extent of the legislative authority conferred upon such officers, and also as to the conditions that were written in the parole and under which it was granted and accepted. There is abundant authority for the view taken by this court — that where there has been a release the court or judge, when satisfied that the conditions under which it has been granted have been violated, may revoke the parole and cause the rearrest of the convict and his return to prison without notice or hearing, and that this does not deprive the convict of his liberty without due process of law nor violate the other guaranty that no warrant shall issue except upon probable cause supported by oath or affirmation. Here the power is exercised by a court or the judge thereof upon an express provision of the statute and in accordance with the conditions of the parole, and hence the case does not fall within some of the cases cited in opposition to the exercise of the power. Authorities supporting the exercise of the power and the view herein expressed are Ex parte Ridley, supra; Owen v. Smith, 89 Neb. 596, 131 N. W. 914; Woodward v. Murdock, supra; Kennedy’s Case, 135 Mass. 48; The State ex rel. Attorney-General v. Peters, 43 Ohio St. 629, 4 N. E. 81; Fuller v. The State, supra; State v. Hunter, 124 Iowa, 569, 100 N. W. 510, 104 Am. St. Rep. 361.
It is fair to infer that the court would have given consideration to any evidence that the petitioner might have chosen to present tending to show that the information upon which the revocation had been made was not correct if application had been made. Instead of applying to the court, which is always ready to ascertain the real facts and ■ correct any errors it has made of fact or law, the petitioner chose to stand on the naked question that the court had no power to make an ex parte order and that the revocation was absolutely void. His action may be accounted for, in part at least, by a stipulation in the record that the petitioner, who had accepted the parole on condition that he would refrain from violating the prohibitory liquor law, had been convicted of violations of that law while he was out .on parole and had been convicted of being a persistent violator of that law. These convictions are strong evidence that the conditions of the parole had been violated.
The petitioner will be remanded.
Dawson, J., not sitting.
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The opinion of the court was delivered by
Mason, J.:
Mrs. R. M. Buchanan recovered a judgment in the district court of Smith county upon a fire insurance policy, and the company appeals.
The case was tried in the absence of the defendant’s attorney, and the judgment was rendered upon the pleadings and the evidence introduced by the plaintiff. A motion for a new trial and a petition to set aside the judgment were urged on account of the circumstances which caused the absence of the defendant’s attorney, and on the ground that in the state of the pleadings the cause was not properly for trial, and that in any event the evidence of the plaintiff did not make out a prima facie case.
The facts regarding the making up of the pleadings and the absence of the defendant’s attorney may be thus summarized: At the March, 1912, term of the court a motion was presented to strike matter from the reply on the ground that it constituted a departure from the petition, inasmuch as -in the petition the plaintiff alleged that she had complied with all the conditions of the policy, and in her reply stated that while in some respects she had not so complied, the company had waived compliance. The motion was sustained. The petition was at once amended by interlineation so .as to read that the plaintiff had complied with the conditions of the policy, excepting such as had been waived by the defendant. A slip was also attached to it containing allegations to the effect that the defendant by its misconduct had prevented an arbitration of the amount of loss. The plaintiff asked and was given leave to file an amended petition on or before May 1, 1912, but no further amendment to the petition was made. On June 6 the defendant’s attorney, a resident of Topeka, wrote to the plaintiff’s attorney asking that the amended petition be filed within ten days, and that he be furnished a copy. He also wrote to the clerk of the court asking a copy of any new pleadings, and inquiring if any had been filed. He received no answer to either letter. On August 28 the plaintiff’s attorneys wrote him that they had -already written him that they had decided not to rewrite the petition; and that at the March term of court they had attached the slip already referred to. On August 31 the defendant’s attorney wrote to the plaintiff’s attorneys that he did not see how he could be ready for trial at the approaching term, that he could not- be present on the opening day (Monday, September 2), and that he hoped the case would be passed until he could come to Smith Center and arrange for either a continuance or a trial later in the term. An answer was sent him on the 2d, to the effect that the court had set the case for the 4th, but with the understanding that if he was not ready for trial it should go over until the' latter part of the next week. He at once answered that, in view of engagements made, it was practically impossible to take up the trial at the September term. On September 7 he received a telegram saying that the case was set for the 10th and that the plaintiff would not consent to a continuance. On Monday, September 9, while in Denver, he received a telegram from one of the defendant’s attorneys saying that the case would be passed until Saturday, the 14th, or Monday, the 16th. After receiving this information he arranged for the hearing of a case in a federal court at Denver on Friday, the 18th, expecting to leave Denver that night and to reach Smith Center on the morning of the 14th. Late in the afternoon of Thursday, the 12th, he learned that the Smith county district court would insist on hearing the cause on Friday, the 13th. The trial in the federal court was not then completed, and on that account the defendant’s attorney was required to remain in Denver until the next morning. On that day (Friday, the 13th) the Smith county case was tried. The motion for a new trial was filed on September 16, and the petition to set aside the judgment on September 20. Both were heard and overruled on December 21, 1912.
The situation obviously presented strong reasons for such a continuance as would accommodate the defendant's attorney, and enable him to be present at .the trial. But the district court, having in mind the condition of the business to be disposed of, the-time available for the purpose, and the rights of other litigants, was required to exercise judgment and discretion in determining whether there should be a postponement. We have less knowledge than the district court of the extent to which such an order would have affected other matters, and can not say that there was any abuse of discretion in calling and hearing the case in the absence of the defendant’s attorney, and in refusing to grant a new trial. The defendant’s attorney had notice on September 12 that the case would be heard the next day, so that it was possible for him to have been present, or to have procured a representative. After receiving that notice he appears to have sent no further word as to his wishes or intentions until the night of the 13th, after the trial, when he sent a telegram to the judge, asking what order had been made, to which he received no reply. It is obvious that if the case had been called on the 14th, in accordance with the telegram on which he relied in arranging for the hearing in the federal court, he would not have been present.
It can not be said that the case was called for trial before it was properly at issue. The issues were joined by the filing of a petition, answer and reply. The requirement that the issues should be made up ten days before the trial was thus satisfied, irrespective of any subsequent amendments. (Rice & Floyd v. Hodge Bros., 26 Kan. 164.) The plaintiff’s permission to file an amended petition by May 1 expired when the period fixed had elapsed. (Haight v. Schuck, 6 Kan. 192.) The effect of the changes made by the interlineation and the attachment of the slip to the petition were to transfer allegations from the reply to the petition. That the instrument was not marked as refiled is not important. The reply contained a general denial, and it is not suggested that any further pleading on the part of the defendant was necessary or desired, except with reference to the matter of gasoline being kept on the premises, hereinafter referred to.
The defendant maintains that no recovery should have been permitted because the plaintiff, although pleading performance on her part of the conditions precedent to recovery, introduced no evidence to support the allegation, beyond showing that proof of loss was made. The policy contained the usual provision that no suit should be sustainable until after full com pliance with all its requirements,, one of which was that in the event of disagreement as to the amount of loss it should be settled by the award of appraisers. Such provisions have been held to make an arbitration a condition precedent to an action on'the policy, where the amount is in controversy, although there is a want of harmony in the adjudications on the subject. (Note, 15 L. R. A., n. s., 1055.) Here there was no express averment of a disagreement as to the amount of loss, although this might be inferable from the allegation, both in the petition and answer, that a request for an arbitration had been made. No evidence was offered on this subject. Whether or not under the pleadings the plaintiff had the burden of proving that the arbitration was prevented through the fault of the defendant, we do not regard the absence of evidence on that point as requiring a reversal. Testimony was given that the loss was over $5000. The policy was for but $1500. In its effort to have the judgment vacated the defendant represented that the plaintiff had violated the terms of the policy by storing gasoline on the premises, but did not undertake to show that the goods destroyed were worth less than the amount of the policy. In this situation we do not think the decision of the trial court should be disturbed.
The judgment is affirmed.
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The opinion of the court was delivered by
DAWSON, J.:
This is an appeal from an award of $1632.75 as damages for expenses and loss of services to the appellee on account of injuries received by his two minor sons through an explosion of solidified glyc-erine which was the property of the appellant. The circumstances leading up to the unfortunate occurrence, which gave rise to this lawsuit may be briefly stated: On November 25, 1909, one L. H. Small was engaged in drilling an oil well upon the farm of J. McDowell in Chautauqua county near the home of Steve Clark, the appellee. The appellant, E. I. Dupont de Nemours Powder Company, is a New Jersey corporation, authorized to do business in Kansas and engaged in the business of manufacture and sale of exploding powders, nitroglycerine, solidified glycerine, and shooting of oil and gas wells with nitroglycerine, solidified glyc-erine and other powerful explosives of the nature of dynamite. On said date the agent of the appellant, one Van Gray, came from Bartlesville, Okla., to shoot the well with solidified glycerine, and after this was done he carelessly left near the well about a quart of solidified glycerine. One Joe McDowell, a son of the owner of the farm, and who was in the employ of the contractor who was boring the well, saw the explosive lying near, and, fearing that it would cause injury to himself or his fellow workmen who were still busy about the well, took charge of it and carried it home with him at the dinner hour. His mother protested against keeping this dangerous article about the premises, and he immediately took the solidified glyc-erine to an abandoned graveyard on the McDowell farm at some considerable distance from his home. The graveyard was quite small, containing only three or four bodies, and was surrounded by a stone fence. It had not been used as a burial ground for many years. Young McDowell climbed the stone fence and placed the dynamite in a crevice therefn near the ground, and laid another stone in front of the recess in the fence, partially covering the explosive.
Neither the powder company nor its agent, Van Gray, ever gave the nitroglycerine any further concern, and it remained in the stone fence of the old graveyard for over two years, and until December 23, 1911, when it was found by the children of the ap-pellee and two other boys who were passing that way. One of the sons of the appellee climbed over the stone fence and found the nitroglycerine and handed it to the boys on the outside. They did not know its nature, and after handling it to some extent they left it at the graveyard. That evening one of the boys, Fred Clark, spoke to his uncle about it and described it to him, and the uncle ventured the opinion that it was some sort of tallow and not dynamite. The next morning, Sunday, the two Clark boys and another boy were out hunting and returned to the graveyard and one of them picked up the article and hit it on a rock for the purpose of breaking off a piece to take home. This caused the explosion.
The father grounds his action upon actual damages on account of expenditures for medical and surgical services, medicine and drugs, for his own service and that of his wife and hired help in nursing and caring for' his sons, and for the loss of the services of his sons for five months of each year until they are twenty-one years of age.
Appellant assigns error on various grounds, but they are all argued together and are conceded to be substantially the same or relating to the same principle and may be- considered as one question. What was the approximate cause of the inj ury to plaintiff’s sons ?
There can be no doubt of the negligence of the powder company and its agént, Yan Gray, in carelessly leaving by the oil well an article so inherently dangerous as solidified glycerine. The highest degree of care is required of all responsible persons having ownership or control of dangerous explosives such as dynamite and firearms. The utmost prudence and caution should be exercised to see that so dangerous an instrumentality does not work mischief to persons or property. The degree of care must be commensurate with the dangerous character of the commodity, and the duty to exercise this highest degree of care in keeping close custody of an article like dynamite never ceases.
In Mattson v. Minnesota & North Wisconsin Railroad Co., 95 Minn. 477, 104 N. W. 443, 111 Am. St. Rep. 483, it was said:
“The degree of care required of persons having the possession and control of dangerous explosives, such as dynamite, is of the highest. The utmost caution must be used to the end that harm may not come to others in coming in contact with them.” (Ill Am. St. Rep. 483, syl. ¶ 2.)
This principle is virtually admitted by appellant and its counsel, but in an exhaustive and scholarly brief they attempt to show that the negligence of the agent was not the proximate cause of the damage; and that there was an independent and efficient intervening agency growing out of the act of the young man McDowell, who to save himself and his fellow workmen from danger carried the dynamite first to his home, and then hid it in the abandoned graveyard; and that the acts of McDowell in removing the solidified glyc-erine from the place where he found it and in taking it home and hiding it in the old graveyard, where it was found by the children of appellee, innocent though young McDowell’s acts might be, were the proximate cause of the damages which ensued.
The doctrine of remote and proximate cause is well established, and the difficulty in this case does not arise from a dispute as to the principle but as to its application. In 1 Cooley on Torts it is said:
“If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote. The chief and sufficient reason for this rule is to be found in the impossibility of tracing consequences through successive steps to the remote cause, and the necessity of pausing in the investigation of the chain of events at the point beyond which experience and observation convince us we can not press our inquiries with safety. To the proximate cause we may usually trace consequences with some degree of assurance; but beyond that we enter a field of conjecture, where the uncertainty renders the attempt at exact conclusions futile.” (3d ed., p. 99.)
Our attention is directed to many cases, including former decisions of this court, where the principle laid down by Judge Cooley is recognized. (Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338; Railway Co. v. Parry, 67 Kan. 515, 73 Pac. 105; Rodgers v. Railway Co., 75 Kan. 222, 88 Pac. 885; Gas Co. v. Dabney, 79 Kan. 820, 102 Pac. 488; Railroad Co. v. Justice, 80 Kan. 10, 101 Pac. 469; Barnett v. Cement Co., 91 Kan. 719, 139 Pac. 484.)
Running through all the precedents in analogous cases the test appears to be: Is the injury or damage the natural and probable consequence of the original negligence? The mere intrusion of an intervening agency does not always excuse the original wrongdoer. On this subject the supreme court of Massachusetts has spoken with such accuracy and precision that its ideas are settled law. Thus in Stone v. Boston & Albany Railroad, 171 Mass. 536, 51 N. E. 1, it was said:
“It can not, however, be considered that in all cases the intervention even of a responsible and intelligent human being will absolutely exonerate a preceding wrongdoer. Many instances to the contrary have occurred, and these are usually cases where it has been found that it was the duty of the original wrongdoer to anticipate and provide against such intervention, because such intervention was a thing likely to happen in the ordinary course of events. Such was the case of Lane v. Atlantic Works, 111 Mass. 136, where it was found by the jury that the meddling of young boys with a loaded truck left in a public street was an act which the defendants ought to have apprehended and provided against, and the verdict for the plaintiff was allowed to stand. In the carefully expressed opinion by Mr. Justice Colt the court say: ‘In actions of this description, the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.’ According to this statement of the law, the questions in the present case are, Was the starting of the fire by Casserly the natural and probable consequence of the defendant’s negligent act in leaving the oil upon the platform? According to the usual experience of mankind, ought this result to have been apprehended ? The question is not whether it was a possible consequence, but whether it was probable, that is, likely to occur, according to the usual experience of mankind: That this is the true test of responsibility applicable to a case like this has been held in very many cases, according to which a wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. One is bound to anticipate and provide against what usually happens and what is likely .to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable. A high degree of caution might, and perhaps would, guard against injurious consequences which are merely possible ; but it is not negligence, in a legal sense, to omit to do so.
“There may not always have been entire consistency in the application of this doctrine; but, in addition to cases of boys meddling with things left in a public street, courts have also held it competent for a jury to find that the injury was probable, although brought about by a new agency, when heavy articles left near an opening in the floor of an unfinished building, or in the deck of a vessel, were accidentally jostled so that they fell upon persons below; McCauley v. Norcross, 155 Mass. 584; The Joseph B. Thomas, 81 Fed. Rep. 578; when sheep, allowed to escape from a pasture and stray away in a region frequented by bears, were killed by .the bears; Gilman v. Noyes, 57 N. H. 627; and when a candle or match was lighted by a person in search of a gas leak, with a view to stop the escape of gas; Koelsch v. Philadelphia Co., 152 Pa. St. 355; and in other cases not necessary to be specially referred to. In all of these cases, the real ground of decision has been that the result was or might be found to be probable, according to common experience.
“Without dwelling upon other authorities in detail, we will mention some of those in which substantially this view of the law has been stated. (Davidson v. Nichols, 11 Allen, 514; McDonald v. Snelling, 14 Allen, 290; Tutein v. Hurley, 98 Mass. 211; Hoadley v. Northern Transportation Co., 115 Mass. 304; Hill v. Winsor, 118 Mass. 251; Derry v. Flitner, 118 Mass. 131; Freeman v. Mercantile Accident Association, 156 Mass. 351; Spade v. Lynn & Boston Railroad, 168 Mass. 285, and cases there cited; Cosulich v. Standard Oil Co., 122 N. Y. 118; Rhodes v. Dunbar, 57 Pa. St. 274; Hoag v. Lake Shore & Michigan Southern Railroad, 85 Pa. St. 293; Behling v. Southwest Penn. Pipe Lines, 160 Pa. St. 359; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 405, 406; Haile v. Texas & Pacific Railway, 60 Fed. 557; Clark v. Chambers, 3 Q. B. D. 327; Whart. Negl., 2d ed., §§ 74, 76, 78, 138-145, 155, 955; Cooley, Torts, 69, 70; Add. Torts, 40; Pollock, Torts, 388; Mayne, Damages, 39, 47, 48.) ” (p. 540.)
Our attention is directed by counsel for appellant to many cases where on account of an independent intervening agency the original wrongdoer was excused. (Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400; Carter v. Towne, 103 Mass. 507; Nickey v. Steuder, 164 Ind. 189, 73 N. E. 117; Cole v. German Savings and Loan Soc., 124 Fed. 113; Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1; Jennings v. Davis, 187 Fed. 703, 713; Finkbeiner, Appellant, v. Solomon, 225 Pa. St. 333, 74 Atl. 170; Harriman v. Railway Company, 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. Rep. 507; Harton v. Telephone Co., 146 N. Car. 429, 59 S. E. 1022, 14 Ann. Cas. 390; Pollard v. Oklahoma City Ry. Co., 36 Okla. 96, 128 Pac. 300.)
On the other hand, counsel for appellee cite and quote from an impressive list of authorities beginning with the well-known Squib case, decided in 1770, and closing with the last expression of this court on analogous cases where the original cause was held to be the principal and proximate cause and where the intermediate incidents did not avoid the consequences-arising from the acts or delicts of the original wrongdoer.
We do not think the facts in the Squib case (Scott v. Shepherd, 2 W. Bl. 892) are quite the same as here. In that casp the burning squib was thrown by the original wrongdoer on the market stand of Yates, who instinctively and immediately picked it up and threw it on the stand of Willis, and Willis immediately threw it upon the stand of Ryal, and Ryal immediately and in self-defense threw it away from him so that it struck the eye of the plaintiff, Scott, and put out his eye. In that case the intervening agents had no time for reflection. But part of the opinion in that case is pertinent here:
“That the natural and probable consequence of the act done by the defendant was injury to somebody, and therefore the act was illegal at common law. . . . Being therefore unlawful, the defendant was liable to answer for the consequences, be the injury mediate or immediate. . . . The defendant ... is the person, who, in the present case, gave the mischievous faculty to the squib. That mischievous faculty remained in it till the explosion. No new power of doing mischief was communicated to it by Willis, or Ryal. It is like the case of a mad ox turned loose in a crowd. The person who turns him loose is answerable in trespass for whatever mischief he may do. The intermediate acts of Willis and Ryal will not purge the original tort in the defendant. But he- who does the first wrong is answerable for all the consequential damages.” (p. 893.)
Here we reach the crux of the matter. No new power of doing mischief was communicated to the solidified glycerine by the acts of young McDowell. The power of doing mischief was inherent in the glyc-erine all the time. That some terrible accident was likely to happen in letting it out of the close custody of some one skilled in its use was not only natural and probable but almost inevitable. McDowell had no skill or experience in handling the dangerous article. He did the best he could to prevent the damage impending on account of Van Gray’s negligence. That he attempted to prevent its doing damage, but failed on account of lack of sufficient- knowledge to dispose of it effectively, does not amount to an unrelated and efficient agency to shift the proximate cause from the delict of the powder company to a new proximate cause of his own making.
It may be said, however, that this is mere argument. If so, then the question clearly resolves itself into one of fact for the jury; and this is in harmony with the authorities.
In Railway Co. v. Parry, 67 Kan. 515, 73 Pac. 105, it was said:
“Negligence, to be the proximate cause of an injury, must be such that a person of ordinary caution and prudence would have foreseen that some injury would likely result therefrom, not that the specific injury would result. The question whether negligence is the proximate cause of an injury is ordinarily one of fact for the jury.” (Syl. ¶ 2.)
In that case a passenger on the train became seriously ill, and the conductor called the depot-master at Newton, who, with the assistance of the porter, removed the sick man from the train and the conductor told the depot-master to care for him. About four hours afterward the sick man was run over and killed about five miles from Newton. The railway company insisted that even if there was culpable negligence it was not the proximate cause of the injury. In its opinion the court said:
“At most, the question whether the negligence of the depot-master was the proximate cause is one upon which the minds of different parties might reasonably disagree; and such being the case, and the whole matter having been submitted to the jury under proper instructions, and they having found that it was, we may not disregard these findings of fact. Wé are of the opinion that, upon both questions, there was sufficient' evidence to go to the jury and to sustain the general findings in favor of the defendant in error.” (p. 520.)
Another good case holding that the determination of proximate cause is a question for the jury, and which also contains a strong and logical analogy to the case at bar, is Filson v. Express Co., 84 Kan. 614, 114 Pac. 863, where the syllabus reads:
“The owner of an express package failed to call at the express office for it and the agent of the express company placed it in the company’s office, which was located in a railroad depot consisting of a frame building, the doors and windows of which were locked. The depot had been used for years for depositing freight and express matter. It was entered during the night by a burglar breaking the glass of one of the windows, and the package with its contents was stolen. The package was a canvas-covered telescope containing moving-picture films. It weighed fifty-five pounds and was valued at $600, and the value was marked on the outside of the package in plain figures. In an action to recover against the company for its loss it was con ceded that the liability of the company was that of a warehouseman. Held, that it was a question for the jury to determine from all the evidence and circumstances whether the express company failed to exercise ordinary care, and whether such failure was the proximate cause of the loss.” (Syl. ¶ 2.)
In the opinion, Mr. Justice Porter said:
“Whether persons in the exercise of ordinary care would have left it there over night, in a building which could be easily entered by burglars and which the evidence shows had been burglarized at least once before, to the knowledge of the express agent, was, under all the circumstances, a question for the jury.
“It was also for the jury to determine whether the negligence of the company was the proximate cause of the loss. It was the proximate cause if the loss by burglary was the natural and probable consequence of the failure of the company to exercise ordinary care— that is, if it might have been foreseen by ordinary ■forecast.” (p. 618.)
In the still later case (Barnett v. Cement Co., 91 Kan. 719, 139 Pac. 484), the same proposition was adhered to, although two dissenting justices urged that the determination of the jury as to which was the remote and which the proximate cause is not necessarily conclusive. If that be a qualification of the general rule, it takes nothing from the strength of appellee’s position in this case, for the trial court was satisfied that the negligence of the appellant was the proximate cause of the injury, and so are we.
Among other cases examined in arriving at these conclusions, the following may be noted: Eberhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416; Broseghini v. Coal Co., 92 Kan. 113, 139 Pac. 1025; Kleebauer v. Western Fuse etc. Co., 138 Cal. 497, 69 Pac. 246; Dist. of Columbia v. Dempsey, 13 App. Cas. (D. C.) 533; Page v. Bucksport, 64 Maine, 51, 18 Am. Rep. 239; Wellington v. Downer Kerosene Oil Company, 104 Mass. 64; Lane v. Atlantic Works, 111 Mass. 136; Filer v. Smith, 96 Mich. 347, 55 N. W. 1002; Skinn v. Reutter, 135 Mich. 57, 97 N. W. 152; Iamurri v. Sagi naw City Gas Co., 148 Mich. 27, 111 N. W. 884; Vills v. City of Cloquet, 119 Minn. 277, 138 N. W. 33; Quigley v. Canal Co., 142 Pa. St. 388, 21 Atl. 827, 24 Am. St. Rep. 504; Lowery v. Manhattan Railway Co., 99 N. Y. 158, 1 N. E. 608; Williams v. Koehler & Co., 41 App. Div. 426, 58 N. Y. Supp. 863; Olson v. Home Investment Co., 58 Wash. 151, 108 Pac. 140; Illidge v. Goodwin, 5 C. & P. 190; Dixon v. Bell, 5 M. & S. 198; Lynch v. Nurdin, 1 Q. B. 29.
The other errors assigned are all incidental to the main question. The fact that the boys were hunting on Sunday, or that they might be trespassers, does not affect the case. The jury found that they were not trespassing; but the damage did not arise from the trespass nor the Sabbath breaking, nor did they contribute in the slightest degree to the accident and its consequences.
No substantial error appearing in the record, the judgment is affirmed.
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The opinion of the court was delivered by
Valentine, J.:
On the 29th of February 1872, the county of Harvey was created, and in establishing the boundaries thereof a certain strip of territory was detached from the county of Sedgwick, and incorporated into the county of Harvey. (Laws of 1872, p. 184, § 5.) At the same time, and by the same act, the legislature specifically expressed their intention that said detached territory should not be relieved from any obligation which it was then under to pay its proper ProPortion of the railroad bonded indebtedness previously incurred by said Sedgwick county; (§ 6 of said act.) And only three days prior to that time the same legislature, by a general law, expressed its intention that no detached territory should, by reason of any change in county boundaries, be released from the payment of its just and equitable proportion of any indebtedness previously incurred by the county to which it had formerly belonged. (Laws of 1872, p. 180, §9.) But the legislature failed to make its will and intention -as expressed in these acts effective, as applied to this particular case. The provisions by which the legislature attempted, in the act creating Harvey county, to make its said will and intention effective, were not covered by the title to the act, and were therefore unconstitutional and void. (Sedgwick County v. Bailey, 13 Kas. 600.) And the general law above mentioned (Laws of 1872, p. 177, et seq.,) applies only where county lines are changed by the county commissioners and a vote of the people, and not where new counties are created and county lines changed by a special a.ct of the legislature! Said strip of territory was therefore left by the legislature under a sup-i posed moral obligation to pay its proportionate share of the said bonded indebtedness of Sedgwick county, but without any legal means of enforcing such moral obligation. Now in all cases, as we understand the law, where the legislature divides a county without making any legal provision for a division or apportionment of the debts or property thereof, the old county pays all the debts, and takes all the property. (Larmie Co. v. Albany Co., recently decided by the supreme court of the United States, 13 Albany Law Journal, 229.) But we do not understand that the legislature is in all cases and under all circumstances bound to make the provision for such- division or apportionment of the debts and property in the same act by which they divide the county. They may certainly provide for such division or apportionment by a general law passed previously to the act dividing the county. And in some cases and under some circumstances we think that they may, by either a general or special act, make provision for such a division or apportionment even after the act dividing the county has itself been passed. Why should they not have such power, where the very act dividing the county expressly contemplates such a thing? Probably in such a case the county would not be divided except for such contemplated division and apportionment. It would seem that when the legislature divides a county, and attempts in the same act to make an equitable apportionment of the debts, but fails to do so merely because of a failure (as in this case) to make the title of the act comprehensive enough to include the provision making such apportionment, then the legislature should have the power by a subsequent act to provide for such apportionment. Perhaps the legislature would have the power to do so indirectly, by reannexing the detached strip to the old county, and then detaching it again. But they ought to have the power to do the same directly, for doing it indirectly and in such a manner would look like trifling. But subsequently to the passage of the act dividing Sedgwick county, and on March 3d 1873, the legislature passed the following act, to-wit:
“Sec. 1. All bonds heretofore or hereafter'legally authorized and issued by a vote of its electors in any county or township, shall become and be a lien upon all the real estate in such county or township for the payment of the principal and interest of said bonds.
“Sec. 2. No person or property hereafter attached by a change of boundary lines to any county or township, wherein any bonds previously authorized by a vote of the electors of such county or township shall have been previous to such change- of boundary lines legally issued, shall be subject to taxation for the payment of the principal or interest of such bonds.
“Sec. 3. All real estate heretofore or hereafter detached by a change of boundary lines from any county or township, wherein any bonds shall have been previous to such change of boundary lines legally authorized and issued by a vote of the electors of such county or township, shall be subject to taxation for the payment of such bonds and the interest thereon, in the. same manner as though no such change of boundary lines had been made.
“Sec. 4. It shall be the duty of the county clerk of every county from which any real estate shall be detached, as soon as it shall be determined, to certify to the county clerk of any county to which any such real estate shall have been attached, the per centum of tax to be levied for the payment of any bonds, or interest thereon, issued, as in the last section described; and such tax shall be levied and collected by such last-mentioned county from the real estate so attached thereto, the same as other taxes, and when collected, shall be paid over to the county treasurer of the county to which such taxes belong.” — (Laws of 1873, p. 267, ch. 142.)
Prior to the passage of the act of 1872 detaching said territory, Sedgwick county had subscribed to the capital stock of the Wichita & Southwestern Railroad Company to the amount of $200,000, and had received from the railroad company that amount of stock; and had, in consideration therefor, legally issued to the railroad company $50,000 of the bonds of the county, and had also “signed, executed and placed in escrow” $150,000 more of the bonds of said county “to be delivered to the [said] railroad company whenever they complied with the terms and conditions prescribed in the [said] subscription.” At the time of the passage of said act of 1872 said terms and conditions had not yet been fully complied with, and said $150,000 of bonds had not yet been delivered. But afterward said terms and conditions were fully complied with, and on June 1st 1872 said bonds were duly delivered to said railroad company.
The question now to be considered is, what force and effect has said act of 1873, with reference to the liability of said strip of territory to pay a proportion of the indebtedness created by the issue of said $50,000 of bonds, and said $150,000 of bonds. That is, to what extent does said act apply to this case? and if to any extent, is it constitutional and valid? That that act covers and applies to the indebtedness created by the issue of $50,000 of bonds, we think is clear beyond all doubt. But it is not so clear that the act covers and applies to the rest of said indebtedness. That the $50,000 of bonds were legally issued and delivered to said railroad company prior to any change of boundary lines, we think the evidence sufficiently shows. But it can hardly be said that the $150,000 of bonds were issued prior to that time; and if not, then the act of 1873 does not apply to them. (See § 3 of said act of 1873.) At the time said boundary lines were changed, said $150,000 of bonds were held in escrow, having no force or effect as bonds. And whether such bonds would ever have any force or effect as bonds depended upon a contingency which might or might not happen, and whether it would happen or not, no one could foretell. At the time when said boundary lines were changed no one could tell whether any indebtedness would ever accrue on said $150,000 against said Sedgwick county, or not. • And therefore, as to these bonds, we hardly think the act of 1873 applies. Even if we should assume that a moral obligation rests upon said detached territory to assist in paying said bonds, still we do not think that it would assist the plaintiff in this case, for the courts cannot enforce merely moral obligations where no legal obligation exists. And if there was any such moral obligation the legislature should have known it, and should by unmistakable language have made the act of 1873 broad enough to provide for enforcing it. That is, they should have converted the moral obligation into a legal obligation. But as they did not do so, although they had .the subject under consideration, it would seem that they did not intend that such moral obligation should be enforced. We therefore think that the act of 1873 applies only to the $50,000 of bonds, and to that extent we think the act is constitutional and valid. There is no constitutional provision in this state against retrospective legislation. And therefore; the legislature may in many cases pass retrospective laws to enforce previouslyexisting moral obligations. And we think we have already shown that this is one of such cases, unless some special provision of the constitution can be found interdicting this particular kind of legislation. The only special provision of the constitution supposed to interdict this kind of legislation, to which we have been referred, is that portion of § 1 of article 11 which provides that “The legislature shall provide for a uniform and equal rate of assessment and taxation.” We are inclined to think this provision of the constitution cannot in the nature of things be made to apply to the same extent to exceptional cases like this, as it does to the ordinary cases of assessment and taxation. Wherever and whenever in the nature of things this provision can be made to apply, we think it ought to be made to apply, and it ought to be made to apply to the fullest extent possible. But where in the nature of things it cannot be made to apply, legislation with regard to taxation should not be declared void merely becaue it does not apply to the fullest extent. When a debt is created against a county, all the taxable property therein, real and personal, becomes liable to pay the same. The real estate becomes permanently liable, (except for subsequent legislation,) because ■ the owner thereof cannot remove it out of the county; but the personal property does not become so liable, for personal property may be removed out of the county at any time at the pleasure of the owner. If the legislature should change the boundary lines of any county, and in doing so. should set off a strip of the territory thereof to some other county, then the legislature might at the same time enact that such strip should continue to be liable for the payment of its share of the debts of the county to which it formerly belonged, or the legislature might entirely relieve such strip from all such liability. And it would seem that the legislature ought to have the power to relieve such strip from a portion of such liability, and to continue # 1 i pts responsibility for the other portion. At least, it would seem that the legislature should have the power to say that the real estate shall continue liable, and the personal property not. It would hardly seem that -the detached territory should complain because of such an arrangement, for the taxpayers of the strip would have no more taxes to pay on their real estate in proportion to its value than the taxpayers of the county from which the strip was taken would have to pay on their real estate, and they would have nothing to pay on their personal property. They would have the advantage of the taxpayers of the county in not having any personal-property tax to pay. Not taxing the personal property of the strip, however, makes the tax on all the other property, both of the county from which the strip is taken, and the strip itself, higher than it otherwise would be. But as such a thing would not make the tax void as to the taxpayers of the county, could it make it void as to the taxpayers of the strip? But suppose the personal property of the strip should also be taxed: then must the personal property brought onto the strip after its separation from the county be also taxed ? It was not liable for any debt of the county before the separation. Perhaps if the strip had remained attached to the county it never would have been brought onto the strip, and therefore never would have been liable for any tax or debt of the county. Perhaps the detaching of the strip had a controlling influence in bringing such property onto the strip. Then should such property be taxed to pay such debt? The debt may not be due for thirty years after the detaching; and should property brought onto the strip twenty or thirty years after its separation from the county, be taxed to pay an old debt of the county? These are probably questions for the legislature, and not for the courts. But even if any portion of the personal property situated on said strip should not be taxed to pay said debt, then the uniformity of taxation contended for by the defend ant would be destroyed. Where a strip of territory is detached from one county, and attached to another, and is made liable for a portion of the debts of the county from which it is detached, such detached territory becomes a taxing district of itself for the purpose of raising revenue to pay its proportionate share of said debts; and the tax levied for such purpose in such taxing district should be made as near equal and uniform as in the nature of things and under the circumstances of the particular case it could well be done. A wanton violation of the rule of uniformity in taxation, would probably even in such a case render the taxes void. Where a county is divided, the rule for the division and apportionment of the debts and property between such county and detached territory belongs exclusively to the legislature, and not to the courts; and when the legislature has determined how the debts and property shall be divided and apportioned, the courts cannot interfere.
A peremptory writ of mandamus will issue in this case to ' the defendant, commanding him to place upon the tax-roll of his county the amount of taxes which should have been charged against the real estate of said detached territory for the years 1874 and 1875. The questions with regard to the taxes for the years 1872 and 1873 have been determined in other cases; Sedgwick County v. Bailey, 11 Kas. 631, and 13 Kas. 600; and we shall not reconsider such questions in this case.
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The opinion of the court was delivered by
Brewer, J.:
In September 1873, the plaintiff in error, George Jansen, commenced his action against the city of Atchison and A. G. Otis to recover damages in the sum of ten thousand dollars, by reason of personal injuries received plaintiff on August 10th 1873, through defects in a sidewalk of one of the public streets of the city of Atchison. Jansen alleged that said injuries were occasioned by defendants’ negligently constructing a sidewalk on Commercial street, and by the said defendants negligently permitting the said defects in said sidewalk to continue; and also, from the defendants negligently permitting an old, defective and dangerous sidewalk to .remain and exist. The plaintiff also stated in his petition that the defendant Otis was the owner and possessor of the lot and premises on said Commercial street, in front of which the said defective sidewalk existed at the date of the injuries complained of. The city of Atchison filed its answer, admitting that such city was a city of the second class, and a body corporate and politic, as stated in the petition, but denying the other allegations, statements and averments contained in said petition; and said answer alleged that the damages sustained by the plaintiff were caused by the negligence of the plaintiff and others, for whose carelessness and negligence the city of Atchison was not liable. Otis filed an answer, admitting the ownership of the lot, and alleging that the said premises were at the date of the alleged injury, and for several years prior thereto had been, demised and leased to plaintiff’s mother, who, in connection with the plaintiff, at the time of the accident and for a long . time prior thereto had been in the occupancy and use thereof as tenants of said Otis, having the personal care, supervision, and entire control of said premises, the buildings thereon, and the appurtenances thereto; that under and by the terms of said lease, said tenants were to keep said premises in good repair at said tenants’ expense, and that they received said premises in good repair; and further averring that he (Otis) had no knowledge or information that said sidewalk was unsafe or insecure, and that it was the duty of his codefendant, the city of Atchison, under its corporate powers, to maintain said sidewalk, and that there existed no liability on his part to said plaintiff, and no liability over to said city of Atchison; and that said accident was caused by want of care on the part of the plaintiff, and by negligence and failure of duty on the part of the said city of Atchison. To these answers replies were duly filed, and the case came on for trial. No question was raised as to the joinder of the parties defendant. Indeed, such joinder seems to have been desired by all, that the one action might dispose of all questions growing out of the injury. After the plaintiff had introduced his testimony each defendant filed a demurrer to the evidence, which was sustained by the court, and judgment rendered in their favor and against the plaintiff for- costs.
It is manifest that to sustain this ruling it must appear, either that there was absolutely no liability on the part of the defendants for the injuries sustained by plaintiff — for of the fact of his sustaining injuries there is no question — or, that there was a total failure of proof as to some matter essential to such liability. For if the defendants might under any circumstances be liable for such injuries, and there was testimony tending fairly to establish each fact essential to fix a liability, the party was entitled to a finding as to those facts by the jury, and could not be deprived thereof by an order of the court. The case stands in a different attitude before us from that it would occupy if the jury had passed upon the testimony. Then every conflict in the evidence would be resolved in favor of the result below; now against it.
Counsel for the city has filed an elaborate brief in support of the rulings of the district court, in which he contends — first, that the control and care which a city of the second class in this state exercises over the streets and sidewalks of the city, are by virtue of a power of a governmental character, and that it is not liable to the . private action of an individual for neglecting to exercise such power, or for its imperfect execution, and therefore that the city cannot be liable in this action; second, that the facts of this. particular case do not warrant a recovery in favor of the plaintiff; and third,'that if the plaintiff is entitled to recover, such recovery should not be against the city, but against the defendant Otis. The first proposition is one very sweeping in its reach, and if true gives to cities an immunity from responsibility which to most would seem not only novel, but dangerous. To the support of that proposi tion counsel devotes the major portion of his brief. He reviews the reasons given by courts and writers for imputing liability to cities in cases of this nature, and claims that none of these reasons are sound, and concludes therefrom that a doctrine has become engrafted upon American law which has no foundation in correct legal principles, and should therefore be repudiated. He concedes that this’ court has hitherto seemed to follow the line of adverse decisions, but contends that as no rule of property is involved, but only the construction of powers and liabilities granted and fixed by statute, the doctrine of stare deeisis should not outweigh reason, and that the question should be reexamined and decided in accordance with correct principles. It may be well to see how far this question has been before this court, and the various rullugs thereon. In the case of the City of Topeka v. Tuttle, 5 Kas. 311, the petition alleged that the city negligently left one of its streets out of repair, whereby the plaintiff suffered injury; and on an objection that the petition was insufficient, this court held that it was sufficient. True, no specific objection was pointed out, but the court decided that a petition stating such and such facts, and presenting the very question in issue here, was good. In the case of the City of Atchison v. King, 9 Kas. 550, the question was fairly presented,'and the court held that a city was liable for injuries resulting from negligently-constructed sidewalks, and also from defects subsequently arising and negligently permitted to continue. The same doctrine was recognized in City of Ottawa v. Washabaugh, 11 Kas. 124. In the case of the City of Wyandotte v. White, 13 Kas. 191, a judgment against the city for injuries sustained through a defect in a bridge, a part of the public highway, negligently permitted to continue, was affirmed. In Smith v. City of Leavenworth, 15 Kas. 81, the city was held responsible for injuries resulting from negligence in leaving open and unprotected an area and cellar-way in the sidewalk. See also the case of the City of Leavenworth v. Casey, McCahon’s Rep. 122, decided by the territorial supreme court, in which the city was held responsible for injuries resulting from a negligent construction of a sewer. And in these decisions the court was announcing no new doctrine, but following the almost uniform line of decisions elsewhere. In Dillon on Municipal Corporations, § 789, the law is summed up in these words:
“It may be fairly deduced from the many cases upon the subject, referred to in the notes, that in the absence of an express statute imposing the duty and declaring the liability, municipal corporations proper, having the powers ordinarily conferred upon them respecting bridges, streets and sidewalks within their limits, owe to the public the duty to keep them in a safe condition for use in the usual mode by travelers, and are liable in a civil action for special injuries resulting from neglect to perform this duty.”
Among the many cases supporting this proposition may be named, Weightman v. City of Washington, 1 Black, 39; West v. Brookport, 16 N. Y. 161; Davenport v. Ruckman, 37 N. Y. 568; Norristown v. Moyer, 67 Penn. St. 355; R. & W. H. Township v. Moore, 68 Penn. St. 404. There are many others, but it is unnecessary to burden the records with citations. The supreme court of Michigan by a divided court has ruled °^er way. Detroit v. Blakeby, 21 Mich. 84. We do not care to follow counsel in his discussion oí the reasons given by the various courts in support of this doctrine. It may be that those reasons are not altogether satisfactory. Perhaps if it was a new question, we should be .compelled to hold them insufficient. But we find a doctrine generally recognized in the courts of other states, generally approved by eminent jurists, hitherto followed by this court, and as it seems to us eminently wise and just; and we are unwilling to abandon it because the reasons given for it may not be wholly satisfactory. We concur in the views expressed by Mr. Justice Cooley in his dissenting opinion in Detroit v. Blakeby, from which we quote: “The decisions which are in point are numerous; they have been made in many different jurisdictions, and by many able jurists — and there has been a general concurrence in declaring the law to be in fact what we have already said in point of sound policy it ought to be. We are asked nevertheless to disregard these decisions, and to establish for this state a rule of law different from that which prevails elsewhere, and different from that which, I think, has been understood and accepted as sound law in this state prior to the present litigation. The reason pressed upon us for such a decision is, not that the decisions referred to are vicious in their results, but that the reasons assigned for them are insufficient, so that, logically, the courts ought to have come to a different conclusion. I doubt if it is a sufficient reason for overturning an established doctrine in the law, when its results are not mischievous, that strict logical reasoning should have led the courts to a different conclusion in the beginning. If it is, we may be called upon to examine the foundation of many rules of the common law which have always passed unquestioned.” We adhere then to the rulings heretofore made in this court, as to the liability of a city for injuries resulting from negligence in the care of its sidewalks and streets.
We pass then to the second proposition of the learned counsel for the city; and here he contends that the defect in the sidewalk was a latent defect, and that the city had no notice of its existence or of facts sufficient to put it upon inquiry. If this be true, doubtless the city .g pggpougjb]^ and jf ¿he testimony leaves no question as to its truth there was no error in sustaining the demurrer. This compels some notice of the testimony. The injury happened in this wise: Plaintiff stepped out of the door of a building onto the sidewalk, and as he stepped onto it, it gave way, and he fell through into an area beneath. There was testimony tending to show that this sidewalk was made of cottonwood, and had been built several years; that cottonwood in such a position is liable to decay in a less period than the time this walk had been there; that some of the joists underneath were decayed, and through their rottenness the walk gave way; that shortly before this injury an accident had happened on the walk in front of a near building, and that plaintiff had spoken to the street commis sioner of the city about this walk, and requested him to repair it. It was by ordinance made the duty of the street commissioner “to thoroughly examine from time to time all walks, sidewalks, and to see that they are kept in good repair.” Now it seems to us, that here was testimony which ought to have gone to the jury, and that the court erred in taking the question from them. We do not mean to intimate that a jury ought to find from this testimony that sufficient notice existed to charge negligence upon the city, but simply that here was a question of fact which it was for them, and not the court, to pass upon. And in order to guard against any misconception, we desire to emphasize the „ J ' , J; , 1 fact, that berore the jury may find negligence they must be satisfied that the city had notice of the defect, or had knowledge of facts sufficient to put it upon 'inquiry long enough before the injury to have repaired the walk. Negligence implies some omission of duty. The city must have been in fault. And if it had no knowledge of any defect, or of any facts from which it might reasonably have presumed that there was a defect, it is not to blame, and cannot be said to have been guilty of negligence. On the other hand, though the rottenness of the stringers was not apparent, the circumstances might have been such that a man of ordinary prudence would have expected to find decay, and ought to have made examination. In R. & W. H. Township v. Moore, 68 Penn. St. 404, the defect was in a bridge whose timbers had decayed. The decay was not apparent to a mere outside inspection, but inasmuch as the timbers had stood for such a length of time under such surroundings as would ordinarily produce decay, the court properly held that a failure to make a critical examination was some evidence of negligence. See also, Weisenberg v. City of Appleton, 26 Wis. 56; City of Ripon v. Rittle, 30 Wis. 614; Mersey Docks v. Gibbs, 11 H. L. Cases, 687. In this last case the House of Lords held, “that having the means of knowledge, and negligently remaining ignorant, is equivalent in creating a liability to actual knowledge.”
As .to the third proposition of counsel, it seems to us that the city is liable, whether it have a cause of action over against its eodefendant, or not. The fee of the street is not in the lot-owner, but in the county. Comm’rs Franklin Co. v. Lathrop, 9 Kas. 453; A. & N. Rld. Co. v. Garside, 10 Kas. 552. The control of the street is in the city. The lot-owner has no right to occupy the sidewalk with any improvement, nor to excavate beneath it for any area, or passage-way. (Smith v. City of Leavenworth, 15 Kas. 81.) If the city permits a lot-owner to occupy the sidewalk, or obstruct the free passage over it, or endanger its safety by excavations beneath it, it does not thereby relieve itself from responsibility. It is, as to third parties, the same as though it had done these things itself. In other words, it cannot transfer to private citizens that responsibility which, for wise purposes of public policy, the law casts upon it, in reference to the care and safety of its streets and walks. Was the demurre.r of the defendant Otis properly sustained ? We think it was. The only allegation in the petition pointing toward him was, that he was the owner of the lot and building in front of which the injury occurred. There was no allegation or intimation that the defect in the sidewalk resulted from any negligence or omission on his part. Negligence was charged upon the city, not upon him. So that, unless a lot-owner is responsible for all injuries resulting from a defective sidewalk in front of his lot, the petition stated no cause of action against him. Nor is there anything in the answer of the city of Atchison which discloses a cause of action against him. That simply admits that the city of Atchison is a city of the second class, denies all other allegations of the petition, and alleges that the injury complained of was caused by the negligence of plaintiff and others for whose negligence the city was not responsible. The answer of Otis does not make good the omissions of the other pleadings, nor state any facts tending to show a liability on his part. But passing beyond the pleadings, we do not think the testimony disclosed any liability on his part. It appears that the sidewalk, at the place of accident, was some twelve-and-a-half feet in width; that four or five feet from the building was an area wall. A part of the walk reaching from the curbstone to this wall rested on the ground. The balance on stringers let into the house on the one end, and resting at the other on the wall. This walk over the area was the part that broke. The area was partially filled with dirt, shavings, etc., and (according to the only testimony given thereon) was not and indeed could not be used for any purpose in connection with the building. It did not, according to the plaintiff himself, furnish air to the basement or cellar. Whether it furnished light or not, is not stated; and whether the front of the cellar or basement was walled or boarded up tight, does not appear. There is no testimony tending to show when this wall was built; by whom, or for what purpose. For aught that the testimony discloses, it may have been built there by the city to protect the dirt of the street from washing away, or as a support to the sidewalk, or for any other conceivable purpose. Now, ordinarily an area is supposed to be for the benefit of the adjoining building, for light, air, approach, or storing; and there may be a presumption that it was constructed by the owner, or at his instance, or for his benefit. But when, as in this case, the testimony shows that it was not for the benefit of the building, that it was not for air, approach, or storing, was not and could not be used for any purpose in connection with the building, it does away with any presumption that it was constructed by the owner, or that he is responsible for injuries resulting from it. He has not the fee of the street or sidewalk. He is not to be presumed to be trespassing upon the property of the public. The city has the possession and control of street and walk. Any work done above or below the surface, is presumptively done by it; and for any injury resulting from any obstruction or excavation, it is responsible;'and it has a claim over against an individual only when it appears that such obstruction or excavation was made by the individual, or at his instance, or for his benefit. The liability of the individ ual is no greater because the injury took place on the sidewalk, than if it happened in the middle of the street, or from falling into a sewer rather than into an area. The only principle upon which- the individual can be held responsible is, that the individual caused the injury — not that he owns a lot in front of which the injury was done. So far as the mere fact of a defect in the sidewalk is concerned, neither statute nor ordinance attempted to cast upon the lot-owner the duty of making or repairing sidewalks. An ordinance had been in force requiring lot-owners to keep the sidewalks in front of their lots in repair, but this had been repealed some two months prior to the injury. The only provisions in force authorized the city to make or repair, and to collect the cost thereof from the lots. There is, outside of positive law, no natural obligation on the part of a lot-owner to keep the street or sidewalk in front of his lot in good repair, and no liability for injuries resulting from a failure to do so. Hence, when the city has assumed the entire control of the matter, a failure to repair the sidewalk may be negligence on its part, but is not on the part of the lot-owner who has been ousted from all control. We think therefore, upon the testimony in this case, the demurrer of the defendant Otis was properly sustained. It is unnecessary to inquire what effect the fact that the step-mother of plaintiff, whose clerk and business manager he was, was the lessee of the building with a covenant in the lease to keep the premises in repair, would have upon the liability of Mr. Otis, if it appeared that he had constructed the area, or that it had been done at his instance or for his benefit.
The case therefore will be sent back with instructions to reverse the judgment in favor of the city, and grant a new trial; but the judgment in favor of defendant Otis will be affirmed. The costs in this court will be divided between the plaintiff in error and the city of Atchison.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is, whether the herd law of 1872 was, between December 9th 1872, and January 2d 1873, in force in Dickinson county. The facts are these: On the 20th of March 1872 the county commissioners made the order authorized by the statute, (Laws 1872, p. 384.) They fixed the time for the order to go into effect on April 12th 1872, and directed publication of the order in the “Abilene Chronicle.” The publication was made as required by law, but the affidavit of publication was not made and filed until May 20th 1873, more than a year thereafter, and after the commencement of this suit. Two points are made: It is insisted that the order never went into effect because the time fixed by the commissioners for its taking effect was before the expiration of the four weeks’ publication required; and secondly, that if it ever went into effect, it did not until the affidavit was filed and made a part of the record. The first section of the law.grants to the commissioners the power to make such an order. .The second section provides that the order shall be entered upon the records of the county commissioners, and shall be published for four successive weeks next after the entry on the records, and adds this proviso: “Provided, that the board of county commissioners shall specify a certain time at which said order shall take effect, and that said order shall not go into effect until the completion of the publication aforesaid, * * * which publication * * * shall be verified by the affidavit of the person doing the same, and the said affidavit entered upon the records of the said commissioners.” Was the order in force? We think it was. It went into force at the time of the completion of the publication. The law directs the commissioners to specify the time in which the order shall go into effect. They may specify a time many months after the order, and then, though the publication be completed in four weeks, the order remains inoperative until the time designated arrives. If however they specify a time, as in this case, anterior to the publication, the law steps in and says that it shall not go into effect, notwithstanding the specification' of time by the commissioners, until the completion of the publication, and therefore postpones the operation of the order until that time. In other words, they may 'not by a specification of the time anticipate the completion of the publication, though they may thereby postpone the operation of the order.
In reference to the second matter, the law directs the manner of preserving proof of the publication of the order, but does not make the operation of the order depend upon the preservation of the evidence. It does not say that the order shall not go into effect until the affidavit of publication is entered upon the record, while it does say that it shall not go into effect until the completion of the publication. It makes one thing a prerequisite, and is silent as to the other. By what right do we make both prerequisite? Suppose the legislature should pass a special law affecting only Shawnee county, and should declare that the law should not go into effect until its publication in the “Topeka Commonwealth,” and should also add a direction that the publisher of that paper should file in the secretary of state’s office an affidavit of the publication: would not the law go into effect when the publication was made? That would be the only matter the legislature had specified as a condition of and prerequisite to its going into effect, and the other matter would be simply a direction of the means of preserving evidence of its publication. In other words, the publication, and not the evidence of it, is the vital matter. Foreman v. Carter, 9 Kas. 674.
The judgment will be affirmed.
All the Justices concurring;
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Ida Ward against W. T. Shively, William Crowell, and A. G. McKinsie, for the breach of the condition of a guardian’s bond. Shively was the guardian. Crowell and McKinsie were the sureties on the bond, and Ida Ward was the minor under guardianship. She is now, and was at the commencement of this suit, of full age. The bond-was executed in the name of the state of Kansas as obligee. It is now admitted by the parties that the only question involved in the case is, whether Ida Ward can maintain 'this action in her own name, or whether she must prosecute the same in the name of the state. At common law, all actions on penal bonds had to be prosecuted in the name of the obligee. This was not always so in equity, and it is not generally so under our statutes. In this state the rule is, that actions must be prosecuted in the name of the real party in interest. (Civil Code, § 26.) Every assignee of a chose in action must now sue in his own name. In this state we hear nothing of “John Doe,” and “Richard Roe,” for in óur action of ejectment the real party in interest must sue in his own name. (Code, §§ 595, 26,11.) In an action of mandamus, or quo warranto, an individual person can no longer sue in the name of the state; but he must prosecute his action in his own name. (The State v. Jefferson Co., 11 Kas. 66; Civil Code, § 654; Laws 1871, page 277, § 2; The State v. Bartlett, 13 Kas. 102.) Even a married woman may now sue separately, and in her own name. (Gen. Stat. 563, § 3; Civil Code, § 29.) Indeed, she must do so if she is the only party in’ interest. And for breaches of officers’ bonds, executors’ bonds, and administrators’ bonds, any person injured may sue in his or her own name, although such bonds are executed in the napie of the state as obligee. (Gen. Stat. 468, § 183; Civil Code, §686.) We would therefore expect to find by an examination of the laws that any person injured by a breach of a guardian’s bond would have a right to sue therefor in his or her own name. Such a mode of procedure would certainly seem to come within the spirit of the laws of Kansas. The statutes do not define who shall be the obligee of a guardian’s bond. They provide that “ Guardians appointed to take charge of the property of the minor must give bond, with surety, to be approved by the court, in a penalty double the value of the personal estate, and of the rents and profits of the real estate of the minor, conditioned for the faithful discharge of their duties as such guardian, according to law.” (Comp. Laws, 577, §6; Gen. Stat. 513, §7.) The bond in this case was executed in the name of the state as obligee. Such a bond we think is valid. But it might also be valid if it were executed in the name of the court, or the minor, or some one else, as obligee. The statute also provides with reference to guardians, that “A failure to comply with any order of the court in relation to the guar dianship, shall be deemed a breach of the conditions of the guardian’s bond, which may accordingly be put in suit by any one aggrieved thereby, for which purpose the court may appoint another guardian of the minor, if necessary.” (Comp. Laws, 578, §18; Gen. Stat. 515, §19.) If the minor has become of full age, as in this case, he or she may prosecute the action. But if the minor is still a minor, then “the court may appoint another guardian of the minor” to prosecute the action for him or her. The words, “which may accordingly be put in suit by any one aggrieved thereby,” contained in the foregoing statute, must mean, in the light of all the other statutes, that the breach of the condition of the bond may “be put in suit by” and in the name of “any one aggrieved” by reason of such breach. If they do not mean this, and if such aggrieved person must sue in the name of the state, then we should have a strange and an anomalous exception to our general mode of procedure. And it would be an exception to our general mode of procedure, not only without any good reason therefor, but against reason. The petition in this ease alleges that the guardian failed to comply with an order of the probate court previously made inquiring the guardian to pay over to the plaintiff the sum of $4,231.29, an' amount previously found to be due the plaintiff on final settlement. But suppose the plaintiff has no right to sue in her own name in this action: then how can she obtain her rights ? There is no provision anywhere to be found in the statute giving her or any one else any right to use the name of the state in suing on a guardian’s bond. Indeed, no private action of any kind can be prosecuted in the name of the state. Actions prosecuted in the district court in the name of the state are prosecuted by the county attorney, and they should be public actions. (Gen. Stat. 284, §1361) Actions prosecuted in the supreme court in the name of the state are prosecuted by the attorney general. (Gen. Stat. 986, § 64.) And they also should be public actions. Public .actions and private actions are intended to be kept separate, in this state. Public actions may be prosecuted in the name of the state, county, or other public corporation. But private actions must be prosecuted in the name of the person beneficially interested therein. We except the actions given by chapter 79 of the laws of '1871. These actions are quasi public, quasi private, and come under no rule. The progressive spirit of the present age is to separate public rights from private rights, public actions from private actions, and to give to every person' of full age and sound mind a right to sue and he sued in his or her own name, and to make each person responsible for his or her own acts. It would be a retrograde movement toward the dark ages to require that a private person, for a private right or wrong, in which the state has mo interest, should prosecute his or her action to enforce such right or redress such wrong in the name of the state.
The judgment of the court below is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Wells, J.:
This action was begun by W. B. Homer, assignee of Ripley & Bronson, against A. H. McCormick and the Horton Water Company, to recover $1217.45 claimed to be due plaintiff from defendants for supplies used in the erection of a system of water-works in the city of Horton. In answer, the defendants pleaded payment for all the merchandise purchased by them of plaintiff, but alleged, in' substance, that a certain engine and fixtures were purchased by them of plaintiff’s assignors, as agents for the S.now Steam Pump Works, for $1191.50, on which they had paid $200, leaving a balance due of $991.50, which they were ready and willing to pay, but were prevented from doing so because the plaintiff and the Snow Steam Pump Works both claimed the same and demanded payment thereof. In reply, the plaintiff claimed that said goods were shipped by the pump works to Ripley & Bronson, the assignors of plaintiff, and charged to them, and that they had presented a. claim therefor to the plaintiff as assignee, and had obtained judgment therefor under the assignment-laws of Missouri.
Afterward, by leave of court, the Snow Steam Pump Works, of Buffalo, N. Y., filed its interplea, asking-judgment against A. PI. McCormick for the sum due for said goods and remaining unpaid, alleged to be-$1041.50 and interest, and such other relief as- the court in equity might deem proper. To this interplea, a general denial was filed by the plaintiff. The issues thus formed were tried to a jury, who found a general verdict for the interpleader, and in answer to special questions found that the account of the interpleader was charged by it to Ripley & Bronson ; that the names-of the defendants did not appear on its books, and that a claim therefor was presented to the plaintiff as. assignee and allowed against the estate of Ripley & Bronson. The plaintiff filed his motion for a new trial and for a judgment in his favor on the special answers, both of which were overruled. Judgment-was rendered in favor of the interpleader against A. PL. McCormick, and the case is brought here for review.
That the defendant McCormick owed the money seems to have been conceded by all parties, and the only controversy before the jury or settled by the judgment was whether that money was due the plaintiff or the interpleader, and as .there does not seem to have been any adjudication as to the Horton Water Company, we cannot see how its rights can be affected by any review of this case. There seems to have been. some controversy as to the day on which the service of the case was made, but as the later day was within the time allowed we do not see that it requires any consideration.
Upon the merits, there is just one question requiring consideration : Does the fact that the goods in controversy were charged to Ripley & Bronson and that payment therefor was demanded of them, and that an account including said claim was presented to the assignee and allowed, constitute such an election of remedies as to preclude the claimant from asserting that the goods were sold by Ripley & Bronson as their agents, and that the purchaser was debtor to them therefor? We think it does.' That the recovery sought in the assignment proceeding is inconsistent with that sought in this is too plain to admit of argument, and we find nothing to indicate that the election was made in such ignorance of the facts as to leave the claimant free to make another election. Under the authority of National Bankv. National Bank, 57 Kan. 115, 45 Pac. 79, and authorities therein cited, and of Burrows v. Johntz, 57 Kan. 778, 48 Pac. 27, this judgment cannot be sustained.
The judgment of the district court will be reversed and a new trial of the issues therein directed.
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The opinion of the court was delivered by
Wells, J.:
The facts in this case, as they are shown by the pleadings and stipulations on which it was submitted-to the court below without other evidence, are substantially as follows : On August 20, 1875, the defendants in error, who were the defendants in the court below, conveyed by a general warranty deed to the plaintiffs in error, who were the plaintiffs in the court below, for the consideration of $525, eighty acres of land in Pottawatomie county. The purchasers went into immediate possession of said land and have had the use of it ever since. On January 13, 1890, in an action then pending in the district court of said county, a judgment was rendered dispossessing said purchasers in favor of a paramount title held by other parties. These defendants furnished attorneys to defend said suit and paid the costs thereof. Afterward, on January 11, 1894, a stipulation was entered into between the holder of such paramount title and these plaintiffs, under which it was agreed that the plaintiffs should have credit for $1286.50, the amount paid by the defendants for the title under which they claimed, and interest, and the further sum of $568.75 for betterments, and they should be charged for fourteen years’ rent at $140 per year, amounting to the sum of $1960, and that the balance due the holder of the paramount title, and the rent of the land not included in the foregoing sums, should offset the taxes paid by the plaintiffs and defendants herein. So that by said stipulation the holder of the paramount title took the land free from any liens thereon, the rents offsetting and balancing the claims of these plaintiffs for betterments, taxes paid, and $1236.50, the sum paid, with interest, by these defendants for the sheriff’s deed under which the parties in this case claimed title. Afterward, on December 1, 1893, the plaintiffs herein purchased the outstanding paramount title for the sum of $950, and thus became the full owners of the land and remained in possession thereof.
This action was brought in the court below on February 24,1894, to recover on the covenants' of warranty in the deed first herein referred to, asking judgment for the consideration of said deed,. $525, with interest at seven per cent, per annum from the date of the deed. An answer and reply were filed, and the case was submitted to the court on the pleadings and a stipulation containing some of the facts hereinbefore stated. ■ The court found for the defendants and the matter is brought here for review.
There is no question of fact in the case. The only question is, Do the pleadings and stipulation authorize the judgment? It is claimed by the defendants in error that the plaintiffs had the use of the land for fourteen years, which they stipulated was worth $1960, and two years more, the value of which does not appear, and. as an offset to said rent they received a credit of $1236.50 for money paid by these defendants and interest, and also of $568.75, the value of the betterments, a part of which was made by these defendants, and also some taxes paid by them, the amount of which does not appear ; that all these sums, the benefit of which had gone to the plaintiffs, .should offset any liability of the defendants on their warranty. The supreme court held, in Dale v. Shively, 8 Kan. 276:
“The measure of damages upon breach of the covenant of seisin is, as a general rule, the consideration money and interest. But where the vendee buys in the paramount title, his recovery is limited to the amount he pays therefor and interest.”
In Stebbins v. Wolf, 33 Kan. 765, 7 Pac. 542, it was held:
“Interest upon the consideration money is given to counterbalance the mesne profits which the real owner may recover, and therefore, for such time as the warrantee occupies and enjoys the use of the premises without liability to the owner of the paramount title, no interest is recoverable.
“The vendor of the land held under a tax deed, and, in an action wherein the judgment of eviction was rendered, the vendee recovered from the owner of the paramount title all taxes paid by the vendor, with interest at the statutory rate up to the time of eviction. Held, that the amount so received by the vendee should be allowed to the vendor in reduction of the damages for the breach of his covenant of warranty.”
There are several other Kansas decisions bearing more or less directly on the issues herein, and from them all we think the following rules can be deduced :
1. The measure of damages upon breach of the covenant of warranty is, as a general rule, the consideration paid with lawful interest.
2. Where the grantee has the benefit of the use of the premises, such benefits will offset the interest during the time he has had them without accounting therefor to the successful claimant.
3. Where the vendee buys in the paramount title, his recovery is limited to the amount he pays therefor with interest.
4. Where the vendee recovers from the successful claimant for the taxes, improvements or betterments paid for or put thereon by the vendor, the amount so received should be deducted from the sum that he would otherwise be entitled to recover as damages.
Applying these rules to the case at bar, we find that the plaintiffs would be entitled to recover either the amount they paid, with interest for the time that they were required to account to the successful claimant for the rent of said place, less the amount recovered by them for the liens allowed on account of payments or betterments made by their grantors, or the sum they paid to secure the outstanding paramount title, with interest from the date of said payment to the date of' judgment, whichever is the lesser amount. There is nothing in the record by which these amounts can be accurately and equitably determined. We know what the plaintiffs paid for the original deed and what they paid for the outstanding title. These make their case, and the defendants are required to prove whatever offset they may have thereto. They are probably entitled to some offset for improvements made, taxes paid, or money advanced on the premises, but in the present •condition of the record it is impossible to determine what amount.
The judgment of the district court will be reversed ■and a new trial directed.
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The opinion of the court was delivered by
Schoonover, J.:
The defendant, W. F. Hughes, was charged in the district court of Reno county with violating the prohibitory law. ' The information contained six counts and was sworn to positively by the prosecuting attorney. The defendant was convicted on the first and second counts. After the state had introduced its evidence, the prosecuting attorney elected to rely for a conviction on the first and second counts, on sales of brandy to the witness Jordan Harris in June and July. The defendant placed the county attorney on the stand as a witness in his behalf, and asked him the following questions :
“Ques, Now, then, did you have in mind when drawing the fourth count of this information in case No. 7746 any sales made to Jordan Harris? Ans. I did not.
“ Q. You did not? A. No, sir. I got his affidavit on the 29th day of December last, the first I knew he bought any brandy there or any other liquor.
“By the defendant: We move to strike out the statement that it was the first he knew that he had bought brandy there.
“ By the court: I will strike out the word ‘ knew ’ and let him insert the word ‘ information. ’ With that change I will overrule the motion.
“ Q. Mr. Falk, in drawing the information in the case of State of Kansas v. W. F. Hughes, No. 7828, the case now under consideration, did you have in mind the sales made to Yoder either under the first, second, third, fourth or fifth counts of the information?
“ By the state : I object to the question as leading, immaterial; I have made my election.
“By the court: Objection sustained.
“By the defendant: Except to the ruling of the court.
“ Q. What sales did you have in your mind in drawing the information in case No. 7828, and each count thereof, from 1 to 5, inclusive?
“ By the state : I object, as incompetent, irrelevant, and immaterial.
“ By the court: Objection sustained.
“ By the defendant: Except to the ruling of the court.
“ Q. I will ask you if' you know what sales of alleged sales you had in mind in drawing the first count in the information in case No. 7828?
“ By the state I object, as incompetent, irrelevant, and immaterial.
“ By the. court: Objection sustained.
“By the defendant: Except to the ruling of the court.
“Q,. You may. state what sale you had in mind when you drew and filed this information in this case, in the second count thereof? A. I presume I had the sale according to the election there.
“ Q,. Do you know whether you did or not?
“ By the state : I object, as incompetent, irrelevant, and immaterial.
“By the court: Objection sustained.
“By the defendant: Except to the ruling of the court.”
The refusal of the trial court to require the county attorney to answer these, with other questions of similar import, is complained of. It appears from the record that the name of Jordan Harris, witness, to whom sales were made on which the county attorney elected to rely for a conviction, was indorsed on the information. It further appears that an affidavit was procured by the prosecuting attorney from Jordan Harris on the 29th day of December, and that from the affidavit he obtained information that Harris had purchased brandy from the defendant. The information in this case was sworn to positively by the prosecuting attorney on the 31st day of December, 1897. We cannot say that the substantial rights of the defendant were prejudicially affected by the refusal of the trial court to require the prosecuting attorney to answer the questions complained of. It is evident that the prosecuting attorney had notice or knowledge of sales made to Jordan Harris two days before the information was sworn to. This is sufficient. This court held, in The State v. Etzel, 2 Kan. App. 673, 43 Pac. 798:
“It is not necessary, in a prosecution under the prohibitory law, that the prosecuting witness should have actual personal knowledge of the transactions charged in the information. It is sufficient if he have notice or knowledge thereof,' and had the offenses in contemplation when he verified the information which the witness testified to, and for which the defendant was convicted.”
It is further contended that the trial court erred in permitting the prosecuting attorney to cross-examine his own witness beyond all rules of propriety. The examination of this witness, as it appears in the record, has been examined, and it is apparent that he was an unwilling witness. He appears to have been hostile to the prosecution or to the subject-matter. His answers, in our opinion, were evasive. Reviewing courts have always given to trial courts a wide discretion in such matters, and the rigid rule as to leading questions is relaxed and a more searching mode of examination is permitted. The witness had made an affidavit before the county attorney, his examination on the witness-stand was inconsistent with his statements made in the affidavit, and the trial court permitted the prosecuting attorney to read from the affidavit and then inquire of the witness if he did not make the statements. In the case of Hurley v. State, 46 Ohio St. 320, 21 N. E. 645, the court said :
“A party who calls a witness, and is taken by surprise by his unexpected and unfavorable testimony, may interrogate him in respect to declarations and statements previously made by him, which are inconsistent with his testimony, for the purpose of refreshing his recollection and inducing him to correct his testimony or explain his apparent inconsistency ; and for such purpose his previous declarations may be repeated to him, and he may be called upon to say whether they were made by him.”
In the case of The State v. Tegder, 6 Kan. App. 764, 50 Pac. 985, this court said:
“ It is also contended that the court erred in permitting the county attorney to. ask A. Logan what his testimony had been on the former trial, for the reason that his evidence upon the former trial could not be evidence against the appellant on this trial. These questions were asked the witness for the alleged purpose of refreshing his memory. A glance at the record shows that Logan was a very unwilling witness. The court was justified in allowing the county attorney to ask this witness these questions.”
From a careful review of the record, we are convinced that the defendant was given a fair trial, that he had notice of the offense charged and of which he was convicted, and that no error prejudicial to his legal rights was committed by the trial court. 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 Richard Gerety against Bridget Donahue, Louisa Talliaferro and James M. Honey to have determined the interest of Bridget Donahue in the southeast quarter of section 15, township 6, range 19, and the northeast quarter of the southwest quarter of section 15, township 6, range 19, in Atchison county, and for the sale of such interest in satisfaction of. a judgment which Gerety had previously recovered against Donahue in the sum of $645.84, with interest and costs of suit.
The defendants Donahue and Talliaferro filed an answer, in substance : (1) A general denial; ( 2 ) admitting the ownership of the lands ; • ( 8 ) allegations that by the will of the former owner, Thomas Donahue, since deceased, the lands were devised to Talliaferro, nee Donahue, in fee, subject to a life estate of Donahue and Talliaferro jointly; that the farm was the homestead of Donahue ; that the estate of Donahue, deceased, was involved in liabilities, for the payment of which the lands were rented, and that plaintiff was not entitled to maintain his action for the reason that he had an adequate remedy at law. The reply was a general denial. The defendant Honey made default.
A trial was had by the court without a jury, and the court made special findings of fact and conclu sions of law and rendered judgment for defendants for costs. Plaintiff filed a motion for judgment on the findings of fact, and a motion for new trial, which motions were overruled, and he presents the case to this court for review. The testimony is not preserved in the record, but the case is presented to this court on the pleadings, findings of fact, and judgment.
There are but two questions presented by the record for determination, both of which must be answered in'the affirmative. Does the petition state a cause of action? This action' was brought under section 501 of chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4579), which reads :
‘‘When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he may have in real estate as mortgagor, mortgagee, or otherwise, or any interest he may have in any banking, turnpike, bridge or other joint-stock com: pany, or any interest he may have in any money, contracts, claims or choses in action, due orto become due to him, or in any judgment or decree, or any money, goods or effects which he may have in the possession of any person, body politic or corporate, shall be subject to the payment of such judgment by action, or as hereinafter prescribed.”
The plaintiff Gerety for his cause of action alleged that on the 14th day of October, 1893, by the consideration of the'district court of Atchison county, he recovered a judgment against the defendant Bridget Donahue in the sum of $6,45.84, and costs of suit; that an execution was issued, and returned unsatisfied for want of goods, property, lands or tenements of Donahue out of which the same could be collected; that defendants Donahue and Talliaferro were joint owners of a life estate in the lands with the remainder over to Talliaferro ; that the real estate is a valuable farm, improved and renting for large annual rental; that for the purpose of cheating, defrauding and preventing the plaintiff from collecting his judgment, by a conspiracy between the said defendants, Talliaferro is nominally in charge of the lands, collecting the rents, income and profits, appropriating the same to her own use and to the use of the defendant Donahue ; that the defendaxxt Donahue has an eqxxity in the real property which is liable for the payxnent of plaintiff’s judgment, which can only be sold and applied to the satisfaction of the plaintiff’s judgment throixgh an order and decree of this court; and that all of the defendants are insolvent, except as to the contingent intex-est in the lands hereinbefore described.
The petition shows the defendant Donahue to be a judgment debtor who has no pex-sonal or real property on which an execution can be levied sufficient to satisfy the plaintiff’s judgment, and that she has an equitable interest iix the lands described, and in the rents and profits arising therefrom in the hands of Talliafex'ro. The petition states facts sufficient to bring the parties within the provisions of the statute, and therefore states a cause of action.
Secoxxd. Did the trial court render the proper judgxxxent on the findings of fact. The fixxdings are, in substance, as follows :
Thomas Donahue and Bridget, his wife, who is oxxe of the defendants herein, for years prior to December .17, 1887, owned and occupied as their home the southeast quarter of section 15, township G, range 19, together with the northeast quarter of the southwest quarter of section 15-, township 6, range 19, in Atchison coxxnty, which forty-acre tract adjoins the homestead, the whole forming a body of 200 acx'es. The family consisted of himself, his wife Bridget, and a daughter Louisa. Thomas Donahue died December 17, 1887, leaving a will whereby he devised the real estate to his daughter Louisa, subject to a joint use thereof by Bridget Donahue during her natural life, and subject also to the payment of $1500 to the other heirs. The will was admitted to probate and Louisa was appointed administratrix with the will annexed. The estate is now in process of administration, and is indebted to a considerable extent. Gerety, the plaintiff, on October 14, 1893, procured a judgment against Bridget Donahue in the district court of Atchison county for the sum of $645.84, and for -costs, no part of which has been paid; and an execution was issued on the judgment before this suit was brought, and returned unsatisfied, for the want of property whereon to levy. Prior to the death of Thomas Donahue, he-rented the farm to two young men for a term ending March 1, 1893; the tenants occupied a part of the dwelling-house, Bridget Donahue and her daughter Louisa occupying the other part. The defendant-Donahue never surrendered the house or abandoned the farm as her home. Louisa Donahue, now Talliaferro, occupied the dwelling with her mother until August, 1889, when she, with her husband, removed to other lands not far away. The defendant Donahue nursed her codefendant Talliaferro, at the latter's home, during a sickness, from September, 1889, until the spring of 1890, when she returned to her own home. At that time a Mrs. Asher, widowed daughter of Donahue, with her son, made her home with the defendant Donahue until the summer of 1891. The defendant Donahue has ever continued to live at the old home, occupying it as her homestead. Sometimes she visits her children and then returns to. her home. The defendant Talliaferro has collected the rents of the farm from March 1, 1888, including 1893, in the sum of about $2400, and has regularly accounted to 1 lie defendant Donahue for one-half thereof. In March, 1893, the defendant Donahue and Talliaferrorented the farm one year to their codefendant, Honey,, for $450, for which he gave one note due October, 1894,. for $225, and one note due December, 1894, for $225,, payable to Louisa Talliaferro as administratrix. Honey was given the possession of the house, except one room, which was reserved for Donahue as her home, and in 'which she stored her furniture and household goods for the purpose of such occupancy, and since that time she has visited from time to time among her children, returning to her home at intervals, and always intending to hold the same as a home and dwelling-place. In March, 1894, Talliaferro sold, transferred and negotiated the rental note of Honey first falling due and turned the proceeds thereof over to Donahue for her support. The defendants Talliaferro and Honey did not jointly or severally, at the commencement of this suit, or at any time since, have in their hands or under their control any money, property or effects belonging to their codefendant Donahue.
The trial court properly rendered judgment on the findings of fact for the defendants. The interest of Donahue in the property was undetermined, contingent, and remote, and the plaintiff could take nothing by reason of his suit on the findings.
The judgment must be affirmed.
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The opinion of the court was delivered by
Milton, J.:
Whether or not Curns & Manser were authorized by A. F. Alexander, as his agents, to collect a debt evidenced by a note and mortgage from Jacob Binkey and wife, was the principal question presented by the pleadings and tried and determined by the court. The petition filed by J. M. Alexander prayed for a perpetual injunction restraining the sheriff of Cowley county from selling a certain tract of land then owned by the plaintiff under a foreclosure judgment in favor of A. F. Alexander and against the Binkeys. A good cause of action was stated in the petition. The court found that all the allegations of the petition were true ; that those of the answer were not supported by the evidence ; that the judgment against the Binkeys under which the land was about to be sold had been assigned to the plaintiff by Curns Manser, who were the agents of A. F. Alexander to collect tliedebtdue under the B inkeynote and mortgage, as alleged by the plaintiff; and granted the perpetual injunction as prayed- for. It appears that, although J. M. Alexander paid to Curns & Manser the full amount of the said judgment in favor of A. F. Alexander, no part of the money was paid over to the latter by Curns & Manser.
Plaintiffs in error ask leave to amend the petition in error by. inserting an allegation with an exhibit thereto respecting the written assignment of the judgment, which at the time of the trial could not be found and has been discovered since the petition in error was filed. The amendment cannot be allowed, as it .involves the amendment of a case-made after the same was filed in the appellate court. (Suavely v. Buggy Co.,. 35 Kan. 106, 12 Pac. 522.)
We think the court admitted improper evidence over the objection of defendants below, but we find competent and unobjectionable evidence covering the same ground. We therefore hold that the admission of the improper evidence was not reversible error.
In the action in which A. F. Alexander obtained his judgment of foreclosure against the Binkeys, two other mortgages were foreclosed, all covering the same real estate. The land was sold under a judgment in favor of Frances Kelley and was purchased by J. M. Alexander, who was a judgment debtor under the Kelley judgment. A. F. Alexander’s judgment was a first lien on the land. In the decree confirming the sale it was .stated that J. M. Alexander was the "present owner and assignee of the judgments heretofore rendered in. said action first above entitled-in favor of Jacob Binkey and A. F. Alexander respectively.” It thus appears-that the matter .of the assignment of the judgment had received an adjudicad tion prior to the commencement of the present action.
The record contains a large number of letters written by A. F. Alexander to Ourns & Manser. These letters show that Alexander repeatedly urged Ourns ■& Manser to make collection of the mortgage debts due him ; that he desired them to foreclose mortgages owned by him ; that he knew the Binkey mortgage was being foreclosed ; and that he was expecting the proceeds thereof to be remitted to him by Ourns & Manser. The evidence of agency on the part of the latter to collect the Binkey note and mortgage is ■stronger than that declared sufficient in the case of Shane v. Palmer, 43 Ivan. 481, 23 Pac. 594, to show ■authority of T. C. Henry & Go. to collect money due from a mortgagor. In our view it is immaterial that the agents assigned the judgment- in favor of their ■principal, instead of releasing such judgment. Other matters discussed by counsel do not require special mention.
The judgment of the trial court is supported by ■competent evidence and will be affirmed.
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The opinion of the court was delivered by
Dennison, P. J.:
The appellant Jackson was convicted in the police court of the city of Eureka, and also on appeal in the district court of Greenwood county, of violating ordinance No. 124 of the city of Eureka. He appeals to this court, and the only ques tion raised is the validity of the ordinance, which reads as follows :
“ordinance no. 124.
“An ¿Ordinance regulating the sale of hop-tea tonic, and all other liquids containing alcohol, sold and drank as a beverage, except for medical, scientific and mechanical purposes, within the corporate limits of the city of Eureka, Kansas,, and fixing a penalty for the violation thereof.
“Be it ordained by the Mayor and Councilmen of the City of Eureka, Kansan:
“Section 1. It shall be unlawful for any person or persons, company or corporation, in this city to either directly or indirectly sell, barter, or give away, in less quantities than one gallon at one sale or delivery, what is known as hop-tea tonic, spirituous, malt, vinous or fermented liquors, or any other liquid of any kind or character, containing alcohol in any quantity, which is or may be drank as a beverage, or permit or allow the same to be drank at any store, stand, or place of sale, or in the same building where said hop-tea tonics, spirituous, malt, vinous or fermented liquors, or liquids containing alcohol, are sold, bartered, or given away ; provided, that nothing herein shall repeal any part of ordinance No. 95, entitled ‘An ordinance to prohibit the sale of intoxicating liquors within the corporate limits of the city of Eureka except for medical, scientific and mechanical purposes, and to-repeal all ordinances in conflict with this ordinance.’ Said ordinance passed by the mayor and councilmen November the 10th, a. d. 1891; provided further,- that nothing herein shall interfere with the sale of malt, vinous, spirituous and fermented liquors where the persons, for selling the same, have complied with the laws of the state of Kansas by taking out a druggist’s permit for the sale of intoxicating liquors. Any person violating the provisions of this ordinance shall be deemed guilty of a misdemeanor, and be fined in any sum not more than seventy-five dollars nor less than fifteen dollars, together with the costs of prosecution, for each and every offense, and stand committed to the city prison until such fine and costs are paid in full.”
The ordinance No. 95 referred to in ordinance No. 124 in substance is a reenactment of the prohibitory-law of the state, except that the penalties for the violation thereof differ somewhat. Jt is contended that ordinance No. 124 is invalid for the reason that it is inconsistent with the prohibitory law and repugnant to the constitution of the state.
An examination of the ordinance satisfies us that it was not enacted for the purpose of regulating the sale of intoxicating liquors, for the reason that it specially refers to ordinance No. 95, which does regulate the sale of intoxicating liquors, and provides that nothing therein shall repeal any part of said ordinance No.'95. It was evidently intended to regulate the sale of all liquids sold or drunk as a beverage which contain alcohol in quantities not sufficient to render them intoxicating. This they had the authority to do. (Monroe v. City of Lawrence, Kan. 607, 24 Pac. 1113.)
If this ordinance by inference attempts to authorize the sale of intoxicating liquids in quantities of over a gallon at each sale, then so much of the ordinance is invalid. The title to the act and in fact the act itself are in terms somewhat broader than was probably intended by the city council, but we do not understand that this invalidates the whole ordinance. The subject On which the council had authority to enact will be upheld. Of course the city can prohibit the sale of intoxicating liquors, but it cannot regulate or allow their sale except in harmony with the constitution or statutes. If the appellant was convicted of selling; such liquids as are mentioned in the ordinance and. which were non-intoxicating, he was properly convicted.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
The appellant was charged, tried and convicted on one count in the district court of Harvey county with the violation of the prohibitory .law. The information was sworn to positively by the county attorney, and, omitting the caption, is as follows :
“I,W. S. Allen, the undersigned county attorney of said county, in the name, by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed, that on the 25th day of August, a. d. 1897, in said county of Harvey and state of Kansas, one J. A. Snyder did then and there, unlawfully, without having taken out a permit from the probate judge of said county, bargain, sell and give away intoxicating liquor, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Kansas.”
The first and second assignments of error are that the court erred in overruling the motion to quash the information and in overruling defendant’s motion to require the prosecution to file with the information a bill of particulars. In support of these assignments, our attention is called to the case of The State v. Burkett, 51 Kan. 177, 32 Pac. 925. In this case there were no words used in the information negativing the exception clause in the statute, and the rule stated by Justice Allen cannot be applied to the information in the case now under consideration. The information set forth in this opinion is sufficient. The objections of appellant are covered by the following decisions of our supreme court: The State v. Whisner, 35 Kan. 271, 10 Pac. 852; The State v. Schweiter, 27 id. 500; The State v. Lindgrove, 1 Kan. App. 51, 41 Pac. 688.
It is further contended that the trial court erred in permitting the county attorney to cross-examine the defendant as to his conduct with reference to handling liquor at any other time than the sale alleged as shown by the witnesses for the state. We have examined the evidence, and cannot say that there was error of law or abuse of discretion in the cross-examination permitted by the trial court. It is well settled in this state ' ‘ that where a defendant in a criminal prosecution has offered himself as a witness in his own behalf he may be cross-examined to the same.extent as any other witness.” (The State v. Lewis, 56 Kan. 374, 43 Pac. 265.)
The only witnesses introduced by the state were two detectives, Pinneo and Dobson, from St. Joseph, Mo. Pinneo testified that he had’been in the secret service between thirty and thirty-five years, that be came to Newton at the request of the county attorney for the purpose of finding out who was selling liquor, that he was in the employ of the county attorney, and that he was to receive three dollars a day and all expenses from the time he left home until he returned there. Dobson testified that he was doing detective work under the direction of Pinneo. The trial court gave the following instructions :
“11. The defendant is a competent witness in his own behalf, but in determining the weight to be given to his testimony you have a right to consider his interest in the result of the suit as the defendant charged with the commission of the offense.
“ 12. The jury are the sole and exclusive judges of all the facts in the case and of the credibility of the witnesses; you have the right, in determining the weight and value of the evidence, to take into consideration the feelings, motives, passions and prejudices of the witnesses, their interest • in the result of the suit, where any is shown, their memory and knowledge of the things about which they testify, their manner on the witness-stand while giving their testimony, .and every fact and circumstance in evidence and occurring at the trial which tends to contradict or corroborate any witness, and then give to the several parts of the evidence such weight as they seem to merit.”
Counsel for appellant requested the court to give the following, which was refused :
‘‘Detectives are as competent to testify as other witnesses, and should be treated accordingly ; but you are instructed to closely scrutinize' the testimony of any one who may have acted in the transaction in question as a detective, and who may appear to have a motive for testifying to illegal sales when none in fact may have been made.”
The court having especially called the jury’s attention to the testimony of the defendant, and the rule for determining the weight to be given it; a fair trial demands that the rule for determining the weight to be given the testimony of professional detectives in the employ of the prosecuting attorney and on whose testimony he relied for a conviction, should also be given. It was not necessary for the trial court to give the special instruction in the language submitted, but the principle contained in the instruction refused should have been given or more fully stated in the general charge. It was a matter of law necessary for the information of the jury .in giving their verdict. In the case of The State v. Keys, 4 Kan. App. 15, 45 Pac. 728, Judge Garver said:
, ‘‘We think all that was either proper or necessary to be said to the jury upon that matter was covered by the general charge. In it the jury was instructed closely to scrutinize the testimony o.f any one who acted in the transaction as a detective or spotter, and who may have a motive for testifying to illegal sales when none was in fact made.
“The jury was also given the usual general rules for their guidance in weighing the testimony of the witnesses and in determining their credibility. There is little, if anything, in this case upon which to base the instruction asked.”
If the general charge in the case under consideration contained language of equal force or import it would have been sufficient. The principle of law relating to the testimony of detectives, having been called to the attention of the court, should, under the circumstances, have been given in a special instruction or more fully stated in the general charge.
The judgment of the district court is reversed and a new trial awarded.
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The opinion of the court was delivered by
Schoonover, J.:
The question involved in this case is, Oan the district or superior court trying a case involving less than $100 certify to the court of appeals that the case is one belonging to the excepted classes more than one year after the rendition of the judgment or making of the final order complained of ? Paragraph 4657, General Statutes of 1889 ( Gen. Stat. 1897, ch. 83, § 11), provides :
“ No proceeding for reversing, vacating or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment or making of the final order complained of.”
Paragraph 4642, General Statutes of 1889 (Gen. Stat. 1897, ch. 83, § 9), provides :
‘ ‘ No appeal or proceeding in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed $100, except in cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States, and when the judge of the district or superior court trying the case involving less than $100 shall certify to the supreme court that the case is one belonging to the excepted classes.”
It has been held repeatedly by the supreme court and the courts of appeals of this state that the record must affirmatively show that the reviewing court has jurisdiction or the case will be dismissed. In the case of Loomis v. Bass, 48 Kan. 26, 28 Pac. 1012, the supreme court said :
“Under paragraph 4642, General Statutes of 1889, the record brought to this court must affirmatively show that the court has jurisdiction, or the case will be dismissed. Such jurisdiction can be shown by making the record show that the amount or value of the controversy exceeds $100, or by incorporating therein a certificate of the district judge showing that the case is within the exception of such statute.”
This court held, in the case of Clark v. City of Ottawa, 1 Kan. App. 304, 40 Pac. 1070:
“The record brought to this court must affirmatively show that the court has jurisdiction, or the case will be dismissed. And when the record shows that the amount or value in controversy is less than $100, there must be incorporated in the record a certificate of the district judge showing that the case is within the exception of the statute ; and a mere statement to that effect, signed by the judge and affixed to but .forming no part of the record, confers, no jurisdiction on this court.” .
In the case of A. T. & S. F. Rld. Co. v. Anderson, 5 Kan. App. 707, 49 Pac. 108, this court held:
“ The certificate of the judge of the district or superior court required by section 542a of the code, where the amount involved is less than $100, to confer jurisdiction, must be incorporated in the record presented to this court.” (See also Preston v. Barber Asphalt Paving Co., 49 Pac. 97; Sparks v. Sparks, 6 Kan. App. 750, 50 Pac. 973.)
The amount involved in this case is less than $100, and there is not “incorporated therein (in the record) a certificate of the district judge showing that the case is within the exception of the statute.” Counsel contend that this certificate may be made at any time, and that the reviewing court may permit the required certificate to be made more than one year after the rendition of the judgment or making of the final order complained of. Our supreme court has said .that this certificate should be incorporated in the record. If it forms a part of the record, it should be incorporated therein before the case passes beyond the control of the trial judge — before the case is settled and certified by the judge trying the case. In the case of Lewis v. Linscott, 37 Kan. 379, 15 Pac. 158, the supreme court said :
“When a case-made for this court has been signed and certified by the judge of the district court who tried the case, it has passed beyond his control, and cannot thereafter be amended, altered or changed by any order he may make.”
In the case of Graham v. Shaw, 38 Kan. 734, 17 Pac. 332, it was held :
“Neither the judge of the district court nor the supreme court can amend or add to a case-made for .the supreme court after it has been settled, signed, and attested.” (See also Lumber Co. v. Tomlinson, 54 Kan. 770, 39 Pac. 694.)
The trial judge performs a judicial act when he settles, signs and certifies a case-made. (Mutual Ins. Co. v. Sackett, 5 Kan. App. 668, 48 Pac. 994.) The same may be said of the certificate, required by section 542a óf the code (Gen. Stat. 1889, ¶ 4642, Gen. Stat. 1897, ch. 83, §9). The judge of the district or superior court trying the case must determine that less than $100 is involved, that the case involves the tax or revenue laws or the title to real estate, or that the action is one for damages in which slander, libel, malicious prosecution or false imprisonment is declared upon, or that the case involves the constitution of this state or the constitution, laws or treaties of the United States. After the judge has tried the case, if he determines and certifies that the case is one belonging to the excepted classes, the certificate confers jurisdiction.
The writer is of the opinion that the better practice requires that the certificate designate the excepted class to which the case belongs and the particular question involved in the trial of the case. Our supreme court has gone so far as to say that “ no other question can be considered than the one assigned in the certificate of the judge.”' In the case of Mo. Pac. Rly. Co. v. Kimball, 48 Kan. 384, 29 Pac. 604, the court said :
“Where a case is brought to the supreme court upon the certificate of the district judge that there is a constitutional question involved in the action, and the amount sued for is less than $100, exclusive of costs, no other question can be considered than the one assigned in the certificate of the judge. . . .”
In the opinion it is said that
“ The object of the law was to limit appeals and proceedings in error, where the amount in controversy did not exceed $100. The legislature made certain exceptions, such as cases covering tax or revenue laws, or where there was a constitutional question to be settled. The supreme court obtains jurisdiction of this case through the certificate of the district judge that there is a constitutional question to be determined. Our jurisdiction is limited to that question.”
If in cases involving less than $100 the certificate of the judge of the district court trying the case is necessary to confer jurisdiction ; if the record must affirmatively show that the reviewing court has jurisdiction ; if this can be shown “ by incorporating therein (in the record) a certificate of the district judge showing that the case is within the exception of such statute” ; if “no other question can be considered than the one assigned in the certificate of the judge” ; if “neither the judge of the district court nor the supreme court can amend or add to a case-made for the supreme court after it has been settled, signed, and attested,” then this court extended the time for making and filing the certificate as far as the authorities in this state will permit when it said : “ It is clearly intended that the certificate of the judge of the district court, required by section 542a of the code where the amount involved is less than $100, should be made at the time of, or prior to, the settling of the case-made. It must be incorporated in the record, that all parties may know what their rights are ; it confers jurisdiction ; it becomes the basis of an appeal.” (A. T. & S. F. Rld. Co. v. Anderson, 5 Kan. App. 711, 49 Pac. 109.)
In the case under consideration, the judge trying the case may have intended to make the certificate, but it never was made. Now, after more than one year from the date of the rendition of the judgment, the defendant in error files his motion to dismiss, alleging that the amount involved is less than $100, and that the judge of the district court trying the ease has not certified that the case is one belonging to the excepted classes. The plaintiff in error asks this court to be permitted to file with and attach to the case-made the certificate of the judge trying the case that it is one belonging to the excepted classes. As we view the authorities, the record cannot be amended in this manner.
The motion to dismiss is sustained.
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The opinion of the court was delivered by
McElroy, J.:
This action was instituted by A. B. Mayfield, a physician and surgeon, against George B. Abbott, in justice’s court, to recover $221, claimed to be due for professional services. The plaintiff alleged in his bill of particulars that at the special instance and request of the defendant he rendered professional services as a physician and surgeon in the care and treatment of "the wife of the defendant; that he furnished her medical and surgical treatment, nursing, lodging and board to the value of $309, on which amount there was a balance due of $221. The defendant filed for his bill of particulars his affidavit, in which he “denies the correctness of plaintiff’s account and each and every item thereof, and denies that he]|is indebted to plaintiff on said account in any sum whatever.’’ On the issues thus formed a. trialjwas had and the case appealed. A trial was had in the district court, which resulted in a verdict for- plaintiff for $130. The defendant filed Ms motion for a new trial, which was overruled, and presents the case to this court for review.
The plaintiff in error alleges that the trial court erred, first, in admitting incompetent testimony. The contention is that the court erred in admitting the testimony of Doctor Miller as to the value of the medical service after the performance of the surgical operation. We are referred to the record, but an examination of it fails to support the contention. The question asked was : “Now, add to that the care of the patient for twenty days, or twenty-two days; then what would you say as to the value of that operation?” The question was not answered. Complaint is also made that the court improperly admitted a letter written by Abbott to Miss Riggs. We are unable to say that the letter offered was either irrelevant or immaterial. It was introduced in evidence without objection, and there was no motion to strike it out. An objection to evidence, to be available, must be made in the trial court.
The second assignment is that the court erred in ruling out competent testimony offered by the plaintiff in error. The complaint here made is that the court sustained an objection to the following question put to Doctor Mayfield : “ Now, as a matter of fact the operation did not do her any good, did it? ” The witness had been recalled and questioned with reference to certain subjects only, and on cross-examination the question of which complaint is made was put to him. The objection was that the question was not proper cross-examination. There was no direct examination of the witness as to the surgical operation, or its effect on the patient. The court very properly sustained the objection for the reason assigned.
It is next alleged that the court erred in refusing to submit to the jury two instructions as requested. The first instruction contained a definition of malpractice, as follows : ‘‘ Malpractice, in law, means bad or unskilful practice in' a physician ; it may occur from neglect or ignorance.” Anderson defines it as “unskilful treatment by a physician or surgeon, in consequence of which the patient is injured more or less seriously, perhaps permanently.” The definition as set out in the instruction was not sufficiently comprehensive. It confines malpractice to the physician, and fails to conclude with the resultant injury to the patient. The second instruction requested and refused, of which complaint is made, reads : “If you find from the evidence that the plaintiff was guilty of malpractice, either in his diagnosis of Mrs. Abbott’s case, or in the-administering of medicine, or in the surgical operation performed,'then in either case he would not be entitled to recover in this case for such services.” This was a correct statement of the law applicable to the case and was not covered by the instructions given by the court. The refusal to give this instruction was prejudicial error for which a new trial should have been granted.
It is further complained that the trial court erred ia instructing the jury as to what the plaintiff claimed in his bill of particulars. It is contended that there was no statement or allegation in the bill of particulars to justify a recovery for medical treatment after the performance of the surgical operation. There is no merit in this contention. The court, we think,, very fairly set out the contentions of the respective-parties, and properly instructed the jury, so far-as the instructions went. This appears to have been the opinion of the plaintiff in error in the trial court; he neither objected nor excepted to the instructions as given, and of course cannot predicate error thereon.
For refusing to give the second instruction as requested by the plaintiff in error, the judgment of the court below will be reversed and a new trial directed.
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The opinion of the court was delivered by
McElroy, J.:
The plaintiffs in error, Ferdinand Westheimer & Sons, conduct a wholesale liquor .busi ness at St. Joseph, Mo. In 1893 an agent of plaintiffs in error, who resides in Missouri, came to Leavenworth, Kan., called on the defendant, solicited and secured an order from the defendant for a barrel of whisky, subject, however, to the approval of plaintiffs in error at their place of business. Thereafter the plaintiffs in error approved the order, selected the barrel of whisky from their stock, and delivered it on board the cars at St. Joseph, consigned and addressed to the defendant at Leavenworth; The railway company carried the whisky to Leavenworth, where it was delivered to the defendant, who paid the freight thereon. When the account matured the defendant refused to pay the bill, and this action was brought to recover the purchase-price of the liquor. A trial was had, which resulted in a verdict for the defendant. A motion for a new trial was filed and overruled, and the plaintiffs in error present the case to this court for review, and allege that the trial court erred : (1) In instructing the jury in the manner it did at the trial; (2) in overruling the plaintiffs’ motion for a new trial; (3) in applying paragraph 2550 of the General Statutes of 1889 (^Gen. Stat. 1897, ch. 101, § 32) to the facts in this case. They contend that paragraph 2550 is not valid or constitutional as ■applied to non-resident agents of non-resident firms— that is to say, those who reside and do business outside the state of Kansas, and who solicit orders therein for the sale of intoxicating liquors — for the reason that it would be an infringement and an encroachment on the right to regulate interstate commerce, which is within the exclusive jurisdiction of congress, and that the trial court erred in holding otherwise.
The record, the assignments of error and the in struction of which complaint is made present but one question, and that is on the validity of paragraph 2550 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 101, § 32). The instruction of which complaint is made reads:
“If the jury believe from the evidence that the defendant Weisman was engaged at Leavenworth, Kan., in the unlawful sale of intoxicating liquors at the time of the transaction with the plaintiffs ; that the plaintiffs reside and conduct a wholesale liquor business at St. Joseph, Mo., being authorized under the laws of Missouri so to do ; that the plaintiffs sent their agent, who also resided in Missouri, into Kansas to solicit orders for the sale of liquors ; that the agent called upon the defendant at Leavenworth, Kan., and secured from him an order for the barrel of whisky at the price sued for, subject to the approval of the plaintiffs at St. Joseph, who thereafter approved the same in Missouri, selected the barrel of whisky from their stock there, and delivered it on board the cars at St. Joseph, Mo., addressed to the defendant at Leavenworth, and the railroad company afterward transported the same to the defendant at Leavenworth, Kan., and he paid the freight charges to the railroad company, in such case you should find for the defendant.”
The instruction was given on the theory that the plaintiffs in error procured the order for the liquor and consummated the sale in violation of law, and for that reason should not be permitted to profit by such unlawful act.
Paragraph 2550, General Statutes of 1889, reads :
“Any person who shall take or receive any order for intoxicating liquors from any person in this state, other than a person authorized to sell the same as in this act provided, or any person who shall directly or indirectly contract for the sale of intoxicating liquors with any person in this- state, other than a person authorized to sell the same, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished therefor as provided in this act for selling intoxicating liquors.”
Under this statute both the soliciting of an order and the making of a contract of sale are misdemeanors.
The plaintiffs in error contend that this statute is either inapplicable to the case at bar, or that it is unconstitutional so far as the same prohibits the soliciting of orders by non-residents; that in this respect the act attempts to regulate or restrict interstate commerce. This contention is not tenable. The purpose of the act under consideration was to resti’ict the sale of liquors, and this may be lawfully done, although interstate commerce may be thereby incidentally affected. (Missouri, Kansas & Texas Railway v. Haber, 169 U. S. 613, 18 Sup. Ct. 488; Plumley v. Massachusetts, 155 U. S. 461, 473, 15 Sup. Ct. 154; Geer v. Connecticut, 161 U. S. 534, 16 Sup. Ct. 600.)
The plaintiffs-do business in St. Joseph. Their soliciting agent is also a resident of that state. He came to Kansas and procured an order of Weisman for intoxicating liquors, and the order was transmitted to the plaintiffs for approval or rejection. The order was approved, the liquor was selected from their stock in that state, consigned to the defendant, and placed on board the cars there to be transported to his place of business at his expense. The goods were received by the defendant at his place of business in Kansas, and he paid the freight thereon. The soliciting of the order was a violation of the letter and spirit of the statute. The section under consideration is a valid police regulation, and is not an infringement on the rights of congress to regulate interstate commerce.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wells, J.:
On June 8, 1893, the defendants in error, Durst & Logeman, began an action in the district court of Atchison county against Alfred P. Beckman for the recovery of $100.80 debt and interest, and an attachment was on the same day duly issued and levied on a part of a town lot in Atchison, the title to which was at that time in litigation in the same court, in an action in which Susan Beckman was plaintiff and Alfred P. Beckman was defendant. 'In this last-mentioned action the property was afterward sold by proceedings in partition and the share of the proceeds thereof belonging to said Alfred P. Beckman was brought into court and held to await a final determination 'of the conflicting claims thereto. On June 10, 1893, a summons was issued in this case, addressed to the sheriff of Logan county, Oklahoma, and was served on Alfred P. Beckman on June 19, 1893, and returned to the court whence it issued on June 22, 1893. This service and summons were on December 16, 1893, vacated and set aside for the apparent reasons that it was directed to the sheriff of Logan county, Oklahoma, instead of to the defendant, as required by law, and was served by a copy instead of the original, and the defendant was allowed only fifty-nine instead of sixty days from the time of service in which to answer. Afterward said defendant was legally served by publication, the notice thereof being first published on January 1, 1894, and on May 15, 1894, judgment was duly rendered thereon for $146.35 with interest and costs in favor of said Durst & Logeman and against Alfred P. Beckman. On December 11, 1893, Alfred P. Beckman and wife deeded said lot to Simon Koffier, and on March 1, 1894, Simon Koffier mortgaged it to Byron R. Baker for $750. On August 20, 1894, Byron R. Baker assigned the Koffier mortgage to Lena Baker, and she, on December 10, 1894, assigned it to this plaintiff in error, O. M. Wellsford.
On these facts the court found as a conclusion of law that the Alfred P. Beckman interest in the lot had been assigned to C. M. Wellsford, subject to the attachment liens of Jackson & Jackson and of Durst & Logeman, and made its decree accordingly. To reverse this decree establishing the validity of the lien of Durst & Logeman, the case is brought to this court for review.
There is just one question in this ease : Does a defective service of a defective summons, which is afterward set aside by the court, constitute a service of summons as contemplated by section 81, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4164), so as to charge third persons with notice of the pendency of the action? It seems to us that the reasoning in the opinion in the case of Insurance Co. v. Stoffels, 48 Kan. 209, 29 Pac. 479, is exactly in point and conclusive of this question :
“ The record shows the filing of a petition, the issuance and service of a summons on the 7th of Ma}, 1888, between the same parties ; but it also shows that, on motion of the defendant company, the summons and the service thereof were set aside by the court, and, so far as this court knows, without any objection or exception on the part of the plaintiff below. There having been no objection to the action of the court below in setting aside said summons and service, and no exception thereto and no appeal having been taken from the order of the court therein, the judgment of the court thus expressed settled the law of that case and the plaintiff in error cannot now question it. After the summons and service thereof were set aside by the court below, there was nothing left in that court except the petition and precipe, and the case stood then as though there never had been anything done therein except to file a petition and precipe ; and it will not be pretended that the mere filing of a petition and precipe constitutes the commencement of an action.”
In the case at bar there was an order of attachment issued and levied and there was an exception saved to the order setting aside the summons, but it was held in Travis v. Supply Co., 42 Kan. 625, 22 Pac. 991, that an attachment of real estate does not bring the property itself into the custody of the law, and the fact that the defendant excepted to the finding of the court setting aside the summons, but took no proceedings to reverse the same, does not prevent that ruling from becoming the law of the case. We are therefore of the opinion that as regards the doctrine of lis pendens, when the summons and the service thereof were set aside, the case stood just the same as if the summons had never been issued or attempted to be served.
In Kincaid v. Frog, 49 Kan. 766, 31 Pac. 704, it was held that in attachment proceedings, where no service of summons is had within sixty days from the filing of the petition, the attachment falls and the land so attached may be conveyed free from any lien on account of such attachment. It therefore follows that the court below erred in its conclusions of law as to the validity of the attachment lien of the defendants in error, Durst & Logeman, and said court is directed to modify its conclusions of law hereinbefoi'e found and to order the distribution of the funds in its'hands after the payment of the lien of Jackson & Jackson to the plaintiff in error, C. M. Wellsford. The costs in this case are taxed to the defendants in error.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought in the court below by Fletcher & McChesney against Lingren to recover damages by reason of his failure to furnish the labor and material in the building of a two-story business house with an addition. The petition states that the plaintiffs and defendant, on March 22, 1896, entered into a contract in writing by which defendant agreed to erect a two story-and-basement house, according to plans and specifications, and to furnish all the labor and materials therefor, in consideration of $3300; that about the time the foundation of the the building was completed, the parties entered into a second contract in writing, by which the defendant agreed to construct an addition to the building, and to furnish.all the labor and material therefor, in consideration of. $1700; that the plaintiffs paid to the defendant on the contracts the sum of $4436.80 ; that on the 28th day of July the defendant abandoned the contract and work, leaving large claims for labor and material due and unpaid, in the sum of $358.20 ; that he failed and refused to construct the building according to contract, and being insolvent, the plaintiffs were compelled to pay for labor, material and the completion of the buildings the sum of $400 above the contract price ; that the plaintiffs paid defendant $86.80 which had been overlooked ; that the buildings were completed in accordance with the plans and specifications ; and plaintiffs therefore demanded judgment for $846.45. The answer was a general denial and a plea of the statute of limitations. A trial was had before the court, without a jury, on the following agreed statement of facts :
" It is agreed between the respective parties that if the plaintiffs are entitled to recover at all in this action, they are entitled to recover the sum of $200 ; that the defendant Albert Lingren was in the state of Kansas, and was a resident thereof for more than three years after the cause sued upon accrued, but that he departed from this state, being a non-resident thereof before the expiration of five years ; and that he continuously remained out of the state from a time within five years subsequent to the time the cause of action accrued. The sole question submitted to the court is, Does the three years or the five years statute of limitations apply to this case, under the pleadings and agreed statement of facts? If the five years statute, the plaintiff shall have judgment for $200 and costs ; if the three years statute applies, the defendant to have judgment for costs, the same as if such three years statute were expressly pleaded.”
The court found for the plaintiffs and rendered judgment against the defendant, who filed his motion for a new trial, which was overruled, and presents the case to this court for review. The only question involved is whether the action is barred by the statute of limitations. Section 12, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4095), reads :
"Civil actions other than for the recovery of real property can only be brought within the following periods after the cause of action shall have accrued, and not afterwards : First, within five years : an action upon any agreement, contract or promise in writing. Second, within three years : an action upon a contract not in writing, express or implied ; an action upon a liability created by statute other than a forfeiture or penalty.”
Is the present action an action on any agreement, contract, or promise in writing, within the meaning of the statute? The contract set out in the petition was in writing, and the defendant thereby agreed that he would furnish the material and labor and construct the buildings. The right of action accrued by reason of Lingren’s failure to comply with the terms of his written contract. The cause of action was not barred by the statute of limitations.
The judgment will be affirmed.
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The opinion of the court was delivered by
Wells, J.:
On April 1, 1880, the plaintiff in error recovered a judgment against the defendants in error in the district court of Mitchell county. Executions were issued thereon, the last of which was of date October 1, 1890. Said judgment became dormant on October 1, 1895. On May 1, 1896, the plaintiff filed in said court a motion to revive, notice of which was duly served on the defendants and the time of hearing fixed for “September 28, 1896, at nine o’clock a. m. of said day, or as soon thereafter as counsel can be heard.” This motion was not heard and acted on by the court until the 28th day of January, 1897, when it was overruled for the apparent reason that the time had elapsed in which the court had jurisdiction to revive. This ruling is brought to this court for review.
It is contended by the plaintiff in error that the time set for the hearing of the motion was within the time allowed by law in which a revivor can be made, that the court arbitrarily refused to set it for hearing at an earlier time, and that the hearing was adjourned by the consent of both parties and the question of time waived. We doubt if the court would have had jurisdiction to revive the judgment without the consent of the defendants after it had been dormant more that one year, even if the hearing had been set for such time at defendants’ request, but as this question is not raised or discussed by either party and its decision is not necessary to the disposition of this case we shall not consider it.
Under the uniform decisions of the supreme court. and of this court, a general finding of the trial court in favor of a party will be considered by a reviewing court as a special finding of every fact supported by sufficient evidence necessary to sustain the general finding; and while the evidence in this matter was contradictory as to what actually took place in court, the judge had the right to find either way, and particularly as he must have had some independent recollection of his own. In this case it is not necessary to consider the question as to what remedy the plaintiff would have had if he had done all he could to get his motion heard and the court had arbitrarily refused to hear it until the time in which it could be sustained had passed. All that we are required to decide is that where a judgment becomes dormant, and the plaintiff files his motion to revive and serves notice of the time and place of the hearing thereof, all within the proper time, but neglects to call said motion up and secure an order thereon until after one year has elapsed, the judgment cannot then be revived without the consent of the opposing party.
The judgment is affirmed.
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The opinion of the court was delivered by
Milton, J.:
This case involves the validity of an order of the probate court of Allen county directing John T. Harclerode, as administrator of the estate of H. H. Hayward, deceased, to sell an undivided one-half interest in a farm in that county to pay ordinary claims, duly proved and allowed, against said estate. The order appears to have been made at the instance of the creditors of the estate, but both the administrator and the creditors appealed therefrom to the district court. There- the order of the probate court was affirmed and the costs of the case ordered to be paid out of the assets of the estate.
H. H. Playward died on his homestead, a farm in Allen county, on the 19th day of June, 1893, intestate, leaving his widow, Elizabeth Hayward, who continued to occupy the homestead, and four children of full age, three of whom resided elsewhere than on the homestead. One was then on the farm as a tenant for one year and removed therefrom in February, 1894. On the 28th of December, 1893, Mrs. Hayward conveyed her undivided one-half interest in the farm to her daughter, Rebecca S. Green, by deed of warranty containing the following clause :
“The grantor herein reserves to herself during her lifetime the possession, use and profit of said land. The grantee to have such possession, use and profit only at the death of this grantor; it being the intention of this grantor to hereby convey to the grantee all of her interest in the entire tract above described to which she is entitled as the widow of the said H. H. Hayward, deceased.”
On the farm were two habitable dwelling-houses, one of them being occupied by the tenant of Mrs. Hayward. She retained a room in the other house, keeping her household furniture and goods there, and resided there continuously — being absent only when visiting her daughter. She had no other means of support than that derived from the rental of the farm. She was seventy-one years of age at the time of the trial. She stated that it had been her intention ever since the death of her husband to make the farm her home as long as she lived.
There is nothing in the record before us to indicate any disposition or intention on the part of Elizabeth Hayward to abandon the homestead which she was occupying when her husband died. It is true she conveyed to her daughter the legal title to an undivided half interest, but she reserved to herself a life-estate in the premises. The other heirs have not sought a partition of the estate. Mrs. Hayward’s deed did not operate as a partition of the land, for it purported to convey an undivided one-half interest only. The probate court did not have jurisdiction to partition the land nor to compel a distribution so long as the property retained its homestead character. In our opinion this case is governed by the decision in Barbe v. Hyatt, 50 Kan. 86, 31 Pac. 694. There the estate was duly partitioned in an action brought by the widow, and she received eighty acres thereof. One son, Sherman Hyatt, received forty acres, and the other children the remaining forty acres. After partition was made, the widow sold her portion and delivered possession of it to the piurchaser. Sherman Hyatt resided on his forty-acre tract, and the other forty acres remained unsold and unoccupied by any one. Upon the application of Barbe, a claimant against the estate of the decedent, the probate court ordered the sale of the last-named tract. An appeal was taken from this order, and the district court held the entire homestead exempt from the payment of the debts of the deceased. We quote two extracts from the opinion of the supreme court:
“ So long as it [the land] retains its homestead character it cannot be sold’to pay ordinary debts, nor can there be compulsory division and distribution.”
“When the property was apportioned, the sale by the widow transferred her interest in the part allotted to her free from the debts of the estate ; but when the distribution was made, and she removed from the premises, they were divested of the homestead quality, and the southeast forty acres, which were unsold and unoccupied, were subject to the debts of the estate which were not barred by the statute of limitation. Under the authorities cited, they had no homestead right in the tract which was ordered to be sold; and it descended to them subject to any debts existing against the deceased from whom they inherited. Their shares were protected from sale during the residence thereon of the widow, but when her occupancy ceased all that was unsold and unoccupied became subject to the debts of the estate.”
We are of the opinion that the order of the probate court and the judgment of the district court approving the same are erroneous. The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views above set forth.
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The opinion of the court was delivered by
Mahan, P. J.:
It is contended that the court ought to have granted a new trial for the reason that the verdict is contrary to the evidence, contrary to law, and is excessive in amount. A part of the controversy grew out of a sale of personal property on Piper’s ranch, which the plaintiff Matkins claimed was not delivered according to the contract.. Aside from this there were two items, one for a commission of $500 for the sale of a part of Piper’s ranch, and another item of $119 for commission for the sale of 119 cattle belonging to Piper, to one Hood. The sale of the personal property was evidenced by a contract referred to as a bill of sale, in which the items of property sold were described.
The items for which the suit was brought, aside from the commission, were not mentioned specifically in this contract, and the plaintiff, Matkins, claimed that they ought to have been mentioned, but were omitted by the mistake of either the attorney who drew the contract, or the typewriter, or Piper, and that it was agreed at the time, the attention of the parties having been called to it by Matkins, that the omissions were made, and that Piper agreed to make it right without stopping to rewrite the article, inasmuch as the attorney was ill and the hour was late and the parties were in haste to get away. On the part of Piper, it is claimed that there was no mistake ; that there was no reference to it at the time the article was drawn, and that there was no promise to make it right; that everything that was $old was delivered; and that there was no contract for commissions and no indebtedness on that account. Witnesses were called on both sides to corroborate the contentions of the respective parties.
The contention under this head is that there was no mutual mistake; that it was impossible that there could be ; and that therefore the jury were wrong in allowing anything on account of the articles claimed to have been omitted from the contract. It is further claimed that the jury ignored the direction of the court with respect to this matter. It was a question for the jury to say whether there was a mutual mistake and whether it was agreed between the parties that it should be subsequently corrected and made right. As to a part of the items, the jury found for the plaintiff, and their finding is supported by the evidence.
The law doubtless is that the burden of proof is on the party having the affirmative of the issue. There is no question but that in the first instance, as to the allegations of the plaintiff’s petition on all the items of his account, the burden was on him to establish everything that was necessary to enable him to recover, and that this burden never shifted ; that at no time was the burden on the defendant to prove the 'contrary. It is true that as the case progressed the burden of- going forward with the evidence did shift to the defendant, but after the evidence was all concluded, in the consideration thereof by the jury, the burden of proof still rested on the plaintiff as to all matters on which he founded his claim ; and the question is, Did that part of the instruction which says, “Then it devolves upon the defendant to convince you that he is not right,” signify to the jury a change of the burden of proof upon the final deter mination of the case? The court adds: “That is merely what is meant by a preponderance of the evidence.” And would not the jury naturally and inevitably draw from the statement first above quoted that if the plaintiff had convinced them and made it clear to their minds, that he was right, then the burden shifted to the defendant to show by a preponderance of evidence that he was not right? It surely placed on the defendant the same responsibility in the matter of the introduction of evidence as it did on the plaintiff. Does it not necessarily negative the proposition that if the jury should be of the opinion, in weighing the evidence, that it was equally balanced, and that the plaintiff on the whole case did not have a preponderance of evidence, they should find for the defendant? There is no doubt but that this is the correct rule in such cases.
We are of the opinion that the instruction placed the defendant at a disadvantage not authorized by law ; that the instruction is prejudicially erroneous ; and for this error the judgment must be reversed and a new trial awarded. (5 A. & E. Encycl. of L. [2d ed.] 21-26.)
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The opinion of the court was delivered by
Milton, J. :
George L. Pratt seeks the reversal of a judgment rendered against himself and D. J. Buckley, jointly, in favor of the First National Bank of Arkansas City, Kansas, upon a promissory note for $1000, exe cuted by Buckley to the bank as payee, and indorsed in blank by Pratt, who thereby became a guarantor. Buckley has not been made a party to the proceedings in error, although he filed an answer and appeared at the trial in the district court. The failure so to join him is made the principal ground of the motion to dismiss filed by the defendant in error. The motion must be sustained. In the case of Manufacturing Co. v. Richardson, 57 Kan. 661, 47 Pac. 537, the court said:
“The rule is well settled, and has often been enforced by this court, that all persons against whom a joint judgment has been rendered must be made parties to a proceeding to reverse such judgment, and that a failure to join any of them either as plaintiffs or defendants is ground for the dismissal of the case.”
Among the cases cited as supporting that, decision is Bonebrake v. Ætna Life Ins. Co., 3 Kan. App. 708, 41 Pac. 67, in which the syllabus reads :
“A joint judgment rendered against the principal and sureties on a bond cannot be reviewed or disturbed by proceedings in error when the principal to such judgment is not made a party in the appellate court, and no valid reason appears for such omission.”
The petition in error is dismissed.
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'The opinion of the court was delivered by
Schoonover, J.:
In this case the plaintiff in error is seeking to reverse a judgment of the district court ■of Cherokee county awarding damages to the defendant in error for right of way taken by the plaintiff in ■error through the land of the defendant in error. The ■case was tried before the court and jury. It is contended that the trial court erred “ in sending the jury back a second time to consider of their verdict and to make their findings and general verdict correspond.” The record contains the following:
“ Thereupon the jury retired-under charge of a sworn bailiff to consider their verdict and answers to the ■special questions submitted to them by the court at the request of the appellee ; and thereafter said jury returned into court their verdict and the answers to said questions, and the court, after examining the same, instructed the jury that they should make their general verdict and their answers to the special questions harmonize, and caused them to again retire to the jury-room for that purpose. To which action of the court in sending the jury back to make their verdict and the special questions harmonize defendant objects, and, its objections being overruled, defendant then and there duly excepted. Thereupon said jury again retired under charge of a sworn bailiff, and afterward returned into open court their verdict.”
This is all the record contains that tends to throw light on the error complained of. It will be observed that the jury returned into court their verdict, together with their answers to the special questions. When this was done their work was completed. Section 294, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4379), provides-:
“The verdict shall be written, signed by the foreman, and read by the clerk to the jhry, and the in quiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again ; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If, however, the verdict be defective in form only, the same may, with the assent of the jury, before they are discharged, be corrected by the court.”
The trial court, after examining the verdict and special findings, instructed the jury that they should make their general verdict and their answers to the special questions harmonize and caused them to retire again to the jury-room for that purpose. The objection to the general verdict and the special findings returned by the jury, as appears from the record, is that they did not harmonize. This is not a matter over which the court can exercise control. If the verdict had been defective in form only, the court, with the consent of the jury, before they were discharged, could have corrected it. But to instruct the jury that they should make their general verdict and their answers to the special questions harmonize, and to cause them to retire to the jury-room for that purpose, is error for which a new trial will be granted.
The judgment of the district court is reversed.
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The opinion of the court was delivered by
Milton, J.:
This action was commenced on March 17, 1894, by D. L. Fuller to recover the possession of certain personal property described in a .chattel mortgage given by defendant Torson to John M. Campbell, and by the latter sold and delivered to the plaintiff, together with ten promissory notes of fifty dollars each, one of which matured November 1, 1893, and one each month thereafter. The property mortgaged was furniture and other articles used in connection with a restaurant and hotel located in the city of Emporia. The mortgage contained the following provisions :
“But if the said property be kept together and taken good care of, then it is understood that in case of unavoidable default in the payment of any note or interest the said John M. Campbell will not take pos session under the mortgage until the maturity of the note coming due July 1, 1894. But in case of a sale or attempt to dispose of said property with (out) the consent of the said John M. Campbell, or the removal or the attempt to remove the same from the city of Emporia, or in case they are so used and kept as to materially depreciate their value, or in case the undersigned shall fail or refuse to keep the same insured for the benefit of. the said Campbell, then all the sums hereby secured shall be and become due and payable, and said John M. Campbell or his assigns shall become entitled to possession of the property and to dispose thereof at public or private sale, and out of the proceeds pay the sum due and expenses of collection.”
The petition alleged that the mortgaged property -had not been kept together and had not had good care ; that a portion thereof had been disposed of without the consent of the original mortgagee or of the plaintiff; and that the property had been so used and kept ••as materially to depreciate its value. The answer, besides a general denial, averred that the mortgaged property was exempt, the mortgagor being a married man, and part of the property being household goods, and another part implements for carrying on defendant’s business, and that the mortgage was void because made without the joint consent of the defendant and his wife. The answer prayed for a return of the property or $500 in lieu thereof, and also for $500 damages for the wrongful taking of the same, by the plaintiff. A jury was impaneled, and plaintiff presented his evidence. ' The defendant demurred to the evidence and the demurrer was sustained, and judgment entered in-favor of defendant for costs.
The evidence showed that no part of the indebtedness or of the interest thereon had been paid, and that the mortgaged property had not been kept together. It was proved that at one time portions of the prop erty were in three different buildings and also that defendants had leased the greater part of it to a third party to be used in a hotel. There was some conflict in the testimony, owing in a large measure to the fact that the plaintiff used the defendant as a witness. The defendant testified that until the action was commenced he supposed Campbell still owned the notes and mortgage, and that Campbell had consented to the removal of part of the property from the building described in the mortgage to another place in the city of Emporia. Campbell denied having given such consent. He also testified that, as agent for the plaintiff, he made a demand on the defendant for possession of the mortgaged property. The defendant admitted that a demand was made, but claimed that Puller’s name was not mentioned in connection with the demand. The evidence tended to prove that Campbell was the agent of Puller in respect to the property.
The rule to be applied to the foregoing facts is thus stated in Christie v. Barnes, 33 Kan. 317, 6 Pac. 599:
“The only question, now involved in the case is, whether sufficient evidence was introduced on the trial from which the jury might have found in favor of the plaintiffs all the facts necessary to enable them to recover. On a demurrer to evidence the court cannot weight conflicting evidence, but "can consider only that portion of the evidence which tends to prove the case of the party resisting the demurrer. Indeed, a demurrer to evidence admits every fact and every conclusion which the evidence most favorable to the other party tends to prove.”
We think that, from the evidence, the jury might have found every essential fact in favor of the plaintiff.
It may be further observed that, under the pleadings, proof of demand was unnecessary, within the doctrine declared in Chapin v. Jenkins, 50 Kan. 385, 31 Pac. 1084, where the first paragraph of the syllabus reads :
‘ ‘ Where the defendant in a replevin action asserts title to the property in himself in opposition to that claimed by the plaintiff, or where he alleges such title in his answer, no proof of demand and refusal is necessary.” See also Greenawalt v. Wilson, 52 Kan. 109, 34 Pac. 403.
We think that the plaintiff’s evidence should have gone to the jury and that the court erred in sustaining the demurrer. The judgment of the district court will be reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Mahan, P. J.:
Defendant in error presents a question of jurisdiction. He contends that there is no case-made presented to this court to authorize it to review the judgment of the court below. This contention is based on the construction of sections 547, 548 and 549 of the code (Gen. Stat. 1897, ch. '95, §§ 588, 589, 690). At the time the judgment was entered, June 24, 1897, the court, at the request of the plaintiff in error, granted it sixty days from that date in which to make and serve a case. There were several extensions of time allowed for making and serving a case, the last of which expired on the 1st day of January, 1898. On the 30th day of December, 1897, before the expiration of the last extension, an order was made granting to the plaintiff in error until the 1st day of March, 1898, to make a case for the court of appeals. The form of the order is: “For good cause shown, it is ordered that the time for making a case for the court of appeals is extended until the 1st day of March, 1898.” It will be observed that there is no provision in this order extending the time for serving the case.. There were several other orders made extending the time in which to make and serve a case, but all of them were made after the 1st day of January, 1898.
It is contended by counsel for plaintiff in error that this order is sufficiently broad to include the service ; that the making of a case necessarily includes service on the other party. The statute clearly draws a distinction between making and serving a case. Section 547 says : “A party desiring to have any judgment or order of the district court or a judge thereof reversed by the supreme court may make a case, containing a statement of so much of the proceedings, . ' as may be necessary, . . .” Section 548 provides that the case so made, or a copy thereof, shall, within three days after the judgment, be served upon the opposite party or his attorney, who shall have three days to suggest amendments; that after the time has expired for suggesting amendments-, the case so made and served shall be submitted to the judge to settle and sign the same, and after it has been settled and signed it shall be filed and attested by the clerk, with the seal of the court attached by direction of the court or judge. The section then provides : “ The exceptions stated in a case-made shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the time they were taken.” Section 549 of the code provides that the court or judge may, for good cause shown, extend the time beyond three days for making a case, and may also extend the time beyond the three days in which a case may be served, and may also direct notice to be given of the time when it will be presented for settlement. So, as we have said, the statute itself makes a clear distinction between the making and the serving of a case-made. It is intended to take the place of both the former bill of exceptions and that which was necessarily a part of the record without such bill of exceptions. It is well settled by the supreme court that a party desiring a case to be reviewed must comply with the provisions of the statute providing therefor, unless something shall be waived by the opposite party.
The supreme court has likewise recognized the distinction between making and serving a case. In B. K. & S. W. Rld. Co. v. Gillen, 38 Kan. 673, 17 Pac. 334, it is said :
“Ninety days were given by the trial court to- ‘ make a case/ Nothing was said in the order about the time within which ‘the case’ was to be served. It does not appear from the record that the case was ever served at any time, and there is nothing presented in the record, or otherwise, to show that service of the case was ever waived.”
In Weeks v. Medler, 18 Kan. 425, the supreme court said : “The making and serving of a case are the acts of the plaintiff in error ; the suggestion of amendments the act of the defendant in error; and the settling and signing of the case the duty of the judge.” And it is said in the-third clause of the syllabus in that case: “The jurisdiction of the judge to settle the case is a special and limited jurisdiction, which only arises at the times and under the circumstances specified by law.” The same language is used in M. K. & T. Rly. Co. v. City of Ft. Scott, 15 Kan. 435.
The question of making a case was likewise under consideration in M. K. & T. Rly. Co. v. Roach, 38 Kan. 592, and again in J. C. & Ft. K. Rly. Co. v. Wingfield, 16 id. 217; also in Ingersoll v. Yates, 21 id. 90. In the case of Denny v. Faulkner, 22 Kan. 91, the court said:
“ Now, it is contended that the exceptions taken to-the rulings at the trial must be reduced to writing at; the term; that the continuance of the motion for a. new trial does not continue the right to reduce the exceptions to writing; and that no exceptions having- been reduced to writing during the term, no subsequent reduction of the exceptions to writing is of any validity. Whatever might be true if the case stood upon a bill of exceptions, we think our statutes warrant a case-made with exceptions reduced to writing after the close of the term. There is no inherent vice in so reducing exceptions to writing; the legislature can authorize such action, and the question is one of policy only. Until the provisions for a case-made the statute was clear, .and compelled action during the term. The court was not authorized to further extend the time. But the court is authorized generally to extend the time for making a case. No limitation is placed in the statute. Full discretion seems to have been granted. And the case-made is not the mere collection of the pleadings and previously prepared bills of exceptions — it is itself the statement of the proceedings and evidence, or other matters, or so much thereof as is deemed necessary to present the errors complained of. It is an original document and not a compilation. Extending the time to make it extends the time to make it conrpletely and Avholly. It may all be done on the very last day of the extended time. The testimony and exceptions may on that day for the first time be reduced to writing. This would seem logically to follow from the provisions of the general statutes. But, as if to avoid any doubt, the legislature in 1870, and again in 1871, amended by providing that ‘the exceptions stated in a case-made shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the term they wei'e taken.’ This plaizzly izzzplies that the exceptions are first redizced to writing Avhen the case-made is prepared, and declares that they are to have the same effect as if redizced to Avriting at the time they were taken ; and the tizne in which they may be so reduced to writing, is as extensive as the time for making the case.”
The requirement of service of a case-made is a new feature Avhich was made necessaz’y by the fact that the time for making it was extended beyond the term, and that the case could be settled by the judge in vacation. So that the exceptions, instead of being reduced to writing and allowed at the time they are taken, in the progress of the trial a'nd before the termination of the term of court, are reduced to writing by the preparation of the case. Service on the opposite party is another matter. The legislature doubtless had all this in view at the time it made the distinct provisions found in the third section of the statute above recited.
In Ætna Life Ins. Co. v. Koons, 26 Kan. 215, it was decided that the district judge has no power to extend the time for making a case after the time fixed by the statute and by the order of the court or judge has once elapsed. The same rule is reiterated in Hammerslough v. Hackett, 30 Kan. 57, 1 Pac. 41. In Gimbel v. Turner, 36 Kan. 679, 14 Pac. 255, it was held that the judge could not, after the time fixed for serving a case had expired without such service, settle and sign the same so as to give it any validity.
The special orders of the court extending time for serving the case which were made after the time had expired were without authority, by the force of these decisions. This being the case the record is a nullity, and leaves us without jurisdiction to review the judgment of the district court. The petition in error is dismissed, at the cost of the plaintiff in error.
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The opinion of the court was delivered by
Schoonover, J.:
This action was commenced in the district court of Greenwood county by the defendant in error to recover the value of certain hogs levied on by the plaintiff in error as constable, by virtue of an execution issued on a judgment against E. H. Foster,, the husband of defendant in error, Mollie É. Foster.
The question in controversy was, whether the wife- or the husband was the owner of the property. It is; contended that the court erred in permitting the husband of the plaintiff to testify in behalf of his wife 'in a suit in which he was not a party. It appears from the record that the husband was acting as agent of the wife. As to all matters covered by the agency established between the husband and the wife, he was a competent witness. (Gen. Stat. 1897, ch. 95, § 334 ; Gen. Stat. 1889, ¶ 4418.)
It is further contended that the trial court erred in admitting in evidence certain declarations relating to the ownership of the hogs made by the husband while the hogs were in his possession. The record in this case is sufficient to bring the testimony complained of within the rule, that the declarations of a person while in possession of personal property in disparagement of his title or explanatory of the character of his possession are admissible as part of the res gesto. (Cunningham v. Fuller, 35 Neb. 58, 52 N. W. 836; Durham v. Shannon, 116 Ind. 403, 19 N. E. 190.)
■ There is no error in the record sufficient to justify a reversal of the case. 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 H. W. Johnson, the defendant in error, against M. E. Larkin, as sheriff, to recover damages for the wrongful taking and conversion of personal property. The plaintiff alleged in his petition that M. E. Larkin was the duly elected, qualified and acting sheriff of Atchison county ; that the plaintiff was the owner and in possession of two stacks of rye and an'undivided one-half of the corn upon the northwest quarter of the northeast quarter of section 6, township 5, range 17, Atchison county, of the value of §500 ; and that defendant wrongfully took possession of and carried the property away and .converted it to his own use. The answer contained a general denial, and an allegation that all of the acts complained of were performed by the defendant as an officer under proper order and authority of the court. A trial was had before the court and jury, which resulted in a verdict and judgment for the plaintiff. The defendant filed a motion for a new trial, which was overruled, and presents the case to this court for review, alleging error in the proceedings of the trial court.
The only question necessarily presented for the determination of the court by the record is whether the defendant in error acquired title to the corn and rye by an agreement with Franklin Guess, the former owner, or whether the title to the property remained in Franklin Guess, and by reason thereof was subject to levy and sale on the execution held by the sheriff against the property of Guess.
The record discloses the following facts : Franklin Guess, in July, 1894, was the owner and in possession of two stacks of rye and the undivided onerhalf.' of eighteen acres of'growing corn, situated upon the-above-described premises. The defendant in error-Johnson contends that he became the owner of the* rye and corn by purchase, in July and August, 1894.. The evidence in support of this contention is as follows :
Franklin Guess testified: "I sold my interest in that corn to Hiram W. Johnson, the plaintiff in this case, in July, 1894. The corn was sold by the sheriff as it stood in the field some time in September. I sold the rye to Mr. Johnson about the first of August, 1894, at forty-five cents per bushel; thought it would make about J50 bushels. It had been stacked about two weeks when I sold it. Johnson was to have the corn that was on that undivided half (my interest) at whatever corn was worth when it was taken in. I had money borrowed of him; first $100; gave my note for it; then I borrowed $100 and he gave me a check for it; there was no note given for that. I borrowed $200. I paid $50 or $60 of it. I owed Johnson about $150. I was to deliver the corn at Horton.
“Q,. Then at the time of this transaction you had not delivered the corn? A. No, sir.
“ Q. At the time you sold the corn to Mr. Johnson, he gave you no credit on the amount of your indebtedness to him, did he? A. I don’t know what he did on that.
“ Q,. You didn’t know of his giving you any credit for any amount, did you ; the fact is, you did n’t know what the credit would be and he couldn’t have given you any credit? A. No, he did n’t give me any credit.
“Q,. You were to deliver the corn to him at Horton ; it was to be sold and the amount applied upon your indebtedness to him at whatever the corn would bring, at the price at the time it was delivered to him ? A. Yes, sir.
“Q. In whose possession was this corn at the time you sold it to Mr. Johnson? A. It must have been in my possession ; I had it rented — I had the ground rented.
“Q. On what terms was the rye sold to Mr. Johnson? A. Sold at whatever it would be — at so much per bushel.
“Q,. When it was thrashed out? A. Yes, sir; at the time I sold it we set the price at forty-five cents per bushel.
‘‘Q. Did you estimate the number of bushels in it ? A. We supposed — I did — there would be about 150 bushels, or upwards.
‘‘Q. Where were you to deliver the rye to Mr. Johnson? A. Horton, at his mill.
‘‘Q. When were you to deliver it? A. Whenever we thrashed it.
“Q,. When did Mr.'Johnson pay you for .the rye? A. In those notes. I had the money before, and the same as it was on the corn.
“Q,. Just a verbal agreement ? A. Yes, sir.
“Q,. In whose possession was this rye at the time the sheriff levied upon it ? A. It was in my possession.”
H. W. Johnson testified that he was the plaintiff, that he resided at Horton, and that his occupation was the real estate and grain business. Continuing, he said :
“I bought the rye and corn of Franklin Guess. In February I bought — I paid Guess $100 for old corn that was in the crib ; when he came to pay up these costs and expenses, he said he could n’t let me have thatmoney out of that corn, when he sold it; if I would allow him to sell it and keep the corn, he would pay me out of the corn that would come off this forty acres. I said ‘Allright.’ That was in July, 1894. This $100 was to be on his interest in that piece of corn that was on that piece of land there — that forty acres. I paid him $100 on it. He was to deliver the corn any time wre might agree on. He never delivered it to me.
‘‘Q. How was it about the rye? A. While he was standing on the sidewalk talking about 'selling it to another party, the other party could n’t buy it because he had to have a car-load, and he did n’t have a carload. As soon as he left I told Mr. Guess I would take the rye, and my son was sitting in the buggy ; I bought his rye there — whatever he had on that place.
‘‘Q,. The rye he had on that place? A. Yes, sir; he was owing me, and I said to him I wanted the rye very bad; I says, I will pay you the money, or it can go on account. He says, ‘It can go on account.’
“ Q,. What was said about the amount of rye there was there? A. I don’t know anything about that; I do n’t remember what there was said about the amount.
“Q. What was said about the price? A. I asked him w'hat he wanted for it. He said : ‘I want the price whatever wheat is.’ I said I had just bought a thousand bushels of wheat and paid forty-five cents for it; that was the price I was to pay him.
“ Q. You bought the rye at forty-five cents, whatever it would pan out? A. Yes, sir.
“ Q,. How much was Mr. Guess owing you at that time? Á. Between $150 and $160.
“Q,. What evidence of indebtedness did you have against him? A. A note and the check I paid him for the corn.
“ Q. What was this note given for? A. Spot cash loaned to Mr. Guess May 3, 1892.
‘ Q,. When did you advance the other money to Mr. Guess, as you say, on the check? A. I think that was in February, 1894; amount, $100.
“Q,. When did you first talk to him about the delivery of the $100 worth of old corn? A. He had sold his old corn, and he came to me and said he wanted me to wait until he could get the other forty matured ; I could get it out of that; he had so much expense to pay it was impossible for him to pay that and me, too.
“Q. When did that conversation take place? A. That was some time in July — about the 15th, I think.
“Q,. Was that the only conversation you had with him with reference to the purchase of the new corn? A. Yes, sir ; that is all.
‘ ‘ Q,. He was to deliver that corn to you ? You were to pay him how much per bushel ? A. I was to pay him the market price at the time it was delivered.
“ Q. When was that rye to be delivered to you ? A. As soon as he thrashed.
“Q. When it was brought in it was to be weighed and measured — ascertained how many bushels there were in it; then you were to allow him forty-five cents per bushel? A. Yes, sir.
“Q,. Was that rye ever delivered to you? A. No, sir.
“Q,. This transaction in regard to both the corn and the rye, as I understand, were verbal transactions ? A. Yes, sir.
“Q,. But at this time how much does he (Guess)owe you? A. About $150 or $160 and the interest.
“Q,. Is he entitled to have any credit on the rye in the stack, the two stacks of rye, or is he entitled to any credit on this corn ? A. Not until he delivers it.
“Q,. You have given him no credit whatever ? A. I do n’t have to give him credit; but if I got the rye, of course I would give him credit for it.
“ Q. You do n’t know what the amount was ? A. No, I do n’t.
“Q. Then you haven’t given him. credit for any definite amount ? A. No, sir.”
This is all of the testimony offered for the purpose of showing the purchase of the corn and rye by the defendant in error. The contract, as gathered from the testimony of both contracting parties, amounts to merely an executory agreement, and the corn and rye remained the property of the vendor until such contract should be executed. In determining whether the title has, or has not, passed by the contract, of course the primary consideration is one of intention. The corn was to be husked, weighed, delivered,, and the market price ascertained. The rye was to be thrashed, weighed or measured, and delivered. This was, according to the terms of the contract, all to be done by the vendor before he was entitled to his pay or credit on his indebtedness for the value of the corn and rye. There is no evidence to support the verdict. Franklin Guess was not divested of the title and ownership of the property by the agreement made.
The two rules on this subject, as stated by Lord Blackburn, are as follows :
“First. Where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property. Secondly. Where anything remains to be done to the goods, for the purpose of ascertaining the price, as by weighing, measuring or testing the goods, (where the price is to depend on the quantity or quality of the goods,) the performance of these things also shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they ought to be accepted.” (Benj. Sales, 4th'Am. ed., §364.)
In Hughes v. Wiley, 36 Kan. 731, 14 Pac. 269, the court say in the syllabus.:
“A contract for the sale of standing millet, which provided that it should be cut and stacked on the farm of the vendor, and within thirty days be measured and paid for, does not vest the title to the millet in the vendee until it has been measured and paid for according to the contract.” (See also Bailey v. Long, 24 Kan. 95.)
There was a total want of evidence to. support the verdict. The court erred in overruling the motion for a new trial. The judgment will be reversed, and the case remanded for a new trial.
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The opinion of the court was delivered by
Dinnison, P. J.:
This action was commenced in the district court of Harvey county by the plaintiff in error to recover from the defendant in error a certain crop of wheat, of which plaintiff in error claimed to be the absolute owner. Pollard claimed to be entitled to the possession of the wheat under a levy made thereon as the property of George Fleming by him as sheriff of said county, by virtue of an execution issued on a judgment rendered in favor of the Citizens’ Bank of Sedgwick against George Fleming. The plaintiff below introduced its evidence, to which the defendant below demurred and the demurrer was by the court sustained. A review is asked by the plaintiff below on the judgment of the court in sustaining said demurrer.
The evidence tends to prove that, prior to and during the year 1891, one George Fleming was the owner of a quarter-section of land in Harvey county, and having become indebted to the Sedgwick City Bank he deeded the land to the bank to secure such indebtedness. Fleming remained in possession of the land under an oral agreement with the bank that he should retain from the proceeds of the crops raised by him .thereon sufficient to sustain his family, and should pay the remainder to the bank to apply on his indebtedness to it. In the fall of 1891, Fleming, being unable to procure the seed to put in a crop of wheat, agreed with Hall, the cashier of plaintiff in error, that he would furnish the personal labor requisite to plant, harvest, thrash and market the wheat, and that the bank should furnish the money to buy the seed wheat and pay all cash expenses in planting, harvesting, thrashing and marketing the wheat and should be the owner of the crop.
The question to be determined by us is, Was there any evidence tending to prove that the Sedgwick City Bank was the owner of the wheat in controversy? If so, then the court erred in sustaining the demurrer. If not, then the demurrer was rightfully sustained.
A careful analysis of the evidence shows that the bank was not the owner of the wheat, but at best had a lien on it to secure it for the payments it made in connection with the crop and to secure its indebtedness against Fleming. Fleming owned the farm subject to the debts owing to the bank, and had possession of it and also had possession of the crop. Fleming was charged with every dollar advanced to him by the bank and was to receive the benefit of every dollar realized from the crop. It should all be applied on Fleming’s indebtedness, and if for any reason the proceeds of the crop should more than pay the indebtedness of Fleming he would be entitled to the surplus. The lien, of the bank had not been reduced to possession or filed in the office of the register of deeds of that county, and therefore the levy was properly made on the wheat as the property of Fleming.
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. W. Vail in the district court of Harper county to recover on a “prospecting bond” issued by the city of Attica in accordance with an act of the legislature of this state. The bond recites :
“ This bond is one of a series of six bonds numbered from 1 to 6, inclusive, of like amount, tenor, and effect, executed and issued by the said city, and in accordance with an act of the legislature of the state of Kansas, entitled ‘An act authorizing counties and incorporated cities of the second and third classes to encourage the development of the coal, natural gas and other resources of their localities, by subscribing to the stock of companies organized for such purposes,' approved March 2, 1887.”
The serious question presented is the constitutionality of the act authorizing the issuance of the bonds. In the case of City of Geneseo v. Gas Company, 55 Kan. 358, 40 Pac. 655, our supreme court has said:
“ Chapter 114 of the Laws of 1887, entitled ‘An act authorizing counties and incorporated cities of the second and third class to encourage the development of the coal, natural gas and other resources of their localities by subscribing to the stock of companies organized for such purposes/ is unconstitutional and void.”
Relying on this authority, the judgment of the district court sustaining the demurrer to the petition of plaintiff below will be affirmed.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by Arthurs and Henderson, the defendants in error, as administrators of the estate of Richard Arthurs, deceased, for the recovery of $1800, with interest, and to foreclose a real-estate mortgage. The defendant filed an answer admitting the representative capacity of plaintiffs and the execution- and delivery of the note and mortgage ; and alleging that Richard Arthurs in- his lifetime appointed one Thomas M. Carroll his agent to loan money upon real estate and to collect both principal and interest; that the agency continued until the death of Richard Arthurs; that the note in suit was payable at the office of Carroll, the agent; that the defendant borrowed the money of Carroll as the agent of Arthurs ; that by the terms of the mortgage the debt become due April 10, 1890, by reason of a default in the payment of interest due ; that the defendant made payments on the note and mortgage to Thomas M. Carroll, agent, as follows : May 18, 1890, $126 ; August 3, 1890, $433.65'; May 2, 1891, $500 ; August 15, 1891, $696 ; and that the amount due on the indebtedness, note and mortgage, after deducting the payments, was $300, which was tendered in the answer.
To this the plaintiffs filed a reply, in substance, (1) a general denial; (2) a denial that Thomas M. Carroll was the agent of Richard Arthurs in his lifetime to collect principal and interest on loans, and denying that Carroll had authority to collect either principal or interest for Arthurs at any time ; (3) alleging that Carroll was, at the time he received the money from defendant, the agent and attorney of defendant, and that the money received by him for which defendant claims credit was received as her agent and attorney. The reply was verified. A trial was had by the court, without a jury, which resulted in a judgment for plaintiffs for the sum of $2317, and a decree for the foreclosure of the mortgage. The defendant filed a motion for a new trial, which was overruled, and presents the case to this court for review, alleging error in the proceedings of the trial court.
The first question presented for consideration is a motion by the defendants in error to dismiss the peti tion in error for the reasons : (1) That no certified transcript of the record of the trial court'is filed with the petition in error; (2) that no order of the trial court was made extending the time to make and serve a case-made within three days after the rendition of the final judgment. The trial was had and judgment announced on the 25th day of February, 1895. On the next succeeding day, February 26, a motion for a new trial was filed, which motion was heard and overruled on the 7th day of March, thereafter, and the court gave the defendant sixty days from that date to make and serve a case-made. May 2 the parties agreed on the case-made, and on the next succeeding day, May 3, the trial judge certified, signed and settled the case-made, and the same was duly attested and filed by the clerk of the court. The contention of the defendants in error is that the case was tried on an agreed statement of facts, and therefore a motion for a new trial was not necessary for the review of the case by this court; and that the order for an extension of time to make and serve a case-made was invalid, for the reason that it wAs not made within three days after the rendition of judgment.
If the case was tried on-an agreed statement of facts, the judgment would be re viewable in this court without a motion for a new trial. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 Pac. 718.) But the case was not tried on an agreed statement of facts. The record shows the following proceedings : “ It is hereby stipulated and agreed by and between the plaintiffs and defendant, Laura Sims Thomas, that, in addition to the facts admitted by the pleadings, the following are the facts in the above and foregoing cause, and that the same are to be submitted and treated as all the evidence upon the trial of this said cause.” Follow ing this stipulation is a long list of admissionf by the parties, and the further stipulation: “It is agreed that the following are exact copies of letters written by the parties whose names are signed to them ; which letters are addressed to and were received by the said Thomas M. Carroll at Paola, Kan., in the due course of mail.” Then follows a great number of letters offered to establish the fact of agency. At page 80 of the record we find this statement: “That H. C. Hanna, if present, would testify that . . .” This is followed by a statement of the facts to which the witness would testify if present. On page 100 of the record we find the following: “It is further stipulated and agreed that . . . the said Laura Sims Thomas would testify, if she were present, that . . .” Then follows a statement of the facts to which she would testify. In the journal entiy of judgment is the following statement: “And the court having heard the evidence and arguments of counsel, and being fully advised in the premises, finds . . .” The decision of the trial court was not based on an agreed statement of facts alone, but on an agreed statement of facts, of evidence, and of testimony. A motion for a new trial was necessary as a condition precedent to present the case to this court for review of errors of law occurring at the trial. The motion to dismiss must be overruled.
The only assignment of error is that the judgment of the trial court is not sustained by the evidence and is contrary to law. The defendant Thomas averred that Carroll was the agent of Arthurs, since deceased ; that she discharged her liability by paying the sum sued for, less $300, which she tendered on the trial. The plaintiffs below denied that Carroll was the agent of Arthurs, and this presented the real controverted issue at the trial. The case was tried on stipulations of'fact, evidence, and correspondence. -We have examined the evidence, and find that Carroll was the agent and attorney, of Thomas, and had been for several years next preceding the trial. Carroll was also, the'agent of Arthurs, since deceased, and authorized and empowered to loan money and receive and collect-both principal and interest. "He made the loan on which suit is brought and; at the time he negotiated the loan, he verbally agreed that the borrower should have the "privilege of making-payments at any time she desired. The note was payable at the 'office of Carroll. The defendant Thomas made payments to Carroll at his office on the. no-te and- mortgage, as fol-' lows :.May, 1890, $126 ; August 3, 1890, $433.65 ; May’ 2, 1891, $500; August 15, 1891, $696.
Thomas is not entitled to credit for the $126, nor for the $433.65, for the reason that she did not pay this money to Carroll as agent, but he collected these items for her as her attorney and failed to use the money as she directed him. In this he was acting as her attorxiey, axxd she was bound by his failure, and the loss niust be sustained by her. She-is entitled to credit,howéver, for the items of May 2, 1891, of $500, and August 15, 1891,- of $696. Carroll did not credit .the amounts .received by him on 'lxis books to- Richard Arthurs, nor did he transmit" the -same or any part thereof’ to him, but converted the money to his owxx úse; The record shows vexy satisfactorily two things :• (l)-That Carroll was the agent of Arthurs, the-lender,’ as alleged in the defendant’s answer ; (2) that Carroll was-the;agent of Thomas, the borrower,-to some extent.- Carroll was the agent of both at all "times until after the first two. credits should have been made, and after, that there is nothing ixi the record to show that Cai’roll remained the agent of Thomas.
The judgment will be reversed, and the case remanded with direction.to the trial court to render judgment for the plaintiffs below for the amount due on the note and mortgage, after allowing proper credit for the items of May 2, 1891, of $500, and August 15, 1891, of $696. The costs in this court will be divided equally between the plaintiff in error and the defendants in error. "■ ■ •
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The opinion of the court was delivered by
Mahan, P. J.:
Counsel for plaintiff in error contend in their first assignment that the policy never was in force ; and further, that if it ever was in force the right to recover thereon was barred by the contract contained in the policy limiting the time within which action might be brought thereon to six months after the fire occurred. The evidence clearly discloses the fact that the policy was executed and delivered to the broker of the plaintiffs and the premium therefor paid. But counsel contend that, having been issued to take the place of a former policy issued by the Home Insurance Company, it would not take effect until that policy was canceled, and that that policy was not legally canceled because Johnson was not the agent of the plaintiffs for the purpose of receiving such notice of cancelation, and no notice was ever given to the Missouri Savings Association, the mortgagee. Under the evidence, there is no question but that Johnson had full charge of all of the matters pertaining to the insurance of the property of the plaintiffs, both in procuring the policies in the first instance and seeing that they were properly maintained, as fully as though he had been the owner thereof. . .
So far as the .plaintiffs were concerned, the policy of the Home company was doubtless canceled. It is true that under, the terms, of the Home, policy, as disclosed by the evidence, the savings association might have insisted, in a suit directly against the Home company upon its policy; on the terms of the mortgage clause therein that the policy was not canceled as to them without notice.
It appears from the record, that by reason of the failure of the savings association to assert its rights under the contract within the time provided by the contract itself it had forfeited all claim thereunder. This was expressly adjudged by the court in the case, and it is on this fact that, the second contention is sought to be 'maintained that the plaintiff’s right was barred. But under the rule laid down by our supreme court in the case of Insurance Co. v. Coverdale, 48 Kan. 449, 29 Pac. 682, the two contracts were separate and independent ones. The court in that case said, in the latter part of its opinion: “The tendency of the recent cases is to recognize these distinctions, and thus protect the fights of the mortgagee, when named in the policy, and the interest of the owner and that of the mortgagee are'regarded as distinct subjects of insurance.”
It has likewise been held, and we think correctly, that the contracts contained in the policy, as between the mortgagor .and mortgagee and the insurance company, are separate and distinct. Therefore the right of the plaintiffs to recover did not depend on the validity of the contract between the company and the mortgagee as to the question of limitation. Hence, t.o enable the plaintiffs to recover, it was not in fact necessary that the contract between the Home company and the mortgagee or trustee should be canceled in order that the contract between the plaintiffs and the defendant insurance company might become operative. Under the second assignment of error, it is contended that the court should have given the instruction requested, to the effect that unless the jury should find that Johnson had authority, both from the plaintiffs and the Missouri Savings Association, to cancel the policy in the Home company, the jury must find that the notice to Johnson was not sufficient to cancel the Home company's policy.
This could not be a correct exposition of the law if the contract expressed in the policies constituted separate and distinct contracts as between the company and the owners and the company and the mortgagee. The policy between the company and the plaintiffs could be canceled without affecting the right of the mortgagee under its clause, which was a part of the policy.
It is further contended that the court erred in re fusing to give an instruction to the effect that the mere fact of Johnson’s procuring insurance creates no-presumption of any further authority unless it is shown by the weight of evidence that he had greater-authority, and that his agency ceased upon procuring and delivering the Home policy, and that notice to-him of cancelation was not sufficient. The court in. effect gave this instruction, though not in the same-language.
It is further contended under this assignment that the court erred in refusing to grant an instruction as. follows :
“The Missouri Savings Association had a distinct and separate interest in the Home Insurance Company policy, and that policy could not be canceled as to them by mere notice to W. B. Johnson, unless it is shown by the weight of evidence that he was authorized by the Missouri Savings Association to cancel the Home insurance policy.”
So far as the plaintiffs’ right to recover is concerned, it was not necessary that the Home policy should have been canceled as to the savings assocition. It was sufficient if it was canceled as to the plaintiffs to give effect to the contract between them and the defendant company. This necessarily follows the construction of these insurance contracts heretofore alluded to.
It is also contended that the court erred in refusing-to give an instruction that under the terms of the mortgage clause attached to the Home policy the mortgagee was entitled to ten days’ notice, and that if it had not such notice of cancelation before .the fire the Home policy was not canceled. The same remarks apply to this. It was not necessary that the policy should be canceled as to the Missouri Savings Asso ciation to enable the contract to become operative as to the plaintiffs.
Under the third assignment, our attention is called to the judgment of the supreme court of the United States in the case of Railway Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, in support of the contention that it was error to allow an attorney’s fee. Our supreme court has heretofore sustained this class of legislation and enforced it as valid. We shall not take the responsibility of holding to the contrary and saying that this case comes within the purview of the one cited by counsel in support of their contention.
There being no error disclosed by the record which would justify a new trial in the case, the denial of the defendant’s motion therefor was not error.
The judgment is affirmed.
McElroy, J., concurring.
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The opinion of the court was delivered by
Mahan, P. J.:
Defendant in error obtained judgment against the plaintiff in error in the district court of Leavenworth county for damages for personal injuries sustained by the defendant in error by the falling of a stone suspended by the plaintiff in error upon a beam attached to his ice-house and extending over a street in the city of Leavenworth, which stone fell from the beam upon the defendant in error, while he was standing in the street near the ice-house of the plaintiff in error. There was a verdict for $800. Upon the hearing of the motion for a new trial defendant in error voluntarily remitted $400, and judgment was entered for him for that sum.
It is contended under the first assignment of error that the court erred in sustaining the plaintiff’s objec-' tion to questions addressed to witnesses. Kirmeyer and Kasper as to what defendant in error had been doing about the ice-house on former occasions. Plaintiff in error has no ground for complaint on this score. The court was exceedingly liberal with him, allowing him great latitude both in the examination of his own witnesses and in the cross-examination of those of the plaintiff. It was immaterial in what the plaintiff was engaged while at the ice-house of the defendant upon 1‘ormer occasions, and the questions and any possible •answers that might have been made thereto would have thrown no light on the issues being tried by the ■court. They were irrelevant and the objection was properly sustained.
The first contention under the second assignment ■of error is that the court erroneously gave the first instruction to the jury, to the effect that if the defendant placed a dangerous obstruction over the highway in violation of law he was responsible to any one lawfully in the street for any damages sustained by reason of such unlawful obstruction in the street. The ground of the contention is that there was no evidence that the obstruction, or the rock which fell therefrom, was over any part of the highway. In this, counsel for plaintiff in error are mistaken. Not only was the evidence on the part of the plaintiff sufficient to establish that fact, but the defendant himself admitted upon his cross-examination that such was the fact.
Under this assignment plaintiff in error next contends that it was error for the court to give instruction No. 2, to the effect that the law casts upon owners of buildings abutting on streets the duty of preventing their buildings from becoming in any way dangerous to persons lawfully passing in the highway, and if a failure in this respect results in damage, it is prima facie evidence of negligence. This instruction was applicable to one phase of the case. If, as the defendant contended in his answer and upon the trial, it should have appeared to the jury that the ■obstruction was not over the highway but immediately upon the line thereof, this instruction would Lave been applicable ; and there is no question about the correctness ,of the principle enunciated therein. Plaintiff in error contends that the burden always is on the plaintiff to show that the defendant was negligent. This is true. But when, the plaintiff has shown that he was injured by some material — timber, stone, or other matter — falling from the building upon him while in the street, there is prima facie negligence. (Mullen v. St. John, 57 N. Y. 567.)
Plaintiff in error also contends under this assignment that the court erred in sayiiig to the jury that the plaintiff had a right to assume that the street was reasonably safe ; that the law did not require him to examine beyond a reasonable and ordinary use of his senses ; and that even if he did know of the existence of the alleged obstruction of the defendant, including the projecting timbers and suspended stone, he had a right to assume that they were safe, unless warned to the contrary and unless it was obvious to him, as a casual observer, that they were not safe. There can be no question of the correctness of this instruction as applied to the facts of the case. It is true that a party may not walk deliberately into danger, but being on a highway, he is not required to anticipate that any one will obstruct the street in a dangerous manner, unless it is apparent to him in the usual course of the use of the street, by casual observation, that such obstruction is dangerous.
Again, under this assignment the plaintiff in error contends that the court erred in instructing the jury that in a criminal proceeding a discharge of the accused is conclusive of his innocence of the charge. As applied to the facts in this case, the giving of this instruction was not error. The defendant had offered evidence to the effect that he, as one of the police commissioners, had procured the arrest of the plaintiff some year's before that on a charge of being a trespasser upon his premises in violation of the city ordinance ; and that he was discharged therefrom, it not appearing clearly whether he was tried or not. It was a matter wholly foreign to the issues in the case; it could have tended only to prejudice the plaintiff in the minds of the jury, and the court might have gone much further in its instruction to the jury in regard to that evidence than it did.
The third contention is that- the court refused to grant the defendant a new trial on account of misconduct of counsel for the plaintiff and misconduct of the jury. There is nothing in the record whatever disclosing that either counsel for the plaintiff or the jury were guilty of any misconduct whatever. The contention is wholly unsupported by the record.
The fourth contention is that the trial court failed to grant the plaintiff a new trial by reason of the several alleged errors heretofore noticed, and because it appeared that excessive damages were given by the jury under the influence of passion and prejudice, and'that a remittitur of a part of such damage could not and did not cure the injury or wrong done to the defendant by reason of such passion and prejudice. It does not appear either from the record or on a careful consideration of the evidence that the jury were actuated by any passion or prejudice. There is no expression of the trial court that would tend to show that it was of the opinion that there was any such passion or prejudice or even that the verdict of the jury was excessive. The record does not even disclose that the motion for a new trial was denied because of the remittitur. There was an effort on the part of the defendant to have the court say in the record that passion and prejudice did appear, but the court declined so to do and struck from the record everything indicating such an opinion or belief. Eight hundred dollars would not be an unreasonable verdict, under the testimony and findings of fact made by the jury. At least, it cannot be said that the mere fact that $800 was so awarded by the jury in its verdict was evidence of the existence of passion and prejudice in their minds, under the evidence disclosed by the record.
The judgment is affirmed.
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The opinion of the court was delivered by
Milton, J.:
The defendant in error sued the plaintiff in error before a justice of the peace of Finney county to recover a balance claimed to be due for pasturing cattle. Stevens filed a bill of particulars claiming judgment for loss of cattle occasioned by Beaseley’s negligence. A trial by jury was had, resulting in a verdict, and judgment for Beaseley in the sum of $152.58. Stevens carried the case to the district court by petition in error and bill of exceptions. The district court sustained Beasley’s motion to dismiss the proceedings in error. Plaintiff in error now asks that such decision be reversed. In the bill of exceptions the instructions given by the justice of the peace were set out, but the evidence was not preserved. If was therein stated, however, that the instructions were applicable to the testimony, and that there was evidence introduced by the defendant below tending to show negligence on the part of Beaseley, and evidence by the latter to a contrary effect.
The proceedings in error from the justice’s-court were taken under section 1, chapter 92, Laws of 1897 (Gen. Stat. 1897, ch. 95, § 313), which provides that it shall only be necessary to incorporate in a bill of exceptions so much of the evidence as is necessary to present the .error complained of, and that, where error is assigned on the instructions, the instructions given by the court shall be incorporated in the record, as well as those refused on which error is predicated, and it shall be sufficient to state that testimony was offered to which the instructions on which the error is predicated were applicable, without incorporating any such testimony in the record.
Counsel for plaintiff in error contend that the bill of exceptions was sufficient and valid under the foregoing provisions, while counsel for defendant in error claims that said chapter 92 is void. The title thereof reads: “An act' entitled An act amendatory of section 303, Laws of 1889, concerning civil procedure and exceptions in writing, and requiring the supreme ■court to prescribe rules for the making of records in appeals and proceedings in error to the appellate court.”
Section 1 of the act purports to amend section 303 of the Laws of 1889. An examination of the Laws of 1889 shows that there is no section 303 therein, and section 303 of the General Statutes of 1889 relates to probate courts. Apparently, therefore, chapter 92 is wholly inoperative ; but even if said act be considered valid, it clearly relates to proceedings in error from district courts to the supreme court or to the courts of appeals. The provisions of sections 146, 147 and 148 of chapter 143, General Statutes of 1897, control in. respect to proceedings in error taken to review a judgment of a justice of the peace. This view is supported by the language of section 14 of said chapter 103 (Gen. Stat. 1889, ¶ 5041), and by the following cases: Alvey v. Wilson, 9 Kan. 401, and Kerner v. Petigo, 25 id. 652.
Section 148, supra, which was enacted in 1870, reads :
“ In all bills of exceptions it shall be competent for the party preparing the same to set out the pleadings, motions and decisions of the justice of the peace thereon, and the whole of the evidence given, or so much as may be necessary to preserve the point or points raised and decided on the trial, and the rulings and decisions of the court and exceptions made thereto on the trial.”
At that time the action of a justice of the peace in giving and refusing instructions was not reviewable. (Theilen v. Hann, 27 Kan. 778.) By section 3, chapter 152, Laws of 1885 (Gen. Stat. 1889, ¶ 4960, Gen. Stat. 1897, ch. 103, § 144), it was provided, that a justice of the peace might grant a new trial for the same reasons and oil the same terms and conditions as were provided in the code of civil procedure in like causes. ■ Prior to the passage of chapter 92, Laws of 1897, the supreme court, in the case of Comm’rs of Allen Co. v. Boyd, 31 Kan. 765, 3 Pac. 523, had decided as follows :
“Where certain instructions given by the district court to the jury are alleged for error, held, that in the absence of all the evidence the supreme court cannot tell whether such instructions are materially erroneous or not.”
We think this decision is applicable and controlling in the present case, and that all of the evidence relating to the matters referred to in the instructions complained of should have been preserved. The district court did not err in dismissing the proceedings in error and its judgment will be affirmed.
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The opinion of the court was delivered by
Milton, J.:
On May 23, 1888,.the defendants in error recovered judgment against the Fort Scott Window Glass Company, a Kansas corporation, for the sura of $694.75, and on the 27th of the following November an execution, issued on the judgment, was returned nulla bona. In January, 1891, the judgment creditors filed .a motion, under section 32 of the act relating to private corporations, for an execution against Ohenault Brothers, who held $500 of the capital stock of the insolvent corporation. ' On December 17, 1891, the motion was heard, and an order was entered as prayed for. The execution so ordered against the stockholders was not issued until November 20, 1895. It was levied on certain real estate belonging to Ohenault Brothers, and a few days prior to the date set by the sheriff for the sale of the property they filed their motion to recall, quash and set aside the execution,, the grounds of the motion being that the execution had been issued without authority of law and that it was not based on an existing judgment. This motion was heard on February 13, 1896, and was overruled, and plaintiffs in error now seek a review of the action of the court in overruling the same.
The question presented by plaintiffs in error is thus stated in their brief : “ The point at issue in this case is whether an execution can issue against a stockholder in a corporation upon a judgment against it, where such judgment has become dormant.” Counsel for plaintiffs in error contend that, as the judgment against the corporation had become dormant, the right of the judgment creditors to proceed against the plaintiffs in error was at an end, and the execution under consideration was therefore void. On the other hand, counsel for defendants in error argue that the execution could properly issue at any time within five years from the date of the order awarding the same, and that when such order was made the original judgment against the corporation was merged therein, so far as the plaintiffs in error were concerned, and that further proceedings for the enforcement of the order were based on it and were consequently independent of'the original judgment.
Under the statute, after judgment is obtained against a corporation and an execution issued thereon is returned nulla bona, the court in which the action was brought may, in proper proceedings, order an execution to issue against any stockholder of the corporation to an extent equal in amount to the amount of stock owned by him, together with any amount unpaid thereon, as was done in this case. The proceeding is a summary one, intended to accomplish that which the execution on the judgment against the corporation has failed to accomplish — that is, the payment of the judgment. It is ancillary to the action against the corporation. It provides another method by which a creditor may obtain payment of a debt due him from the corporation. No one could deny that, if a judgment against a corporation be paid, an execution cannot thereafter issue against the property of the stockholders thereof to satisfy such judgment. In the present case, the original judgment no longer existed as a charge against the corporation, enforceable without its consent. The creditor had permitted the judgment to become, in effect, satisfied by operation of law. No execution could issue thereon. Therefore no ancillary execution could properly issue, since its only purpose would be to enforce payment of the original judgment. Whatever attributes of a judgment the order in the present case may have had, its life depended on the continued existence of the judgment against the corporation.
We conclude that the execution against the property of the plaintiff in error was unauthorized by law and
810
KANSAS COURTS OF APPEALS.
The State v. Ferguson.
that the court erred in overruling the motion to recall and quash the same. The order of the district court is reversed, and the cause' remanded for further proceedings in accordance with the views herein expressed.
The State oe Kansas v. Arthur. Benjamin Ferguson.
No. 518. *
1. CrimtnaIí Law—Plea in Abatement. Whether defendant was in fact the person indicted and arrested in the complaint and warrant was the issue tried by the court upon the hearing of the plea in abatement, and as defendant waived a jury for the trial of such issue the finding of the court was final and conclusive.
2. -Intoxicating Liquors—Election. Where a defendant
does not move to require the state to elect as to the particular transaction testified to by the witnesses on which it will rely for conviction under the several counts of the indictment, and where no instruction more specific than those given by the court without request are asked by the appellant, it is not error to submit all of the testimony to the jury without such election.
Error from Allen district court; L. Stillwell, judge. Opinion filed June 14, 1899. Affirmed.
G. R. Gard, county attorney, G. A. Amos, and Travis Morse, for The State.
Oscar Foust & Son, for appellant.
The opinion of the court was delivered by
Milton, J. : Appellant was arrested under a warrant, following an indictment, charging Andrew Ferguson with violations of the prohibitory law. At the
* Appeal dismissed by supreme court November 11, 1899. —Rep.
proper time appellant filed a plea in abatement, averring that his real name was Arthur Benjamin Ferguson ; that a man named Andrew Ferguson actually lived in Iola, Allen county, Kansas, where appellant resided and where the indictment was found, at the time the indictment was returned, and that while appellant gave bond for his appearance in the district •court, and the bond purported to be for the appearance of Andrew Ferguson, yet that such bond was given solely that appellant might thereby avoid being placed in jail. To this plea the state answered that the defendant was the person indicted as Andrew Ferguson, and that he was well known in Iola as Andrew Ferguson and as A. B. Ferguson. The defendant having waived a trial by jury of the issue so joined, the same was submitted to and determined by the court. The court found that the defendant’s teal name was Arthur Benjamin Ferguson, but that he was well known by the names of Andrew Ferguson and A. B. Ferguson. It was ordered that all subsequent proceedings be against the defendant “by the name of Arthur Benjamin Ferguson, referring also to the name by which he has been indicted, viz., Andrew Ferguson.” Thereupon, the defendant was tried under the indictment, the jury returning a verdict of guilty under the first and second counts.
Appellant contends that the court erred in refusing to give requested instructions whereby the question of the identity of Andrew Ferguson and the defendant was left to be determined by the jury. The court did not err in refusing to give the instructions, as the issue had already been determined. In a misdemeanor action a defendant may waive trial by jury, and a waiver in this case was binding on appellant.
As .the defendant did not move to require the state to elect as to the particular transaction testified to by the witnesses on whicli it would rely for conviction under the several counts of the -indictment, and as no instruction more specific than those given by the court without request was asked by the defendant, it cannot be held error to submit the testimony to the jury without such an election.
The other conte'ntions are the same as those considered and overruled in the case of The State v. Nagley, immediately following. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
The Loomis Milling Company sued George B. Vawter for $266.75, alleged to be a balance on account of flour sold and delivered. Defendant claimed damages for breach of a warranty as to quality, and a tender of $200 before suit. The cause was tried to a jury, and resulted in a general verdict for the plaintiff in the sum of $140.75. There were special findings of fact; among others, a finding that a tender of $200 was made before suit. Judgment was entered against the plaintiff for costs,'in the sum of $103.75. A motion for a new trial being denied, the case is brought here on appeal, and errors are assigned, as follows : (1) In the admission of incompetent and immaterial evidence ; (2) in the rejection of competent and material evidence; (3) in erroneous instructions to the jury; (4) in denying plaintiff’s motion for judgment on the special findings ; and (5) in denying the motion for a new trial.
We will not consider the first assignment of error, because the rule of this court is not complied with.
Tlie trial court erred in refusing to permit the plaim tiff to cross-examine the defendant on his testimony regarding the alleged tender. ' The purpose of the cross-examination, as disclosed by the record, was to show, if indeed it was necessary to show, that the alleged tender was a mere offer to compromise the claim, and was not intended or regarded by the defendant at the time as a tender. Under this assignment, it is next contended that the court erred in rejecting testimony in behalf of the plaintiff as to the authority of the agent of the plaintiff who made the sale to make the warranty as claimed by the defendant. The plaintiff did not offer to prove that the defendant had any knowledge of any restrictions or limitations to the authority of the agent. It was conceded that the agent who sold the flour was the general agent of the company, whose business it was to travel and sell the flour manufactured by the plaintiff. The plaintiff is seeking to enforce the contract so far as it inures to its benefit, and to repudiate that part of it which imposes on it a burden. The defendant had a right to assume authority on the part of this agent to make the warranty, unless the defendant had notice of some limitation on the agent’s authority in that respect. An offer to prove a limitation on his authority without an offer to prove knowledge on the part of the defendant would be immaterial and incompetent, and the objection thereto was properly sustained. Nor could the plaintiff enforce the contract and at the
same time repudiate the warranty. (Victor Sewing Machine Co. v. Rheinschild, 25 Kan. 534; Manufacturing Co. v. Stark, 45 id. 606, 26 Pac. 8; Dayton v. Hooglund, 39 Ohio St. 671; Murray v. Brooks, 41 Iowa, 46, 47; Schuchardt v. Allen, 1 Wall. 369; Benj. Sales, 6th Am. ed., §§ 625, 626.) It follows from these authorities that the instructions requested by the plaintiff respecting the authority of the agent to make the warranty were not applicable to the facts of the case, and that those given by the court were properly given.
The instruction requested by the plaintiff on the subject of tender correctly expressed the law applicable to the case and should have been given by the court. It follows, necessarily, that the instruction given by the court was inapplicable to the facts of the case and tended to mislead the jury. It clearly appears from the evidence of the defendant ’ respecting the alleged tender that he did not contemplate mak ing a tender. He contemplated and made an offer to compromise, with the knowledge that it was to be submitted to the plaintiff for its acceptance or rejection.
The special findings of fact were not sufficiently comprehensive to warrant the court in rendering a judgment for the plaintiff for any definite sum. The motion did not ask for a judgment for any definite sum, but for a judgment generally for the plaintiff. There was undisputed evidence of some damage. None of the questions of fact submitted to the jury and passed on by it related to the true measure of damages. The defendant testified, in respect to the damages sustained by the breach of warranty, that a certain number of hundred-pound sacks of different brands were not as good as warranted to be, and that the damage on those sacks which were returned to him by customers was, on some, thirty cents on each hundred-pound sack, and on other brands twenty-five cents on each hundred-pound sack. But the evidence does not disclose, and the jury did not find, how many sacks of either kind were returned, but answered interrogatories in respect thereto, ‘'We do not know,” which is equivalent to saying that the evidence did not disclose the number. This is true. Allowing the defendant the full amount claimed by him in his testimony on all the flour of the brands which he testified was not as good as warranted, it would amount to but $99, leaving a balance of $169.75 due on the account. The jury seem to have allowed some damage on account of an advance in the market. The flour was delivered, so that the defendant had the benefit of the advance, if there was one.
The measure of damages is the difference between the actual value and what the value would have been at the time of the delivery if the flour had conformed to the warranty. Hence, any advance in price between the date of contract and delivery would be covered by the general damages. The loss by any advance after the delivery was not within the issues joined, and therefore not a proper element of damage in the case. (Benj. Sales, Bennett’s 6th Am. ed., §903, and note ; Suth. Damages, 2d. ed., § 670. The trial court should have sustained the motion for a new trial. The judgment is reversed, and the cause remanded with directions to award the plaintiff a new trial.
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The opinion of the court was delivered by
Schoonover, J.:
This action was commenced by defendant in error against the plaintiff in error to recover for damages to an orchard caused by fire escaping from a locomotive of the railroad company. The case was tried before a justice of the peace and judgment rendered by default against the railroad company for $300. The case was afterward appealed to the district court of Lyon county, where the case was tried before the court and a jury, upon the bill of particulars filed before the justice of the peace. The plaintiff below obtained a verdict and judgment fot $250, and the defendant railroad company brings the case here for review.
The serious error complained of is the refusal of the' trial court to instruct the jury that, under the evidence, they should return a verdict in favor of the defendant below. The action was commenced under section 32, chapter 70, General Statutes of 1897 (Gen. Stat. 1889, ¶ 1321), which is as follows :
“ In all actions against any railway company organized or doing business in this state, for damage by fire caused by the operating of said railroad, it shall be only necessary for the plaintiff in. said action to establish the fact that said fire complained of was caused by the operating of said railroad, and the amount of his damages (which proof shall be prima facie evidence of negligence on the part of said railroad) ; provided, that' in estimating the damages under this act the contributory negligence of the plaintiff shall be taken into consideration.”
The specific charge of negligence, as alleged in the bill of particular’s, is as follows :
“ That on said day the said defendant, while running one of its trains on said road in said county, managed its said train carelessly and negligently and failed to employ suitable means to prevent the escape of fire from the engine that was running said train, and also permitted dead and dry grass and other combustible material to remain on the right of way of the defendant near the track of its road, so that by reason of its carelessness and negligence as aforesaid fire escaped from the engine of the company and set fire to the dry grass and-other material on the right of way, and by reason of a continuous body of dry grass and other material, and without any fault of this plaintiff, it was communicated to the premises of the plaintiff, and then and there injured, burned and destroyed certain fruit-trees belonging to said plaintiff then and there growing upon said premises.”
In support of the allegations of negligence as alleged in the bill of particulars, J. G. Hutchison testified :
! Ques. Now, when did this fire occur of which complaint is made in this bill of particulars? Ans. On the 26th of March, 1890; as near as I can come at it.
“ Q,. Were you present and did you see the fire yourself? A. I did not.
"Q.. Tell the jury what you know yourself about the fire, and how you discovered it, and all you know about it. A. Mr. L. A. Keys came to my office and left word that there had a fire run over the orchard and destroyed the apple trees, or some of them, and I went out, and the fire had just burned freshly over the ground. It was in the morning that this message came, and I went out and looked over the ground, and in looking over the ground I found that fire had burned from, starting here ( indicating ), and burned over about that portion of the orchard (indicating on the diagram). It had come clear down to this line — this is the South avenue road — and burned into a hedge. There is a hedge fence along the road ; burned into the hedge and burned the leaves out. There are no trees on this portion of it (indicating), and no' damage was done.
" Q. Could you see where the fire came from? A. Yes ; in order to ascertain where the fire came from I followed it back up, and the fire came in from this piece of ground up here (indicating), and it came into my premises right here at the corner (indicating). It had burned over a good portion of this piece of ground (indicating), in about that shape (indicating), and I followed it back, and right here, about two or three rods from this corner of the Gates piece of land and about thirty-seven or thirty-eight feet, I should judge, from the railroad-track, is where the fire seemed to have originated. There was some dried grass and stuff accumulated on the ground there and there was a cinder lying there on the ground. Of course it was dead at that time, but the fire appeared to have originated with that and spread right out.
“Q. Was the place where you found the cinder, and the origin of the fire, on the right of way of the railroad company, or not? Was it, or was it not? A. It was on the right of way of the railroad company.
“ Q,. Did you see any dry grass or anything? A. The dried grass extended back a little distance north of where the cinder was lying. It was all burned off, of course, south of that.
“Q. On each side of where the-fire started was there any dry grass? A. There was ; yes.”
Crons-examination.
“ Q,. Iiow soon after the fire were you there? A. The next day.
“ Q. Still smoking there, was it? A. No; no fire there at the time.
“Q,. You know it was the next day because of information you received when it occurred?. A. Yes, sir.
“ Q. Plow close to the track did you follow up the line of burning grass?- A. About thirty-seven feet, I think, of the track, from the measurement that I have made since.
‘‘Q. What was there between where you say the fire started and the railroad-track, that thirty feet, in the way of vegetation? A. There was a little hedge fence, which has since been taken away.
” Q,. Was the origin of the fire, as you call it, inside the hedge fence? A. It was. What do you mean by inside?
“Q,. On the opposite side of the hedge fence from the railroad-track. A. It was ; yes.
“Q,. How near to the hedge fence? A. I judge within about two feet of the hedge fence.
“ Q,. What was the nature of the vegetation immediately around, this cinder that you saw there? A. There was dead grass and weeds.
“ Q. What was the size of the cinder? A. Oh, I should say about as big as that (indicating).
“Q,. As big as a hen egg? A. No, sir.
‘‘Q,. As big as a walnut with the hull off? A. No, not as big as that.
“ Q,. As big as a hickory-nut? A. About as large as that, I should say; a small hickory-nut.
“ Q,. Was the burnt district continuous from that burnt cinder down to where it stopped? A. Yes; rather from my premises back up.
“ Q,. What was the size of it right near to that cinder? A. The size of the burnt place?
“ Q. Yes. A. Well, it seemed to spread out either way right from that cinder.
“ Q. How was it between the cinder and the hedge ? A. It wasn’t burnt over between the cinder and the hedge.
“ Q. What was the size of the vegetation and the character of it? A. It was dead grass and weeds. This was along in the latter part of March and of course it was dead. It had fallen down on the ground.
“ Q,. Had there been a back-fire burned through the hedge? A. There had not.
“ Q,. Had there been a back-fire at all? A. There had not been any back-fire, at all, seemingly.
“ Q,. What was the character of the hedge fence, high or low? A. It was a little, scrubby hedge fence, three or four feet high.
“ Q. Did you pick up that cinder? A. I did not.
“ Q,. Well, are you right sure, now, that it was a cinder? A. Well, yes, I am sure it was a coal cinder.”
This was all the testimony as to the cause of the origin of the fire.
It is contended that the plaintiff below, having elected in drawing his bill of particulars to point out the specific act of negligence claimed and relied on, should be required to establish it. This is undoubtedly the better practice.
In the case of S. K. Rly. Co. v. Griffith, 54 Kan. 428, 38 Pac. 478, the supreme court said:
“In an action against a railway company by one of its employees to recover damages for injuries occasioned by the negligence of the defendant or its servants, the negligence proven at the trial and found by the jury as a basis for a general verdict in favor of the plaintiff must correspond with the averments of the petition.” See also Railroad Co. v. Owens, 6 Kan. App. 515, 50 Pac. 962.
Under this particular section of the statute, it is only necessary to allege and prove that the fire was caused by the operation of the railway to make out a prima facie case. The specific act of negligence, as alleged in the bill of particulars in this case, was that the fire was caused by the operation of the railway. Does the evidence as set forth in this opinion prove, or tend to prove, that this fire was caused by the operation of the railway? Is it sufficient to cast upon the railway company the burden of showing that it was not the result of its negligence?
In the case of Railroad Co. v. Matthews, 58 Kan. 447, 49 Pac. 602, the supreme court said:
“In an action against a railroad company to recover damages for the destruction of an elevator by fire alleged to have been negligently caused by the company in the operation of its railroad, it is not indispensable to prove by direct evidence that the fire escaped from an engine on the defendant’s road; but if the circumstances shown are adequate to convince reasonable men that the fire was so caused, the jury may properly base a verdict thereon.”
Giving to the evidence in this case the most liberal construction, the circumstances shown are not adequate to prove that the fire was caused by the operation of the road. The judgment of the district court' is reversed.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought in the court below by the heirs at law of one Simeon Bauder, to recover ■certain real estate in Miami county, of which Simeon Bauder ■died seized in the fall of 1860. The plaintiff in error (defendant below) claimed title under an administration sale, after the death of said Bauder, to pay debts due from the •estate.
On the 3d of February, 1870, A. J. Shannon, administrator of Simeon Bauder, deceased, filed a petition in the probate court of Miami county, for an order of sale of real estate to pay debts. The petition stated that the proceeds arising from the sale of .the personal property of the deceased amounted to $31.31; that the personal property on hand was worth $2.05; that the debts amounted to $165, and the costs and accruing costs of administration would be $85 more; that there would not be funds 1n his hands to pay the debts without selling a part of the real estate belonging to the deceased, and that the land was situated in Miami, county. No other description of the real estate was set forth. Thereupon, the court made- an order of publication. On the 21st of February, 1870, upon proof of the publication of the order, according to law, the court made an order of sale. This order fully described the land in controversy. On March 22d, 1870, the sale was approved and confirmed. The administrator’s deed was executed and acknowledged the same day. The plaintiff in error offered to show title under the sale. The court held the administrator’s deed invalid, and refused to receive it in evidence, on the ground that the probate court had not jurisdiction, because the petition to the probate court for authority, to sell the land did not contain a sufficient description of it. Sec. 115, ch. 37, of the act relating to executors and administrators, provides that, “ in order to obtain such authority [to sell the real estate of the deceased] the executors or administrator shall file his petition in the court which issued his letters testamentary or of administration.” Sec. 117 directs, "the petition shall set forth the amount of debts due from the deceased, as nearly as they can be ascertained, and the amount of charges of administration, the value of the personal estate and effects, and a description of the real estate to be sold.” It is well established that when a court has jurisdiction of the subject-matter and of the parties in an action, the orders and judgment of the court are not void on account of mere defects in the pleadings or irregularities in the subsequent proceedings. In selling the real estate of decedent, complete jurisdiction is acquired by filing the petition praying the court to make an order, which under the statute the court is competent to make, and giving the notice of the time and place of the hearing of the petition. The filing of a petition and giving notice to the heirs are jurisdictional acts. The action of the court is upon the petition. All parties interested, after due notice, are required to come in and oppose the application. The statute contemplates a hearing of parties, and an adjudication upon the subject of the petition. Whether the petition is in proper form, or sets forth sufficient facts, are matters for the determination of the court in the exercise of its jurisdiction. Of course, if a mere blank paper is filed as a petition, jurisdiction would not attach, because there would be nothing for the court to act upon; but when a petition contains sufficient matters to challenge the attention of the court as to its merits, and such a case is thereby presented as authorizes the court to deliberate and act, although defective in its allegations, the cause is properly before the court, and j urisdiction is not wanting. This principle underlies all judicial proceedings. The omission of a fuller description of the land in the petition was clearly unintentional, and its mere omission, the petition being otherwise sufficient, did not invalidate the proceedings in the probate court, or render void the deed of March 22d, 1870. The allegation that the land was situate in Miami county was some description, and no property was ordered sold but what was situate in said county. Hence the order to sell really described the property in the petition, but described it more fully, and at greater length, and in such a manner that it could be identified. (17 Mo. 442; 19 Mo. 621.)
Counsel urge that the deed is invalid because the record oí the probate court fails to show any debts or demands allowed against the estate of said Simeon Bauder, deceased. We think this immaterial. The validity of the administrator’s deed does not depend upon the irregularity of the proceedings in that court, but whether jurisdiction was acquired. We hold that the court had jurisdiction. (See Fleming v. Bale, ante, p.88.)
The judgment of the district court will be reversed, and the case remanded for a new trial, in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action on certain promissory
notes. The defendant resided in Crawford county, but being temporarily present in Bourbon county, he was sued in the latter county. A summons and an order of arrest were duly issued and served upon him while he was temporarily present in Bourbon county. This was all done on June 1, 1878. On June 7, 1878, he filed a motion, supported by affidavits, which motions read as follows :
“And now comes the above-named defendant, H. Conklin, by his attorneys, A. A. Harris and W. H. Spencer, and moves the court to vacate and discharge the arrest of said Conklin, defendant, heretofore made herein, and to discharge said defendant from said arrest, and from custody, for the reason that the facts and alleged facts in plaintiff’s affidavit filed herein, on which said order of arrest was issued, claimed to justify the belief in said grounds of arrest set forth in said affidavit, are wholly false and untrue, and that said order of arrest was by said plaintiff wrongfully obtained.
“H. Conklin.
“Per A. A. Harris & W. H. Spencer, his Att’ys.”
Thereupon, on said 7th day of June, 1878, the above motion, came on for hearing'before the judge of the district court of Bourbon county, at chambers, who refused and denied the same, which said ruling is as follows:
“Now, on this 7th day of June, 1878, appeared before me at my chambers in Fort Scott, Kansas, the above plaintiffs, by C. O. French, their attorney; as well appeared said defendant in person and by his attorney, W. H. Spencer, Esq., and thereupon said defendant, by his said attorney, presented me his motion to vacate the order of. arrest heretofore issued herein, supported by affidavits; and plaintiffs also presented their affidavits resisting the same, and it appearing that plaintiffs have had due notice of the presentation of said motion to vacate said order of arrest, and having duly considered the premises and heard arguments of counsel, said motion is overruled and denied. W. C. Stewart,
“Judge Sixth Judicial District of Kansas.”
On July 1, 1878, the defendant appeared specially, by his attorneys, and filed a motion to set aside the service of the summons issued in this case. On September 2, 1878, he again appeared specially, by his attorneys, and filed a motion to vacate the order of arrest issued and served in this case. These motions raised the same question, to wit, that the defendant had been sued in the wrong county, and therefore that the court should not take jurisdiction of the case. The grounds for each of said motions were substantially as follows: “The plaintiffs combined and confederated with one W. P. D. for the purpose and with the intention by fraud and a trick to induce the defendant to come out of Crawford county aforesaid into this (Bourbon) county, so that service of a summons could be made on him in this county,” and “so that he might be arrested on an order of arrest in this action in this county instead of in Crawford county,” “and for no other purpose or reason whatsoever,” and that the defendant, because of these inducements, and for no other reason, went into Bourbon county, where said service and arrest were made.
These motions were heard together on September 20,1878, on the same evidence. The defenses made by the plaintiffs to the motions were as follows: 1. The defendant, by making a general and voluntary appearance in the action and for a purpose other than to contest the jurisdiction of the court, waived all irregularities which may have intervened in bringing the action. 2. The plaintiffs did not directly or indi rectly induce, nor did they use any means to induce, the defendant to come into Bourbon county, so that he might be sued and arrested in that county. Upon the evidence introduced, the court sustained both of said motions — setting aside the service of summons and vacating the order of arrest. Was this error? We think it was. For while the evidence as to whether the plaintiffs had induced the defendant to go into Bourbon county, so that he might be sued and arrested in that county, is very conflicting, and while it is difficult to determine upon which side of this question the preponderance of the evidence lies, yet there can be no doubt upon the other question. The defendant did unquestionably make such an appearance in the action as will preclude him from raising any question as to the regularity of the service of the summons, and the service of the order of arrest. If the defendant had desired to raise the question as to whether he was rightfully sued in Bourbon county or not, he should have raised the question before making any appearance in the case, except to raise such question, and before doing anything that might unnecessarily increase the amount of the costs and expenses, which some person will eventually have to pay. If the defendant had desired to have the service of the summons, and the service of the order of arrest set aside, he should have made motions to that effect, before doing anything else in the case. But instead of doing this, he first made a general appearance in the ease “in person and by his attorney,” for the purpose of contesting the truth of the grounds upon which the order of arrest was issued. He first chose to take his chances upon the merits of the order of arrest, before moving to vacate it upon any technical grounds. And by doing this, he admitted the jurisdiction of the court to hear and determine the matter upon its merits. And now, after obtaining the decision of the court upon the merits of the question, and after causing costs to be made in the case, he cannot repudiate his submission to the jurisdiction of the court. Courts cannot be trifled with in that manner. We think it is a general principle of law, with probably no ex ception, that where a party voluntarily appears to the merits of any controversy, he thereby waives all irregularities which may have intervened in getting him into court. This, how-over, would not prevent the court, in the exercise of a wise judicial discretion, from setting aside any service obtained by any gross abuse of judicial process. We have had occasion to examine similar questions before, and our decisions will be found in the following cases: Hefferlin v. Stuckslager, 6 Kas. 166; Cohen v. Trowbridge, 6 Kas. 385, 393; Hendrix v. Fuller, 7 Kas. 331, 337; Carver v. Shelly, 17 Kas. 472.
The judgment of the court below will be reversed, and oause remanded for further proceedings.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by H. D. Shepard and J. J. Playford against Samuel Marshall and ■others, for alleged damages to certain real estate, caused by the removal of a house therefrom. Judgment having been rendered against Marshall, he now brings the case to this court for review.
It seems from the evidence that Nancy Parks was the ■original owner of the property, but that Shepard and Play-ford held a sheriff’s deed therefor. This deed, was executed April 27, 1874, but was not filed for record at that time. Mrs. Parks was still in the possession of the property when-said supposed injuries occurred, and the plaintiffs were never in the possession thereof. She resided in the house up to-the very commencement of the removal thereof. About April 29, 1874, Mrs. Parks employed a man by the name of Barrett to remove said house, and Barrett engaged Marshall to assist him. On the morning of April 30, 1874, Barrett and Marshall commenced work. They had removed the kitchen, and were raising up the main portion of the house for the purpose of removal, when C. S. Playford, an agent of the plaintiffs, notified them that the property belonged to the plaintiffs, and warned them not to do anything further.. They then quit work and left the premises, taking away with them all their tools, implements, etc., except some poles which Playford requested them to leave. This was about 8 or 9 o’clock in the morning of said 30th day of April. At 3 o’clock that afternoon the plaintiffs filed their said sheriff’s deed for record in the register’s office. Afterward, some other persons removed said house, but it does not seem that either Barrett or Marshall had anything to do with it. Certainly Marshall did not.
The principal rulings of the court below, of which the plaintiff in error (Marshall) now complains, are the instructions given by the court to the jury. The instructions read as follows:
“1-. Gentlemen op the Juey: This is an action for the purpose of recovering damages which the plaintiffs allege they have sustained by reason of the defendants having removed from the premises in Osage county a certain house and kitchen situate thereon. The defendants deny all of the allegations in the plaintiffs’ bill of particulars. This denial on the part of the defendants throws the burden of proof on the plaintiffs, and in order for them to recover they must satisfy you, by a preponderance of the evidence, of such right.
“2. You are the sole judges of the evidence and of the facts proved, and the credibility of the witnesses, and of the weight to be given to their testimony.
“3. The ownership of the property in question being in the plaintiffs, and that the defendant is liable for some dam ages you may consider as proved by the evidence, and therefore the only question for you to determine is, as to the amount of the damage.
“4. If you believe from the evidence that the defendant procured certain persons to assist him in the removal of the house in question, then the defendant will be liable for all the damages done to said property by the defendant or by said persons while in his employ, whether said defendant Marshall was personally present all the time or not.
“ 5. If you believe from the evidence that the defendant was simply employed by ahother party to remove the house in controversy, and that as soon as he ascertained or was notified that the said property was owned by plaintiffs he ceased to participate in anywise in said removal, then the defendant will be liable only -for the amount of damages' done to said property while he was so assisting in said removal.
“6. The plaintiffs’ measure of damages is the actual amount of the injury which they sustained by reason of the removal of the property in question, as shown by the evidence.
“ 7. It is not necessary, in order for the plaintiffs to recover in this action, that notice be given to defendant of their ownership of said property.”
The plaintiff in error claims that all of these instructions, after the first and second, are erroneous; and we are inclined to think that the plaintiff in error is correct. The fourth and fifth, however, are erroneous only because they are misleading. The others are erroneous because they are given upon the erroneous theory that it makes no difference whether Marshall had any notice of the plaintiffs’ interest in the property, or not — that in any event he is liable;. and the sixth instruction says substantially that he is liable -for all the damages, although he did not in any manner participate in the final removal of the main building.
It was not shown that prior to said supposed injuries either Mrs. Parks, or Barrett, or Marshall, or indeed anyone else, except the parties to the deed, evér had any knowledge thereof; nor was it shown that prior to that time either Barrett or Marshall ever had any notice of the plaintiffs’ claim of interest in the property, and the deed was not filed at that time for record in the register’s office, and was therefore void as to Barrett and Marshall. (See § 21 of the act concerning conveyances, Gen. Stat., p. 187; Comp. Laws of 1879, p. 212.) It must be remembered that Mrs. Parks, and not the plaintiffs, was in possession of the property at the time that these supposed injuries occurred, and hence all presumptions of ownership from possession are in favor of Mrs. Parks and those acting under her, and not in favor of the plaintiffs, and her possession was actual. Marshall was not a trespasser, nor a mere wrong-doer. He went upon the property in good faith, at the instance of the person in possession, and in whom, according to the records of the county, the title was vested. Under the facts of this case, as they are now represented to us, we do not think that Marshall is liable to Shepard and Playford in any manner or for any amount. This is upon the theory that, as between these parties, said unrecorded sheriff’s deed must be considered as void, and that the land attempted to be conveyed by it, and upon which said house was situated, still belonged in legal contemplation to Mrs. Parks. That the registry acts apply with all their force and vigor to sheriffs’ deeds as well as to other deeds, we suppose will hardly be questioned. (See the latter part of §459 of the Civil Code, in connection with § 21 of the conveyance act.) Mr. Rorer, in his work on Judicial Sales, says that they do. (Rorer on Judicial Sales, §§ 833-835.) And in the case of Harrison v. Hollis, 2 Nott & McCord (S. C.) 578, it is held that “where a purchaser at a sheriff’s sale does not record his title, it will not affect the title of a subsequent purchaser at sheriff’s sale without notice of the first purchaser’s title.” And in the case of Jackson v. Terry, 13 Johns. (N. Y.) 471, it is held that “a sheriff’s deed for lands in the military tract must be recorded, and if after land has been sold on execution, and a conveyance made by the sheriff, and before such conveyance is recorded, the former proprietor conveys it to a bona fide purchaser for a valuable consideration, who has his deed first recorded, such subsequent purchaser will gain a priority.” These are pretty strong cases — much stronger than are needed for the purposes of this case — and yet we think that they state the law correctly, except in some rare cases where the doctrines of relation and of Us pendens require a different rule. A sheriff’s deed always relates back to some prior and antecedent time. It relates back, when recorded, to the day of its execution, to the day of the sale, to the time of the levy, to the rendition of the judgment; and where the judgment is rendered for the enforcement of some preexisting lien, it relates back to the origin of such lien. But it does not relate back to such preexisting lien so as to make every person, except the lien-holder, a trespasser who uses the property after the creation of such lien. It merely relates back so as to cut off all intervening equities, incumbrances and conveyances, and so as to give to the purchaser a clear and unincumbered title to the property then in existence and to which the original lien attached. It never relates back for the purpose of doing wrong or injustice, but only for the purpose of doing right and justice. It is an equitable fiction, adopted for the purpose of preserving and enforcing liens and equities. But it preserves and enforces only such liens and equities as are known, or such as the law requires shall be taken notice of. As to the doctrine of relation as applied to sheriffs’ deeds, see Freeman on Judgments, § 333; Presnell v. Ramsour, 8 Ired. (N. C.) 505. All persons are required to take notice of all recorded liens, such as mortgage liens, mechanics’ liens, attachment liens, and judgment liens; and they are sometimes required to take notice of the unrecorded equities, from actual facts of which they have had due notice. But no person is bound to take notice of some unrecorded lien of which he knows nothing, or of some secret and unknown equity, undiscoverable by the exercise of reasonable and ordinary diligence. And a sheriff’s deed relates back only to known liens and equities, and not to such as are unknown ánd undiscoverable. The doctrine of Us pendens also requires that all persons, whether parties to the suit or not, shall take notice to some extent of judicial proceedings. This doctrine, however, applies only in cases where the suit is about some specific piece of property, and then only to the extent of preventing a purchaser, pendente lite, from acquiring any interest in the thing in litigation, to the prejudice of the adverse party. (Civil Code, §81; Wade on Notice, ch. 5, §§337-377.) And in no case is a person, not a party to the suit, bound to take notice of judicial proceedings further than to prevent him from acquiring an interest in the thing covered by the litigation. And this we suggest with reference to relation and liens, as well as with reference to lis pendens. Of course if a person has actual notice of judicial proceedings, that is another thing.
The foundation for the plaintiffs’ interest in the property in this case was a statutory lien for lumber. The holder of said lien sued, and obtained judgment against Mrs. Parks, for the amount of the lien. On this judgment an execution was issued, and levied on the property on which this house stood, and the property was sold to the present plaintiffs. By this purchase the plaintiffs obtained an inchoate equitable title to the property. The sale was afterward confirmed by the district court, and by this confirmation the value of their title was enhanced, but still it was only an equitable title. Afterward, the sheriff executed a deed to them for the property, and by such deed their title was still further enhanced. As to all persons who had actual notice of the deed, their title was then complete and perfect, both legal and equitable. (Conveyance act, § 21.) But as to all others, their title was at most only an equitable title. (Tucker v. Vandermark, 21 Kas. 263, 269.) But without notice to others, and without possession, their title was really nothing. As to Marshall, for instance, who had no notice of their title or claim, their title was void, and Mrs. Parks owned the property; except, as we have before stated, Marshall could not have purchased the property of Mrs. Parks, and have procured a clear title to it, on account of said liens, and the rule of lis pendens; but as we have already stated, the plaiutiffs’ title, after they procured said deed, was at most, as against Marshall, only an equitable title; and as they found their claim for damages wholly upon said equitable title, they must be prepared to meet all equitable defenses that may be interposed by Marshall. And we think that the fact that Marshall was not a mere wrong-doer, but that he acted innocently and in good faith, and at the instance of the person who appeared from all the records to be the owner of the property, and who was at the time and had been for years before in the'actual possession of the property, was a good, equitable defense. It does not appear that Marshall was in any respect guilty of negligence; but on the other hand, it does appear that the plaintiffs were guilty of negligence in not having their sheriff’s deed filed for record sooner. If they had had their sheriff’s deed filed for record one day sooner, probably nothing would •ever have been done toward moving said house. Now as Marshall was not a wrong-doer, and as between him and the plaintiffs they were the only parties guilty of negligence, they should bear all the loss that occurred through an innocent mistake.
The judgment of the court below will be reversed, and •cause remanded for a new trial.
Horton, C. J., concurring.
Brewer, J., dissenting.
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The opinion of the court was delivered by
Brewer, J.:
The single question in this case is, whether section 16 of article 2 of the state constitution has any application to city ordinances. The section, so far as it concerns this case, reads: “No bill shall contain more than one subject, which shall be clearly expressed in its title.” The ordinance in question had no title. Was it therefore invalid? We think not. The constitution speaks solely of bills, and an ordinance is in none of the stages of its passage properly called a bill. It is a mere by-law of a corporation, whose power to act and modes of procedure are of legislative creation. The city council is, it. is true, in a limited way, a legislative body, and endowed with certain powers of local legislation, but a constitutional provision directing and controlling the modes of procedure in the general legislature of the state, and prescribing the conditions of its valid action, was not intended for and does not apply to the procedure of the various local and subordinate bodies which it creates. The same question was presented to the supreme court of Indiana, and the same views expressed. (Green v. Indianapolis, 25 Ind. 490.)
The judgment of the district court will be reversed, and the case remanded, with instructions to overrule the motion to quash the complaint.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The contest in this case is between one who claims under the lien of an execution levy, and the holder of a prior but unrecorded mortgage. The judgment was in a county other than that in which the land was situate, and was rendered long after the execution of the mortgage. The levy was made before, but the sale not till after, the record of the mortgage. There was no actual notice of the existence of this mortgage. On the one side it is claimed that by virtue of §21, ch. 22, Gen. Stat., p. 187, which reads as follows: “No such instrument in writing shall be valid except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record,” the mortgage is to be considered as though it had no existence, and the land as free from any incumbrance at the date of the levy, and that the lien then secured by the levy ripened into a title by the sale, and was paramount to the lien created by the subsequent record of the mortgage; and on the other hand it is claimed that the lien of the levy was only upon the actual interest of the judgment debtor in the real estate, and that as such interest was in fact' limited by the mortgage, only such limited interest was seized and bound by the levy.
Of course, this is but part and parcel of a still broader question, and that is, does the lien of an execution levy extend to only the actual, or does it also reach the apparent, title of the judgment debtor? Is the inquiry restricted to the face of the record, or may it pass to the actual facts? Authorities are not wanting to support either view, and cogent reasons may be adduced in favor of each. On the one hand it may be said with force that if the mortgage lien is adjudged paramount, then the section quoted is practically nullified, and an instrument which the statute declares invalid is pronounced valid; and on the other, that if the levy is adjudged paramount, then the statute which authorizes a levy upon the lands, tenements and hereditaments of the debtor is extended so as to sustain a levy upon lands which are not in fact wholly his.
With much hesitation, and after a long and careful examination of the question in its various relations, we have reached the conclusion that the lien of the mortgage must be adjudged prior and paramount. These are the reasons which have controlled us: It gives exact force to the statute declaring to what a judgment lien and an execution levy extend. Judgments “shall be liens on the real estate of the debtor within the county.” (Dassler’s Comp. Laws 1879, p. 656, § 419.) This evidently contemplates actual and not apparent ownership. The judgment is a lien upon that which is his, and not that which simply appears to be his. How often the legal title is placed in one party when the equitable title, the real ownership, is in others. Many reasons induce this — convenience in managing, facility in passing title, number of parties interested, and others needless to mention. And yet the record discloses only the naked legal title. Now if the judgment is a lien upon all that appears, it will cut off all the undisclosed equitable rights and interests. To extend the lien to that which is not, but which appears of record to be the defendant’s, is to do violence to the language. “ Real estate of the debtor” plainly means that which is in fact of or belonging to the debtor. And he who claims under a judgment lien can take no more than the statute gives. The question is not what rights some one else may have, but what lights does he acquire? The answer to this question must first and chiefly be sought in the statute which gives and defines the extent of that lien'. The section defining the extent of the execution levy may not be quite so clear in its indications, and yet, taken in connection with that cited concerning the judgment lien, it is perfectly plain. “All real estate, not bound by the lien of the judgment, as well as goods and chattels of the debtor, shall be bound from the time they shall be seized in execution.” (Dassler’s Comp. Laws 1879, p. 660, § 444.) It might be argued that the words “of the debtor” only qualify the immediately preceding words, “goods and chattels,” and not the prior clause, “all real estate,” etc.; but, comparing the two sections together, it is plain that no larger or other interest is taken by the levy of an execution upon real estate outside the county, than is covered by the lien of the judgment upon real estate within the county. Again, this construction of the extent to which the lien goes was settled early in the history of this court, and has never been departed from. In Swarts v. Stees, 2 Kas. 241, Crozier, C. J., speaking for the court, says: “Their lien,” (i. e., the lien of judgment creditors,) “is upon the lands and tenements of the debtor, and not up m lands and tenements not in fadt belonging to him.” True, the decision in that case was under a different recording act, and much of the argument in the opinion is entirely inapplicable to the present question; but still, the extent of a judgment lien is plainly recognized and stated. See also Harrison v. Andrews, 18 Kas. 542. It may also here be remarked, that we have had occasion to notice the fact that priority of lien or title, even in the absence of actual notice, does not always hinge upon the mere priority of record. Other matters may enter into and affect the question, and equities not shown of record may control. (School District v. Taylor, 19 Kas. 287; Tucker v. Vandermark, 21 Kas. 263.) Again, it may be laid down as familiar law, that a judgment creditor is not a bona fide purchaser. He parts with nothing to acquire his lien. He is in a very different position from one who has bought and paid, or has loaned on the face of a recorded title. The equities are entirely unlike. One has, and the other has not, parted with value upon the face of the record. If the real prevails over the apparent title, the one is no worse off than before he acquired his lien — has lost nothing; while the other loses the value paid or loaned. Hence equity will help the latter,, while it cares nothing about the former. Further, in nearly every state in which an unrecorded mortgage has been postponed to a judgment lien, the statute has expressly declared that such a mortgage shall be void as against creditors; and the courts have laid stress upon this fact in their opinions. Thus, the statute of Illinois, 1845, p. 108, § 23, provides: “All deeds, mortgages or other instruments of writing which are required to be recorded, shall take effect and be in force after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice, until the same shall be filed for record.” It has been decided under this statute that a deed not filed for record is, as to creditors and subsequent purchasers, wholly without effect. (Martin v. Dryden, 1 Gilman, 187; Cook v. Hall, 1 Gilman, 575; Choteau v. Jones, 11 Ill. 300; Kennedy v. Northrup, 15 Ill. 148; Curtis v. Root, 28 Ill. 367; Brookfield v. Goodrich, 32 Ill. 363. See also McNitt v. Turner, 16 Wall. 352.)
To a similar effect is the language of the statutes of Massachusetts, Texas, Alabama, and perhaps other states. The state of Ohio is an exception. The language of her statute is (Swan’s Rev. Stat., pp. 310, 311), “That all mortgages executed agreeably to the provisions of this act shall be recorded in the office of the recorder of the county in which such mortgaged premises are situated, and shall take effect from the time the same are recorded.” The force of this language is somewhat similar to that of our statute, and under it the supreme court of Ohio has held the unrecorded mortgage the inferior lien. (White v. Denman, 16 Ohio, 60; Holliday v. Franklin Bank, 16 Ohio, 534; White v. Denman, 1 Ohio St. 110; Bloom v. Noggle, 4 Ohio St. 45.) It must be conceded that these cases are authority against the view we have taken. Yet it may be remarked that the statute attempts to make the record a part of the delivery and execution ot the mortgage. It is like the rule requiring the mortgage to be in writing. It must be recorded before it is a mortgage. But by our statute the unrecorded mortgage is valid, valid inter partes under all circumstances, and valid as to every one having actual notice. The record is not essential to its existence. But in Missouri we find the very language of our statute. Not merely is the section we have quoted identical with that of Missouri — the sections immediately preceding are alike. As they had been in force in Missouri for many years before they were enacted in. this state, there is weight in the claim of counsel, that under the authority of Bemis v. Becker, 1 Kas. 226, the legislature intended that the same construction should be given to them here as had then been given to them in Missouri. The question has been frequently before the supreme court of Missouri, and the ruling uniform. The earliest case is that of Davis v. Ownsby, 14 Mo. 170, decided in 1851, and we quote at length from the opinion. After going on to show that there would be no question were it not for the recording act, the court says:
“The words of the forty-first section, in declaring that the deposit of the deed for record shall impart notice to all persons of the contents thereof, are explained, in my opinion, by the subsequent words of the same section, which provide that all subsequent purchasers and mortgagees shall be deemed in law and equity to purchase with notice. The obvious meaning of the whole section is, that filing a deed for record imparts notice to all persons who shall subsequently become interested in the title, either as purchasers or mortgagees.
“The forty-second section, in declaring that no such instrument in writing shall be valid, except between the parties thereto and such as shall have actual notice thereof, until deposited for record, is not designed to allpw any person to dispute the validity of an unrecorded deed, unless he is interested in the title under the same grantor. A mere trespasser cannot dispute it. There must be a title for value, under the grantor, to admit of the question being raised.
“Now it will be seen that a creditor, as such, is nowhere alluded to in the statute as a person who is affected by notice, or to whom notice is to be given, and it would plainly be useless to give actual notice of an unrecorded deed to a creditor with a view to affect the person who might afterward become a purchaser under the judgment of the creditors.
“A creditor, by obtaining a judgment, acquires a lien that binds the estate of the defendant against any subsequent act of his, but he acquires no interest or estate in the property. A purchaser of the property under the judgment of the creditor is the first person who acquires an interest in the property, and is the person who is to be affected by notice, either actual or constructive. If he has notice before he assumes the character of a purchaser, he invests his money in a speculation against the deed, and the judgment creditor takes the money upon his judgment. The recording of the deed before the purchase is notice to him.
“I exclude creditors altogether from the above statute, believing that they were never intended to be embraced within its provisions.”
See also Valentine v. Havener, 20 Mo. 133; Stillwell v. McDonald, 39 Mo. 282; Potter v. McDowell, 43 Mo. 93; Reed v. Ownsby, 44 Mo. 204; Sappington v. Oeschli, 49 Mo. 244; Black v. Long, 60 Mo. 181; in all of which the ruling in Davis v. Ownsby was affirmed.
The only other state in which we have found or been referred to a statute exactly like ours is Iowa, in which at one time was in force a section like the one first quoted in this opinion. Under that in Brown v. Tuthill, 1 G. Greene, 189, it was held that a “ lien by attachment'will hold against a prior unrecorded deed.” The section of the statute was soon after modified, and in a case arising under the new law, (Norton v. Williams, 9 Iowa 159,) the court says: “We incline to the opinion that, under the statute of 1843, the case of Brown v. Tuthill is against the current of the decisions.”
The weight of authority, therefore, upon the exact statute before us, is decidedly with the conclusion we have reached. Without extending this opinion, we close by saying that our conclusion gives full and exact force to the statute which creates and defines a judgment lien; that it is in accord with the prior adjudications of this court; that it sustains and enforces the real equities of all parties; and that it is upheld by the decided' weight of authority elsewhere upon the exact question.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
Counsel for plaintiff in error asserts that as Clark, the owner of the premises in controversy, has failed to pay to Jeffries, the holder of the tax deed, the taxes, interests and costs allowed by the court under the provision of §5919, Comp. Laws 1879, p. 997 — presumably because the premises are not worth the amount — that Jeffries is entitled to a general execution against the property of Clark. It follows as a consequence of this claim, that the goods and chattels of Clark can be first taken to pay the taxes, etc.; and that in the absence of goods and chattels, the lands and tenements of Clark may be seized. The section of the statute under which the taxes, etc., were allowed, is as follows:
“If the holder of a tax deed, or anyone claiming under him by virtue of such tax deed, be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax deed, or the party claiming under him by virtue of such deed, before such claimant shall be let into possession, the full amount of all taxes paid on such lands, with all interests and costs as allowed by law up to the date of said tax deed, including the costs of such deed and the recording of the same, with interest on such amount at the rate of twenty per cent, per annum, and the further amount of taxes paid after the date of such deed, and interest thereon at the rate of twenty per cent, per annum.”
The plaintiff.in error obtained all the order he was en titled to at the hands of the court, and no error was committed in refusing an execution against the property of Clark, to collect the taxes from his goods and chattels, lands and tenements. (Babbitt v. Johnson, 15 Kas. 252.)
The principal objection to the order making the successful claimant pay the taxes, etc., before the holder of the tax deed can be ousted of possession as set forth in the cross-petition is, that the description of the land assessed is so indefinite and uncertain that no land should have been sold under the assessment, and that the sale is void. The case of the Comm’rs of Lyon Co. v. Goddard, 22 Kas. 389, is cited in support of this view. But Clark is in no position to avail himself of any such objection to the tax proceedings. The assessment was made by him at a time when he was the duly-authorized person to assess the land. He knew the land; he was its owner; he was acquainted with its situation and precise description. The identical premises mentioned in the judgment were subject to taxation. If the description in the assessment roll was too uncertain or indefinite for the public generally, it did not mislead him. If Jeffries could be ousted of possession, without the payment of táxes, the property would be released from all taxation for the years for which the taxes were paid, solely through the misconduct of Clark. Such a result would violate the well-known maxim, that a party shall not be allowed to take advantage of his own wrong. The doctrine of estoppel applies to Clark in this matter, and his lips are sealed as to any defects in the description in the assessment which he made of his own premises.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
"Valentine, J.:
This was an action for false imprisonment. The answer was a general denial, and a justification, in substance, that the defendant, as marshal of the city of "Wyandotte, a city of the second class, arrested the plaintiff, in said city, under a city ordinance, for drunkenness.
The plaintiff in error, who was plaintiff below, claims that the court below erred in admitting in evidence a certain rec ord. The objection to the introduction of said record, and the exception thereto, are as follows: “To the reading of which extract from said book to the jury as evidence, .the said plaintiff objected; but said objection was overruled by the court, and said extract was read in evidence to the jury, to which ruling of the court, plaintiff excepted.” There is nothing to show for what purpose this record was introduced, and nothing to show for what purpose the plaintiff supposed it was introduced. .The plaintiff now intimates, but he does not say so, that it was introduced to prove drunkenness on the part of the plaintiff. Possibly this may have been the object for which it was introduced, but the record does not so show, and we cannot know that such was the object. Probably it was not necessary to introduce it for any such purpose, for seven different witnesses were examined on the trial, and their testimony probably proved beyond all doubt that the- plaintiff was drunk, as alleged by the defendant. The testimony of said witnesses has not-been brought to this court. It does not appear that the plaintiff objected to the evidence because he thought it would tend to prove that he was drunk. Plis objection might have been because he thought that the record was not properly authenticated, or that it would tend to prove that the defendant was marshal, or that he made the arrest in a judicial proceeding, or thatWyandotte was a city of the second class, or that it had an ordinance against drunkenness, etc. From anything shown to this court, we cannot say that said record could not or might not have been introduced in evidence for some proper purpose. We therefore cannot say that the court below erred in admitting it in evidence. This court has repeatedly decided that, as a rule, a general objection to evidence is not available. (Simpson v. Kimberlin, 12 Kas. 587, and cases there cited; Willis v. Sproule, 13 Kas. 257, 263, 264, and cases there cited; Rheinhart v. The State, 14 Kas. 318, 323; Cross v. National Bank, 17 Kas. 336, 338; K. P. Rly. Co. v. Cutter, 19 Kas. 83, 87, 88.) And all other courts decide the same way. The objection must be so specific that the court may know from the objection what the question is which it is called upon to decide; and unless the objection is thus specific, we cannot assume that the court decided some particular question which it might or might not have decided, and that it erred in its decision. Error is never presumed. On the contrary, it must be affirmatively shown; and before a judgment can be reversed because of alleged error, it must be affirmatively shown that the court has committed some-material error. In this case, even if the court below erred in permitting said record to be introduced in evidence, the error was probably entirely immaterial. ,
The defendant’s answer was sufficient. The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This case is here from an order overruling a demurrer to the petition, and a judgment following for want of an answer.
The facts are these: Plaintiff was the owner of a tract of land. Failing to pay the taxes thereon, the land was sold, and defendant became the purchaser. A tax deed was issued upon such sale. It appeared that a portion of the taxes for which the land was sold was illegal. Within two years from the date of the tax deed, plaintiff tendered a sum large enough to cover all the legal taxes, penalty, interest and costs. The tender was made to the defendant, but was refused; whereupon plaintiff brought his action alleging these facts, keeping his tender good, and praying for a decree quieting his title.
Two objections are made to the ruling of the district court: first, that the fact that a portion of the taxes for which a sale is made is illegal, is no ground for disturbing the title conveyed by the deed; and second, that the tender was not made to the county treasurer. Neither of these objections is tenable. The first is really disposed of by the case of McQuesten v. Swope, 12 Kas. 32. In that case, in an action of ejectment, a tax deed was interposed as a defense, but, it appearing that the sale was for a sum in substantial excess of the legal tax, penalty and costs, the deed was adjudged invalid, and no defense. That was a law action, this one in equity. If the defense failed in that, a fortiori it should in this. There, as here, no statute of limitation gave repose or prevented inquiry back of the deed; and until that statute has run, the sufficiency in form of the deed never prevents inquiry into the validity of the sale upon which it was based. Again, the holder of the tax deed was the proper party to receive the tender. The money was due to him. He had paid the county; no further duty was cast upon any county officer, no suit maintainable to restrain any action by the treasurer. The matter, so far as the title to the land was concerned, was one solely between the parties. If the defendant had been in actual possession, and the action one for the recovery of such possession, the statute provides specifically that the judgment shall not be enforced until payment of the legal tax has been made to the holder of the tax deed. (Comp. Laws 1879, p. 907, §142.) So in an equitable action, the party claiming the title sought to be quieted should receive whatever is rightfully due from the plaintiff, before such title is disturbed.
A tender to the treasurer would avail nothing. He had no title to surrender; he could not quitclaim, neither could he surrender for the defendant or compel him to quitclaim, or surrender.
We think the ruling of the district court correct, and the judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action of mandamus, brought by Duane Hall against J. S. Stewart, to compel Stewart, as •clerk of the district court of Greenwood county, to issue an execution on a certain judgment rendered in favor of the plaintiff in an action of replevin for personal property, in which action Duane Hall was plaintiff and George L. Mitchell was defendant. The judgment in the replevin action reads as follows:
“It is therefore considered, ordered and adjudged by the court, that the plaintiff have a judgment against the defendant for the return of said property, if a return can be had, and for the sum of one hundred and ten dollars, his damages caused by the unlawful taking and detention of said property; and in case said property cannot be returned, then, that the plaintiff have and recover of the defendant judgment for the sum of one hundred and sixty-one dollars, the value of said property, and for his costs herein, taxed at $ — . And hereof let execution issue.”
After this judgment was rendered, the defendant, Mitchell, appeared and paid to the clerk of the court the said sum of $161 and all the costs of the suit, which sum of $161 the clerk paid to the plaintiff, Hall, which sum the plaintiff' accepted and received. Afterward, the plaintiff demanded that the clerk should issue an execution on the judgment, for the collection of said sum of $110 damages, and the clerk refusing, the plaintiff then commenced this action of mandamus against the clerk to compel him to do so. The court below decided the case against the. plaintiff, and in favor of the -clerk; and the plaintiff now, as plaintiff in error, brings the case to this court for review.
Now, as said sum of $161 was actually paid by the defend.ant (Mitchell) and received by the plaintiff (Hall), we think that it must be held that the parties agreed that the property •could not be returned, and the case must be decided upon -that theory; and the judgment provides that “in case said property cannot be returned, then that the plaintiff recover of the defendant judgment for the sum of $161, the value of said property,” and nothing is here said about damages — that is, that while the judgment provides that if the property can be returned, the plaintiff is to have a “judgmentfor a return of the property and for $110 damages, yet if the property cannot be returned, then he is to have a “judgment” for only $161, the value of the property, without any damages. This is evidently the construction given to said judgment by the clerk and by the court below; and who is better able to know what was intended by the judgment, than the clerk and the judge of the. court that • rendered it? We think, however, that the judgment is fairly open to at least two different constructions. We think it is open to be construed as the clerk and the judge of the court below construed it, and we also think that it is open to be construed as the plaintiff in error construes it; but as the judgment is ambiguous, and as it is fairly open to the construction given to it by the clerk and the court below, the plaintiff is surely not entitled to a writ of mandamus to compel the clerk to issue an execution upon it. He must seek some other remedy. The clerk will not be compelled to take the risk of issuing nor the sheriff of executing an execution on such an ambiguous judgment. If the plaintiff was entitled to such a judgment as he claims that this is, he should have had it so rendered at the time it was rendered, and if a mistake was made in rendering it, he should have immediately given notice to the opposite party and have had the judgment corrected.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This case has been in this court before. (Manville v. Felter, 19 Kas. 253.) The case was commenced before a justice of the peace, by Lucas Felter, both as a civil and a criminal action. It was commenced, however, under chapter 113 of the General Statutes of 1868, p. 1095, (Comp. Laws of 1879, p. 988,) which seemingly authorizes the joinder of such actions. Peter Manville was the defendant in this double-headed action. A trial was’had in the case, and the justice rendered a judgment against the defendant • for damages and costs, and that he be fined and imprisoned. The defendant then appealed to the district court. In the district court the case was again tried, and judgment was rendered against the defendant for,two dollars damages, and five dollars statutory penalty, and he was fined one dollar, and costs were adjudged against him. He then brought the case to the supreme court, both-on appeal as a criminal action and •on petition in error as a civil action. In the supreme court the entire judgment of the district court was reversed, because of said improper joinder of a civil with a criminal cause of action, and the cause was remanded to the district court for further proceedings. When the case was returned to the district court, Felter (one of the plaintiffs in the action) filed his motion in writing to amend the bill of particulars by striking out those portions of the same which made the state a party plaintiff. The state (the othgr plaintiff in the action) did not make any further appearance in the action by ^counsel or otherwise. The defendant appeared, and resisted the motion. No evidence was introduced on the hearing of the motion, and the record does not show what, if any, reason was given why the motion should be sustained. The motion was overruled. ■ The defendant then moved the court in writing to dismiss the action, and the court sustained the motion. Felter then brought the case to this court for review on petition in error only.
We think it is true that when the case was returned from the supreme court to the district court, it then stood for disposition there the same as when it was first taken there from the justice’s court, except that a large amount of costs had accrued in the action since it was first taken to the district court, which costs must be taken into consideration on the hearing of any motion to amend the pleadings or any motion to dismiss the action.
The bill of particulars in this case which Lucas Felter asked to amend, so as to convert it into a bill of particulars in a civil action, and making himself the plaintiff, was entitled as follows: “The State of Kansas, plff., v. Peter Manville, deft. — Plff’s bill of particulars and affidavit.” Then ■comes the body of the bill of particulars, which states facts sufficient to constitute a civil cause o.f action in favor of Felter, and a criminal cause of action in favor of the state. Felter is designated several times in the bill of particulars as “the complainant,” but never as the plaintiff. The bill of particulars is sworn to by Felter, and made an affidavit. The .prayer for relief is as follows: “Wherefore this complainant prays that the said Peter Manville may be arrested and dealt with according to law; that this complainant have and recover of said defendant, Peter Manville, the sum of five dollars, together with the amount of damage which complainant has sustained by reason of the wrongs and trespasses hereinbefore complained of.” Signed by counsel for “Lucas Felter, complainant.” The damages sustained by Felter, according to the verdict of the jury in the district court, were $2. The costs must have been very large, probably from •eighty to one hundred dollars. The record in the other case shows them to have been $83.40, (19 Kas. 255); though the record in this case does, not show how much they were. .Some of these costs were probably made in the civil branch of the case, and some of them in the criminal branch; but how much in one or how much in the other, we cannot tell, .and probably the district court itself could not have told. But as Felter, by his motion, desired, in effect, to dismiss the ■criminal branch of the case, and to leave only the civil branch thereof for further prosecution, he should of course have been required (as the complainant and prosecuting witness in the criminal branch of the case) to pay all costs made in the criminal branch, if not all costs made in both branches. But would the court have been required to go into any nice ■calculations for the purpose of determining how much of the •costs was made in one branch and how much in the other, merely for the purpose of dismissing one branch of the case •and of permitting Felter to further prosecute the other branch for the recovery of his two dollars damages and statutory penalty? We think the court might in its'discretion have permitted Felter to amend the bill of particulars upon payment of all the costs made in the action, or all made in the-criminal branch thereof. Indeed, my brethren think the court ought to have permitted the amendment to be made. They believe that in view of the peculiar language of the statute-under which this action was commenced, which statute seemingly authorizes the joinder of a civil with a criminal action,, the court should have permitted the amendment to be made upon the payment of such proportion of the costs already accrued as could reasonably be chargeable to the criminal branch of the case. In my opinion, however, the court acted right. I think the court exercised a wise discretion in refusing to permit Felter to amend his pleadings, and in dismissing his entire action. After the action was dismissed,. Felter could have commenced another action for his two dollars damages and statutory penalty, if he had so chosen. It seems, however, that he preferred to prosecute for his two dollars damages, etc., in this action. He wanted to dismiss the-criminal branch of the case, and to prosecute the civil branch in this action, but the court said that both branches must be dismissed — that both should go together; and I think the-court was right. At least, I cannot say that the court below-abused its discretion in refusing the amendment and in dismissing the action. I think that thejudgment of the court below should be affirmed; but in this my brethren disagree with me,, and therefore the judgement of the court below will be reversed, and cause remanded for further proceedings.
Brewer, J.:
If this had been an ordinary case of a joinder of a civil and a criminal action, I should be disposed to agree-with what my Brother Valentine has said, but both actions are under a peculiar statute, which in the same section gives-both a civil and a criminal action, and in language calculated to mislead one not stopping to carefully consider the inherent differences in the nature and forms of procedure, as to the right to unite the two. . Under those circumstances, it seems to me that justice requires that the amendment asked for should have been allowed, upon the payment of such propor tion of the costs as were fairly chargeable to the criminal branch of the case. I do not know that the court was obliged to enter into any nice calculation as to the division of costs. The party making the mistake has no peculiar claims, and must be content if the court makes a reasonable division, and should be compelled to pay before amendment is allowed. I think the judgment should be reversed, and the case remanded with instructions to permit the amendment upon the payment of costs as aforesaid.
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Per Curiam:
It appears from the record, that after the introduction of the evidence in the case, the plaintiff in error (defendant in the court below) requested the court to charge the jury in writing; whereupon the court requested said party to write out any instructions she desired to have given, which she refused to do, and thereupon the court refused to charge the jury in writing, but did charge the jury orally. Upon the authority of City of Atchison v. Jansen, 21 Kas. 560; the A. T. & S. F. Rld. Co. v. Franklin, ante, p. 74, and § 275 of the code, (Comp. Laws 1879, pp. 637, 638,) the judgment of the district court against the plaintiff in error must be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
Valentine, J.:
We think the bill of particulars in this case is amply sufficient. (Brenner v. Weaver, 1 Kas.488.) But the plaintiffs in error, who were defendants in the justice’s court, ask: “ Who, or what are‘the people of the state of Illinois?”’ They were certainly the payees of the note which the plaintiffs in error- — -defendants in the justice’s court— executed; and the defendants ought to know who such payees are. The defendants admitted, by executing said note to the plaintiffs, that they, the plaintiffs, had the power to contract and be contracted with, and to contract and be contracted with in Kansas, and at “Newton, Kansas.” And they also admitted that the plaintiffs ha*d the power to receive and own and hold a promissory note, and that they could give an equivalent therefor; for the defendants expressly admitted in the note, that they, the defendants, had “value received” for executing the note. And parties that can do all that is admitted the plaintiffs could do, can presumably sue on their note. The defendants, by executing said note, admitted,prima Jade at least, that the payees thereof could sue on it. The defendants in the justice’s court claimed that the plaintiffs were “The State of Illinois,” and the plaintiffs seemed to admit it; and the case was tried upon that theory, and as though the plaintiffs were “ The State of Illinois.” But we can hardly see that it could make any difference whether they were “ The State of Illinois,” or some county, or corporation, or copartnership in such state. In any event they could take a promissory note in Kansas for money due them; and in any event they could sue on the note in Kansas when it became due; and in any event, so far as the laws of Kansas are concerned, they could employ, attorneys at law, of Kansas, to attend to their suit in Kansas. If the state of Illinois should take a promissory note in Kansas for money due to it, and should afterward sue on the note in Kansas, it would be treated by the courts of Kansas as though it were a corporation existing under the laws of the state of Illinois.
This action was prosecuted for the plaintiffs in the justice’s -court, by Nichols & Greene, attorneys at law, of the state of Kansas. This the defendants claim was wrong. They claim that Nichols & Greene had no right or power to appear for the plaintiffs. Now presumably, they had such right and power. Where an attorney at law appears in court to prosecute or defend for a party, it will always be presumed, in the absence of anything to the contrary, that he had full right, power and authority to do so. And in this case it was not shown that the attorneys appearing for the plaintiffs did not have the right and the power and the authority to so appear for them. On the contrary, the possession of said note by the attorneys, and the evidence of one of such attorneys, pretty clearly showed that they did have ample authority to appear for the plaintiffs.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by S. A. Brown & Co. against P. M. Moore and wife, M. Gr. Moore; John P. Sharp and wife, Abbie V. Sharp; and Ency A. Silsby, and John Silsby, heirs-at-law of Horace H. Silsby, deceased. The action was brought for the purpose of subjecting certain real estate to sale for the payment of a judgment previously recovered by said S. A. Brown & Co. against said P. M. Moore and one William Bacus. Said real estate formerly belonged to said P. M. Moore; and Moore and wife, by a deed absolute upon its face, conveyed the same to John P. Sharp; and Sharp and wife, by a deed absolute upon its face, conveyed a portion thereof to Horace H. Silsby; and Silsby dying intestate, his interest in the property descended to his wife, said Ency A. Silsby, and his only child, said John Silsby. The plaintiffs alleged in their petition that these deeds were without consideration, and made for the purpose of defrauding creditors. They also alleged all the other facts necessary for the statement of a good cause of action. The case was tried by the court below, without a jury, and the court made special findings of fact and conclusions of law. The court below found that said deeds, although absolute upon their face, were in fact mortgages, made to secure liabilities of Moore to Sharp, and of Moore to Silsby, and that the liabilities of Moore to -Sharp had been extinguished, and that the liability of Moore to Silsby, secured by such deed, was at the time of the trial only $560. The court also found that both of said deeds, or mortgages, were made for the purpose of defrauding Moore’s creditors. The court rendered judgment in favor of Mrs. Silsby (who was found to be the party beneficially interested in the Silsby claim), and against Moore, for $560, and made her claim the prior lien on said real estate conveyed to Silsby. The court, also rendered judgment in favor of the plaintiffs, S. A. Brown & Co., and against Moore, for $4,400, and made their claim a lien upon all the real estate conveyed by Moore to Sharp, but only a second lien upon that portion thereof which Sharp conveyed to Silsby. No judgment was rendered in favor of Sharp, for the court found that all the liabilities secured- by the deed to him had been extinguished.
Is this judgment erroneous? All the defendants below have brought the case to this court, and all contend that the judgment is erroneous; but we cannot suppose that they complain of the judgment as between- themselves, for they have all employed the same counsel, and all are represented by the same counsel in this court. "We might also say that, as John Silsby, who is a minor, is represented in this court by his mother, said Ency A. Silsby, guardian, we cannot suppose that there is any conflict of interest between them. The question then in this court is simply this: Did the court below commit any substantial error as between the plaintiffs below (defendants in error) and any of the defendants below (plaintiffs in error)? The plaintiffs in error claim that it did, as follows: in admitting incompetent evidence, in overruling a demurrer to evidence, in making findings of fact against the evidence, and in overruling the defendants’ motion for a new trial.
The first of said supposed errors is as follows: Previous to the trial, one of the plaintiffs’ counsel, Samuel C. Junkins, took the deposition-of the defendant John P. Sharp. This deposition was taken in the ordinary way, and was signed by Sharp. On the trial, Junkins was a witness, and gave the following among other testimony: “The circumstances were: I was taking depositions as an attorney, on behalf the plaintiffs. His ['Sharp’s] statements were reduced to writing by justice, P. Graves. I was present. He made the statements in response to questions propounded by myself, as attorney in this case, and he signed it. It was read to him before he signed it. His statements were reduced to writing as fast as he made them. I sat by and saw the pen of the justice, and saw that he recorded each sentence correctly. That writing is here. I have it in my hand. Have read it since it was taken.” The plaintiffs then put the following question to the witness, ■Junkins: “How does that compare with what he said?” And ■the witness answered, “It is the same.” The deposition or writing was then offered in evidence by the plaintiffs, as the written admissions of .the defendant Sharp, and the court permitted the same to be read. Sharp resided in the county where the action was tried, and was then present at the trial, in obedience to á subpena issued on behalf of the plaintiffs. The defendants now, as plaintiffs in error, complain of said •question, “How does that compare with what he said?” and also complain of the reading of said deposition. We might here say, that after said deposition was read, Sharp was examined as a witness, and went over again all that he had stated in his deposition. We would hardly think that any one could suppose that the judgment of the court below could be reversed on account of said rulings. There was certainly no substantial error in permitting said question to be asked and answered. And there was no error in permitting said deposition of the defendant Sharp’ to be read in evidence, as his admissions. Neither was there any error in permitting the deposition of the defendant Moore to be read in evidence, as his admissions. Said depositions were signed respectively by Sharp and Moore.
The other questions may all be considered together. They ¡amount to this: Did the evidence authorize the judgment rendered? We think it did. That said deeds were executed for the purpose of defrauding Moore’s creditors, we think there can be no doubt. And they were executed specially to defraud these plaintiffs. Said deeds were also unquestionably intended, as between the parties, to be only mortgages. The deed from' Moore to Sharp was made to secure some comparatively small liabilities of Moore to third parties, on which Sharp was a security; and both instruments were made in the form of deeds absolute, the better to place the property beyond the reach of Moore’s creditors. The court below, in rendering-judgment, treated the.Silsby claim as honest and bona fide up to the amount of $560. And this we think is as much as the Silsbys can claim. We think the findings of the court below with reference to fraud, are sufficiently sustained by the evidence. We agree with-counsel for defendants (plaintiffs in ■error), however, as to the law concerning fraud. We do not ■think that any substantial error was committed in this case, and therefore the judgment of the court below must be-affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
On March 22d, 1878, one R. L. Huston filed a bill of particulars with J. F. Himelwright, a justice of the peace of Neosho county, in the following words:
“ The said plaintiff claims a judgment against the defendants for the sum'of $5, with interest from the 20th day of March, 1878, as evidenced by the following bill of damages, hereto attached and made a part of this petition. The said plaintiff states under oath that on or about the 20th day of March, 1878, one sorrel horse three years old, also one bay colt one year old, the property and in the charge of the said defendants, E. Barton and John Barton, did enter upon the premises of the plaintiff, and damaged him to the amount of $5, for which he asks judgment.”
Summons was served upon E. Barton and John Barton, on March 23,1878; and on March 27,1878, the defendants filed the following answer: “We, the defendants in the case of Huston v. Bartons, do hereby enter a full denial against each and every allegation in plaintiff’s bill of particulars.” Trial was had on March 27th, and judgment rendered against defendants for $1, and $14.30 costs. On April 9, 1878, the justice issued an execution upon the judgment, directed to Salathiel Hodgin, a constable specially appointed in the case. On the same day, the constable levied the execution upon a sorrel horse as the property of defendants, which was claimed by Mrs. M. K. Barton, the wife of E, Barton. On April 22, 1878, Mrs. Barton commenced, before L. Cone, another justice of the peace of Neosho county, her action to recover the possession of the horse from the constable. Trial was had on May 3, 1878, and judgment rendered in her favor for the property. On May '9, 1878, Salathiel Hodgin perfected an appeal, and on July 12, 1878, the case was called for trial in ithe district court of Neosho county. Mrs. Barton failed to appear, and the action was dismissed at her costs, taxed at $32. • On July 13, 1878, a second execution was issued on the judgment of March 27, 1878, in the case of R. L. Huston v. E. and John Barton, by J. F. Himelwright, as justice of the peace, directed to Salathiel Hodgin. The constable again levied upon the sorrel horse claimed by Mrs. Barton, and took it into his possession. On August 6, 1878, Mrs. Barton commenced this action, before said L. Cone, against the special constable and the justice, to recover $86.15 damages, alleging that the defendants had wrongfully taken possession of the horse, and detained it twenty-eight days; that she was the owner thereof; and further alleging that the judgment of March 27, 1878, in favor of R. L. Huston against E. Barton and John Barton, was void. She recovered a judgment before the justice, and an appeal was taken to the district court of Neosho county. At the first term of that court, J. F. Himelwright filed an affidavit for a continuance, on account of sickness. The court granted the continuance, but taxed the costs of the term, $41, against the defendants. At the trial term, April, 1879, the defendants filed a motion to dismiss the action, for the reason that the justice of the peace before whom the action had been commenced had no juris diction of the subject-matter. The court overruled the motion. Trial was then had before the court with a jury. Judgment was rendered for plaintiff for one cent damages, and $173.40 costs. The defendants excepted, and bring the case here.
Upon the trial, and especially in the instructions, the judgment of March 27th, 1878, in Huston v. Barton, figured conspicuously. The court charged the jury that the judgment was void, and that no valid execution could issue thereon. This was erroneous. The theory of this ruling seems to have been, that the bill of particulars filed with J. F. Himelwright, on March 22d, 1878, did not state facts to constitute any cause of action, because it did not allege that a herd law was in force in Neosho county, or that the plaintiff’s premises were inclosed with a lawful fence. Granting that the bill of particulars in the justice’s court was defective, yet as the justice had jurisdiction of the subject-matter of the action and of the persons of the parties, and as the bill of particulars contained sufficient matter to challenge judicial examination, jurisdiction was not wanting. The judgment, at most, was erroneous — not void. (Burke v. Wheat, 22 Kas. 722, 724; Bryan v. Bauder, ante, pp. 95, 97.)
Again, on the trial, the plaintiff introduced the record of the replevin action against Salathiel Hodgin before L. Cone, justice of the peace, over defendants’ objections. As that case had been appealed, and the case dismissed at plaintiff’s costs, the testimony was immaterial, and only tended to confuse the jury; it ought not to have been received. After being received, upon the production of the entire record the evidence concerning that suit should have been withdrawn from the jury, as defendants requested. This was not done.
The counsel for plaintiffs contends, that even conceding the errors of the trial court, no prejudice resulted to defendants, as the jury returned in their special findings, that the plaintiff was the owner of the horse. The rule is, that where the jury may have been misled by erroneous instructions and may have based their verdict upon them, it is the duty of this court to reverse the judgment, even though there are other matters upon which the jury might properly have returned the same verdict. Further, it is quite evident from a perusal of the record that the finding of ownership by the jury was largely induced by the erroneous instructions. (Shed v. Augustine, 14 Kas. 282.) Not only were the instructions concerning the Huston judgment misleading, but the manner in which the court treated the replevin suit was likewise prejudicial.
As to the points raised by counsel of defendants concerning the taxation of costs upon the continuance at the November term of court for 1878, and the refusal of the court at the April term for 1879 to sustain the motion to dismiss the action, we perceive no error in the rulings. The court had the power to tax the costs to- the party applying for the continuance; (§316 of-the Code.) As to the question of jurisdiction, the appeal and appearance for all purposes in the district court conferred upon that court jurisdiction. (Reedy v. Gift, 2 Kas. 392; Jones v. School District No. 47, 8 Kas. 362; Shuster v. Finan, 19 Kas. 114; Miller v. Bogart, 19 Kas. 117; Wood v. O’Ferrald, 19 Ohio St. 427; Herrington v. Heath, 15 Ohio, 483.)
Other errors are alleged, but we think sufficient has already been said concerning the important and material questions involved; but we do not wish by silence to approve of much of the evidence which was permitted to creep into the case against objections.
This case, and the original case of Huston v. Barton, very forcibly illustrate the unprofitableness of litigation over trifling matters, and the urgent duty of conscientious counsel te advise clients against rushing into the courts to collect or contest insignificant claims. In the first case, the damage was one dollar, and costs have accrued in that case, and the replevin suit growing out of it, of upward $70. In this case, the damage was only one cent, yet costs have accumulated to the amount of $200 and over, and these may be doubled, if the litigation is continued with the spirit which has thus far characterized it. While the struggle of a suitor for his legal rights, even at a pecuniary sacrifice, is often highly commendable as a duty he owes to himself and society, (for manly resistance to wrong and injustice is worthy of commendation,) yet when a legal contest is simply carried on from a miserable mania for litigation, out of pure love of wrangling, or from an irresistible desire to inflict pain and trouble on an opponent, the action of the. suitor is more censurable than praiseworthy.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This is an appeal by the state from a ruling of the district court quashing an indictment. The indictment was for selling liquor without a license, and charged the selling “without taking out or then having a license as grocer, dramshop-keeper, or tavern-keeper.” The point made was, that in the city of Ottawa, a city of the second class, where the selling was charged to have been done, the defendant might lawfully sell liquor under a license in form as for keeping a saloon, or simply for the sale of liquor, and that as this was not negatived in the indictment, it was defective. The 'dramshop act prohibits the sale of liquor without a license-as grocer, dramshop or tavern-keeper. The act concerning cities of the second class, a subsequent statute, grants exclusive authority to the city council to levy and collect a license tax on several avocations, among them that of saloon-keeper and liquor-seller. It is not denied that a license must be obtained, or questioned that the indictment would have been good, if it had charged the selling to have been without any license therefor, but it is insisted that in such cities the form of the license need not be that of a grocer’s, dramshop or tavern-keeper’s license, but may be in the general form of a license to sell liquor. It is said that the pleader, having added unnecessary words of description and limitation, is concluded by them, and, having negatived only certain forms of license, and not having negatived all the forms of license, has not affirmatively charged a crime. It is familiar law, that where words of limitation or description are used in an indictment or information, the state is concluded by them. Thus, in case of the larceny of a horse, if the charge is of stealing a horse without any description of color, evidence is competent of the stealing of a horse of any color, but if the charge is of stealing a white horse, evidence of the stealing of a black horse is incompetent. In such case the state, by its language of description, has limited the inquiry to the larceny of a horse of the particular color. We think that rule applicable here. The state charged the selling not generally without any license therefor, but specially without a license in either of three forms. The inquiry would therefore be limited to those three forms; but in a city of the second class the license need not be in either of these, and if it were shown that he had no license in either of those, it would not follow that he had no license in another form, and therefore it would not appear that he had sold without any license, or had violated the law in selling. That a license not in either of the three forms named, but generally to sell liquor issued in a city of the second class, would be valid, and a protection to the seller, was decided by this court in the case of Williams, et al., v. Louis, 14 Kas. 605.
It is true that the essence of all these various forms of license is the authority to sell liquor, and this fact was recognized in the case just cited.. So that if the indictment had negatived simply this essential element, it would have been sufficient as hitherto stated. But where the pleader rests on the forms and not on the essence, he must include all the forms. Suppose the indictment had charged the selling without a tavern-keeper’s license only, would it not instantly occur to any one that the defendant might have a grocer’s license as named in the dramshop act, and so be guilty of no violation of the law ? The essence of each is the authority to sell liquor, but charging the want of one does not negative the existence of the others. And the act concerning cities of the second class must be construed in connection with the dramshop act, being equally expressions of the legislative will; and as new forms of license are named in the former, the indictment should have negatived those forms.
The case of The State v. Pittman, 10 Kas. 593, in principle sustains this decision, though some expressions in the opinion are apparently opposed. There the pleader named one tribunal, and charged that there was no license from that. As license might have come from another tribunal, we held the indictment insufficient, because it did not- negative a license from such tribunal. That was the point decided. The question now before us was not in our minds, and any expressions then used, apparently sustaining the sufficiency of this indictment, must be construed as applicable solely to the question then under consideration.
The ruling of the district court will be affirmed.
All the Justices concurring.
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Per Curiam:
The above case is affirmed, upon the authority of Knox v. Dunn, 22 Kas. 683, and Funk v. James, 22 Kas. 685.
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The opinion of the court was delivered by
Valentine, J.:
The. plaintiff in error states the facts of this case, as follows:
On the 21st day of May, 1879, the plaintiff in error, as plaintiff, made and filed in the district court in and for Atchison county, Kansas, his petition against the defendant, in which he charged that he was in possession, under a lease, of the Lindell hotel, located on lot 7, in block 28, in the city of Atchison; that in order to properly carry on the business of said hotel, it was necessary to use the basement of the building for the purpose of a laundry; that he had fitted up the south fifty feet of said basement as a laundry, at an expense of about $500; that his leasehold interest in said building, and the furniture owned by him therein, was of the value of $8,000.
He further alleged that it was necessary, in order to properly use said basement, to have the light and the air from the whole of the east side of such basement, and that plaintiff is entitled to the light and air from the whole of the east side of said basement; and that well knowing the plaintiff’s right in the premises, said defendant wrongfully and illegally, about the month of October, 1878, erected and put up a high board obstruction, greatly injuring plaintiff; that on or about the 31st of May, 1879, said defendant wrongfully and unlawfully threw down the fence along the south part of such basement, and is threatening to put up and maintain along the east side of said basement, for the length of about sixty feet, a board obstruction of the height of about sixteen feet, thereby wrongfully, unlawfully, maliciously and wickedly ■cutting off the air and light from plaintiff’s laundry and basement, as he is rightfully entitled to enjoy.
Said petition also contained a statement that he had been •damaged, and a prayer for relief by injunction, and for damages. The petition was sworn to by plaintiff, and an application made to the Hon. J. J. Locker, judge of the probate court, which was granted on plaintiff’s executing a bond in the sum of one hundred dollars. On the 25th of June, the defendant filed a motion to vacate the temporary injunction, alleging — first, that the allegations in the petition are insufficient; second, that the alleged facts are untrue. And on the same day the defendant filed another motion to vacate and ■dissolve the temporary injunction, setting down as grounds therefor — first, that the order was wrongfully obtained, by misrepresentation and concealment of facts; second, that said! order was obtained without any proper proofs of any facts upon which an injunction could lie; third, that there is no-proper verification to the petition; fourth, that the petition and affidavit, if all the statements therein contained are taken as true, do not state facts sufficient to entitle the plaintiff to an injunction, either temporary or otherwise.
Defendant also filed a demurrer to plaintiff’s petition, alleging that the said petition does not state facts sufficient -to constitute a cause of action of any kind in favor of plaintiff and against defendant; and does not state sufficient facts upon which to base an order of injunction, either temporary or otherwise.
. Upon the hearing of said motions and demurrer, the court sustained the same, and the plaintiff brings the case here for review.
This statement of the facts of the case is at least fair toward the plaintiff in error.
Did the court below commit any error? We think not. It certainly did not commit any error in dissolving said temporary injunction; for, according to the affidavits, read in evidence on the hearing of the motion to dissolve, the defendant owned the land or lot where said fence was torn down, and where the other fences were erected and about to be erected, and had a perfect right to do just as he did, and as he was about to do. But did the court err in sustaining the defendant’s demurrer to the plaintiff’s petition ? There is more ground for supposing that the court erred in sustaining said demurrer, than there rs for supposing that the court erred in dissolving said injunction, for, in dissolving the injunction, the court had an opportunity to see both sides of the question, but in sustaining the demurrer, the court could know the facts only as they were stated in the plaintiff’s petition. But did the court err in sustaining the demurrer to the petition, even with only this one-sided showing? In the plaintiff’s petition there was a conspicuous absence of important facts, which we would naturally expect to see in such a petition. There was an apparently labored effort to avoid stating some of the facts which should have been stated in detail. No one can tell from the petition who owned the land where the defendant was engaged in tearing down and building up fences. The plaintiff does not say that he owned it, or had any lease thereon, and he does not say that the defendant did not own it, or that he did -not have full and complete control thereof. The facts of the case, as shown from the petition and said affidavits, are that the plaintiff had a lease of the hotel, and full charge thereof, while the defendant owned the land where he was at work tearing down and building up fences, and had complete charge thereof. The plaintiff’s allegation, in his petition, that the defendant was “thereby wrongfully, unlawfully, maliciously and wickedly cutting off the air and light from the plaintiff’s laundry and basement, as he is rightfully entitled to enjoy,” was evidently based upon an erroneous supposition that because the plaintiff had leased the hotel from somebody, he thereby had the unquestioned right to all the air and light from all the surrounding country, unobstructed, undisturbed and uninterrupted by anybody, or from any source. .He evidently did not take into due consideration the rights of others, who might fortunately or unfortunately have property near him, or in that vicinity; and hence his omission of these very important facts. Now, in the absence of these facts, we think the-court below did right in sustaining said demurrer. Inadvertent omissions of facts from a pleading, especially where the omitted facts are unimportant, or where they may be covered by broad and general allegations, are generally looked upon leniently by the courts, and especially so after verdict; but a studious omission of important facts from a pleading, cannot be favored; and this is especially true where the-pleading is attacked before trial, and by demurrer. It is an old rule, that upon a demurrer only such facts as are well pleaded can be considered as true. ■ And in such a case as-this, we think the rule ought to be strictly adhered to.
We suppose that there can be no such thing as “ancient lights” in Kansas; and that the doctrine of “ancient lights”' cannot be recognized by our courts. And hence a petition which sets forth nothing else for a cause of action than the obstruction of “ancient lights,”, does not state any cause of action.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Mason, J.:
Merrell Gage has presented to the auditor a claim against the state for $1,500 on account of a statue of Lincoln recently erected on the statehouse lawn, and has requested its allowance. The auditor, being in doubt as to the legal authority for the payment of the claim, has declined to approve it until the question shall have been judicially determined. For the purpose of such determination this proceeding has been brought, a mandamus being asked by the attorney-general, requiring the auditor to approve the claim and issue a warrant therefor, and the state treasurer to pay it. The case is submitted upon the pleadings. It is agreed that the plaintiff has done everything possible on his part to entitle him to the payment asked, and the only doubt in the matter 'is whether any valid appropriation has been made therefor. If so, it is by virtue of action of the legislature which is recorded as chapter 346 of the Laws of 1917, reading as follows:
“House Concurrent Resolution No. 25.
“Relating to an appropriation for purchasing and aiding in the erection of the Merrell Gage statue ■ of Abraham Lincoln upon the capítol square.
“Whereas, The sculptor, Merrell Gage, has produced an excellent statue of the great emancipator and typical American,' Abraham Lincoln, the completed model of which is on exhibit at Mr. Gage’s studio, 1027 Fillmore street, in the city of Topeka; and
“Whereas, Art critics, as well as persons who- knew President Lincoln' personally, declare the same to be an accurate and lifelike reproduction of President Lincoln; and,
“Whereas, The .Woman’s Club of the city of Topeka, and many other public spirited citizens of such city, have expressed the desire to have the statue erected on the capítol square, and have expressed a willingness to supply, or to procure the supply of by the city of Topeka, one-half of the cost of such statue and the erection thereof on the capítol square, provided the state of Kansas is willing to permit the same to be placed there, and to pay the other half for the cost and erection of such statue: therefore,
“Be it resolved by the House of Representatives of the State of Kansas, the Senate concurring therein:
“Section 1. That the sum of fifteen hundred dollars is hereby appropriated for the purpose of assisting in the purchase, erection and unveiling of a bronze statue of Abraham Lincoln, created by Merrell Gage, said statue to be erected and located upon the statehouse lawn or square, and at such place thereon as shall be designated by the Executive Council of the state, and the Executive Council are hereby authorized and empowered to permit the erection of said statue upon the statehouse lawn or square; provided, that the amount herein appropriated shall be in full of all claims or demands of every kind or character against the state; provided further, that said sum shall not be available or paid until the city of Topeka or the citizens of the city of Topeka shall have made provisions, in full, for the entire purchase price, erection and expenses incident to the- unveiling of said statue; or, shall produce and file with the auditor of state a receipt in full from the said Merrell Gage together with a bill of sale transferring to the state of Kansas all of his right, title and interest in and to said statue; and; also, a receipt or receipts showing that all expenses of every kind or character incident to the erection, and unveiling of said statue has been fully paid and satisfied by the city of Topeka or the citizens of the city of Topeka.
“Sec. .2. That the auditor of state is directed to draw his warrants in favor of Merrell Gage for the sum and the purposes herein- named, and upon his verified voucher therefor, accompanied by the -receipt and bill of sale provided for in section 1 of this act.
“Sec. 3. This act shall take effect and be in force from and after. its publication in the official state paper.
“Approved [by the governor] March 3, 1917.
“Published in official state paper March 7, 1917.”
Our constitution-provides that “no money shall be drawn from the treasury except in'pursuance of a specific appropriation made by law” (art. 2, § 24), and that “no law shall be enacted except by bill” (art. 2, § 20). The same article of the constitution, however, recognizes that a law may be created by joint resolution. The section relating to the exercise of the veto power of the governor reads as follows, the last sentence having been added in 1904:
“Every bill and joint resolution passed by the house of representatives and senate shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he approve, he shall sign it; but .if not, he shall return it to the house of representatives, which shall enter the objections at large upon its journal and proceed to reconsider the same. If, after such reconsideration, two-thirds of the paembers elected shall agree to pass the bill or resolution, it shall be sent, with the objections; to the senate, by which it shall likewise be reconsidered, and if approved by two-thirds of all the members elected, it shall become a lazo; but in all such cases the vote shall be taken by yeas and nays, and entered upon the journal of each house. If any bill shall not be returned within three days (Sundays excepted) after it shall have been presented, to the governor, it shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent its return, in which case it shall hot become a law. If any bill presented to the governor contains several items of appropriation of money, he may object to one or more of such items, while approving the other portion of the bill; in such case he shall append to the bill, at the time of sig-ning it, a statement of the item or items to which he objects, and the reasons therefor, and shall transmit such statement, or a copy thereof, to the house of representatives, and any appropriation-.so objected to shall not take effect unless reconsidered and approved by two-thirds of the members elected to each house, and, if so reconsidered and approved, shall take effect and become a part of the bill, in which case the presiding officers of each house shall certify on such bill such fact of reconsideration and approval.” [Italics added.] (Const, art. 2, § Í4.) ,
This section as originally framed resembled the corresponding section in a number of state constitutions, as well as that of the federal constitution, but the phrase “and joint resolution” was new, although in Michigan the words “and concurrent resolution” were used (art. 4, § 14), and in Maine “or resolution having the force of law” (art. 4, §2). The veto clause of the federal constitution is made applicable to “every order, resolution, or vote to which the concurrence of the senate and house of representatives may-be necessary (except on a question of adjournment)” (art. 1, §7). The section quoted expressly declares that if a joint resolution which has been disapproved by the governor afterwards receives a two-thirds vote in each house “it shall become a law.” The inference seems clear that a joint resolution which is approved by the governor after its adoption by the legislature thereby becomes a law, although this is not declared in so many words. If a law can be enacted only by bill, and a joint resolution may become a law, it would seem that a joint resolution must be a bill, or may in some instances be regarded as a bill. And such is said to be the congressional practice in this section of a well-known work which dates back to 1856:
“A form of legislation, which is in frequent use in this country, chiefly for administrative purposes of a local or temporary character, sometimes for private purposes only, is variously known, in our legislative assemblies, as a joint resolution, a, resolution, or a resolve. This form of legislation is recognized in most of - our constitutions, in which, and in the rules and orders of our legislative bodies, it is put upon the same footing, and made subject to the same regulations, with bills properly so called. In congress, a joint resolution, which is the name given in that body to this kind, of legislation, is there regarded as a bill.” (Cushing’s Law and Practice of Legislative Assemblies, 2d ed., §2403.)
Whether or not legislation may ordinarily be accomplished by means of the adoption of a proposition submitted in the' form of a resolution, we conclude that the process used in the case now under consideration amounted to the enactment of a law by bill. While the instrument acted upon by the two houses and the governor described itself as a concurrent resolution, it had every characteristic, in form and treatment, of such a bill as by the combined action of the legislature and the governor becomes a law. It had a title which clearly expressed its subject to be the appropriation of money to pay for the Lincoln statue. It was read on three separate days in each house. It contained a provision declaring that “this act” should take effect upon its publication. In each house it received the votes of a majority of the members elected, and the result of the roll call was entered in full on the journal. It was submitted to and approved by the governor, and published in the official state paper and in the statute book. “Joint resolutions,” which may sometimes become laws, are, required by the constitution to be adopted by a majority of the membership in each house (art. 2, § 13), by a recorded vote (art. 2, § 10), as well as to be approved by the governor, and “acts” of the legislature must take effect at a prescribed time, and be published (art. 2, § 19) ; but, save for these requirements, no mere resolution needs to have a title, to be read on three separate days, to show when it takes effect, to be- adopted by a yea and nay vote entered on the journal, to be approved by the governor, of to be published. The treatment given this measure seems to show that it was regarded by the legislature and the governor as a “bill.” It ought to be given effect as such, unless some insuperable obstacle is interposed. The fact that it is styled a' concurrent resolution, rather than a joint resolution or bill, is not in itself especially important. It should be classified by its essential qualities rather than by what it happens to have been called.' All that it lacks of the necessary characteristics of a bill is a literal compliance with the requirement that “The enacting clause of all laws shall be ‘Be it enacted by the legislature of the state of Kansas.’ ” (Constitution, art. 2, § 20.) In lieu of this, however, it has one reading “Be it resolved by the house of representatives of the state of Kansas, the senate concurring therein.” • The courts are divided in opinion on the question whether a provision of the constitution prescribing a form of enacting clause is mandatory or directory. (Note, L. R. A. 1915 B, 1060-1063.) Those which consider it mandatory hold the entire absence of the clause to be fatal (same note, p. 1061), and such is the practice in this state. (In re Swartz, Petitioner, 47 Kan. 157, 27 Pac. 839.) But even where that rule obtains, a substantial compliance is all that is deemed necessary. (Note, L. R. A. 1915 B, 1061-1062.) The turning point in the present controversy is whether the words: “Be it resolved by the house of representatives of the state of Kansas, the senate concurring therein,” convey essentially the same meaning as “Be it enacted by the legislature of the state of Kansas,” In a familiar case a conviction on a charge of felony was set aside because the word “the” was omitted from the concluding clause of an indictment, so that it read “against the peace and dignity of state” instead of “against the peace and dignity of the state.” It was there conceded that a substantial conformity to the requirement of the constitution was all that was necessary, the court saying:
“It is plainly manifest that, the definite article ‘the’ which should immediately precede the word ‘State’ being omitted, the conclusion to the indictment in the case at bar falls far short of indicating the power or authority against which the facts charged in the body of the indictment constitute an offense. . . . It is clear that the omission of this word not only changes the sense but the very substance of the clause. . . . In the use of the definite article ‘the’ immediately preceding ‘State’ in the conclusion prescribed by the Constitution we have pointed out the State whose peace and dignity has been offended, and by the omission of such definite article we have a conclusion that does not designate the power or authority against which the offense is committed. ... If this conclusion embraced language similar to that pointed out in the cases to which we have heretofore deferred, such as ‘against the peace and dignity of our said State,’ or ‘against the peace and dignity of State of Missouri,’ it might be very properly ruled that such language was at least equivalent to the language prescribed by the Constitution, for the reason that it indicated the power and authority against which the offense as charged in the body of the indictment constitutes an offense.” (State v. Campbell, 210 Mo. 202, 224, 225.)
Whatever may be thought of the application there made of the rule, the statement of the general principle is obviously sound — that the test to be applied is whether the language employed conveys the same meaning as the language prescribed. In the matter now under consideration, if the expression used had been “Be it legislated by the legislature of the state of Kansas,” or “Be it enacted by the house of representatives and senate of the state of Kansas,” it would hardly be doubted that the requirement of the constitution was substantially met. We think that the clause, “Be it resolved by the house of representatives of the state of Kansas, the senate concurring therein,” unequivocally indicates that the two houses comprising the Kansas legislature unite in giving their approval to the sections which follow it, with the purpose to' give them the effect which they purport to have, and that this is all that could have been accomplished by a literal adherence to the. formula employed by the constitution.
A requirement of the constitution that “The style of the laws of the state shall be, ‘Be it enacted by the legislature of the state of Mississippi,’ ” was held to be met by the use of the word “resolved” in the place of “enacted,” the court saying: “The word ‘resolved’ is as potent to declare the legislation with as the word ‘enacted.’ ” (Swann v. Buck, 40 Miss. 268, 293.) That decision was followed, the language quoted being expressly approved, in Smith v. Jennings, 67 S. C. 324. In May v. Rice, Auditor, 91 Ind. 546, a joint resolution for the appropriation of money was held to be ineffective, but it was not in fact approved by the governor, and in the opinion stress was laid on the consideration that the constitution made no provision for the presentation of a joint resolution to the governor for his approval, the case of Swann v. Buck, supra, being distinguished on this ground and also upon a difference in the language of the provision regarding the enacting clause.
In at least two instances, the Kansas legislature has attempted to appropriate money by the adoption of a measure described as a joint resolution. (Laws of 1889, p. 421; Laws of 1891, p. 416.) It may be doubted whether either attempt was technically successful, for neither document contained any provision as to the time of its taking effect, or for its publication, although each was in fact published in the statute book. Here, however, inasmuch as we conclude that every requirement of the constitution has been substantially complied with, the result is a valid enactment.
Judgment is rendered in favor of the plaintiff, determining that the claim should be approved and a warrant issued and paid. The issuance of a writ will of course not be necessary.
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The opinion of the court was delivered by
Marshall, J.:
Th'e Kansas State Fair Association appeals from a judgment rendered against it for negligently injuring Alfred Scott.
1. The association urges that the plaintiff was guilty of contributory negligence, and, for that reason, no judgment could be properly rendered in his favor. This question was presented to the trial court in several ways.
On September 17, 1915, the association was holding a free state fair on the Kansas state fair grounds at Topeka, and had advertised that automobile races would occur on that day. The plaintiff, then a boy ten years old, with a couple of companions attended the fair and the automobile races. These races occurred on a half-mile race track, which had been built and was ordinarily used for horse racing. The plaintiff and his companions sat on some boxes near the curve at one end of the track. A large number of other people occupied positions near the plaintiff. Around the track a post and woven-wire fence had been built; the plaintiff was near this fence. The association, through its officers and employees, gave repeated warnings to all who were near the plaintiff that the place occupied by them was dangerous, and that the racing automobiles were liable to leave the track, go through the fence, and kill and injure some of those who were standing near. The plaintiff heard these warnings, but he remained at or near the place then occupied by him. One of the racing automobiles left the track, went through the fence, and injured the plaintiff. The plaintiff lived in the city of Topeka. He was a boy of average intelligence, and was acquainted with automobiles and with the danger encountered by getting in front of one.
The association argues that because of the intelligence of Alfred Scott, because of the dangerous place occupied by' him, and because of his remaining in that place after repeated warnings, he was guilty of such contributory negligence as prevents his recovering damages for the injuries he sustained.
Contributory negligence, like negligence, is ordinarily a question for the jury. Under the circumstances disclosed by the evidence abstracted, the question of the contributory neg ligence of the plaintiff was a question to be determined by the jury as a question of fact. The circumstances did not disclose that the plaintiff was guilty, as a matter of law' of such contributory negligence as would prevent his recovery. In Ratcliffe v. Speith, 95 Kan. 823, 149 Pac. 740, this court said:
“Whether . . . the plaintiff, who was over thirteen years old and who started across the' street without looking for or observing the approach of the automobile, which was coming at a moderate rate of speed, was guilty of contributory negligence, were questions for the determination of a jury.” (Syl. ¶ 2.)
A like conclusion was reached in Routh v. Weakley, 97 Kan. 74, 154 Pac. 218. (See, also, K. P. Rly. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730; Bess v. Railway Co., 62 Kan. 299, 62 Pac. 996; Coy v. Railway Co., 74 Kan. 853, 86 Pac. 468; Note to “Contributory Negligence of Children,” L. R. A. 1917F, pp. 10, 66.)
2. Another matter urged is .that the plaintiff settled with the other defendants in this action, and that he cannot now recover against the fair association. The action was brought against the Kansas State Fair Association, H. L. Kirkpatrick, S. E. Lux, and W. W. Webb. A compromise was affected with S. E. Lux and W. W. Webb. Under that compromise they paid to the plaintiff $2,666.67, and were released from further liability. However, the plaintiff .made a distinct reservation to sue the Kansas State Fair Associaton, notwithstanding the settlement with Lux and Webb. Both the settlement and the reservation were oral. The argument is that such a reservation should be reduced to writing. That argument is not good. There is no law which requires that such a reservation shall be in writing. An oral reservation is as good as a written one,. This court has held that such a reservation is good, and that it preserves the right of the injured party to proceed against the joint tort-feasor with whom no settlement has been made. (Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784; City of Topeka v. Brooks, 99 Kan. 643, 164 Pac. 285; Feighley v. Milling Co., 100 Kan. 430, 165 Pac. 276.)
No question is presented concerning the negligence of the association.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
J. F. Walz brought an action against Peter Keller to recover rent due upon a farm lease. Keller’s wife and two mortgagees of the crop were also made defendants. Walz also secured a judgment in the justice of the peace court in a forcible detainer action for possession of the- farm. The latter action being appealed to the district court, the two actions were there consolidated and tried as one. Plaintiff appeals from the judgment in defendant’s favor.
In 1908, defendant had entered into á contract with Mary L. Burpee by the terms of which she agreed to sell the land in question, situated in Trego county, to him for $2,700. He occupied it until January 24, 1911, when he was in default to the extent of about $900, having paid $700 on the purchase price. He and his brothers then entered into a contract with plaintiff by which the latter was to sell them certain land in Gove county for $30,000 and, as part of the consideration therefor, defendant (his wife joining with him) assigned to plaintiff his interest in the Burpee contract.
On April 1, 1914, defendant and his brothers being in default about $4,500 on the Gove county land, plaintiff and defendant then adjusted matters between them by releasing each other from all liability on the Gove county contract, and entering into another contract in which defendant agreed to purchase the Trego county land from the plaintiff for $2,265, payable in seven annual installments of $325 each, commencing October 1, 1914, with interest at six per cent. Strict compliance with its terms as to the times of making payments was made a condition of the agreement. The defendant and his wife and children have occupied the land as a homestead since May, 1914. On October 1,1914, defendant failed to make the payment then due and notice to quit the premises was served upon him by plaintiff. Defendant asked for further time, and on October 2, 1914, they entered into another written agreement under which the contract of purchase made April 1, 1914, was surrendered to plaintiff, and it was provided that it might be redeemed on the following conditions:
“If the second party shall on October 1st, 1914, or on October 1st, 1915, make payment in full to the said party of the first part of all principal payments due at the time of such payment on contract for sale above mentioned, dated April 1st, 1914, then the,said first party agrees to renew the said contract of sale or execute a new one under like terms and conditions.”
It was further provided that the defendant should pay, not later than October 30, 1914, the sum of $67.95 as interest due under the contract of purchase, and that a failure to make such payment in time should render the new contract null and void. At the time this agreement was made the lease on the land was executed. The interest payment of $67.95 was not made by defendant, and on November 3, 1914, plaintiff sent defendant a letter chiding him for failing to pay the interest and declaring that he considered the contract of October 2, as well as the contract of purchase mentioned therein, to be void. The action for rent was commenced August 13, 1915, and the forcible detainer action was begun on September 7, 1915. No payments were made by defendant on the contracts nor were any taxes paid except the last half of those of 1913; but on September 27, 1915, he tendered to plaintiff $876.42 as' the amount due October 1, 1915, on the contract of purchase, together with taxes paid by plaintiff. The defendants in their answers admitted the execution of the lease and the nonpayment of rent, but relied on the contract of purchase, stating that the land was acquired for a homestead, and that the defendant’s wife had never consented to the surrender of the contract nor to the execution of the lease, nor conveyed away her interest in the land.
The court ruled that when Peter Keller and his family took possession of the land under the contract of April 1, 1914, it became a homestead, and that as his wife was not a party to the subsequent negotiations and had never consented to any modification of the original contract or to a surrender of her homestead rights, the lease was a nullity and the original contract was still in force. The notices were held to be insufficient, one because it was premature and the other because of indefiniteness. The court further held that the second contract was a recognition that the first was still in force and that, by the second, plaintiff had waived the provisions of the first as to the times of payment of principal and interest, and also that it operated to extend the times for some of the payments. .
It is contended by plaintiff that there is inconsistency in the ruling that the contract of October 2 is valid enough to extend the times of. payment of principal and interest provided for in the first contract, but invalid as to the cancellation of the first contract and as to that provision of the sec-end which makes nonpayment of interest at the new times fixed a ground of forfeiture. The .second contract is wholly void as against the homestead interest, as is also the contract of lease. A homestead right attaches to an equitable interest as well as to a fee-simple title. It has been held that a leasehold interest, whether it be for ninety-nine years or for one year, will support a homestead claim. (Hogan v. Manners, 23 Kan. 551.) In Moore v. Reaves, 15 Kan. 150, it was held that a contract of purchase such as the one in question was sufficient to uphold the homestead right, and that when the land is actually occupied by the family the husband cannot transfer his interest even conditionally without the consent of his wife. In another case, where a son acquired an equitable interest in land owned by his father through ,the care and support of the father, and with his wife and children occupied it as a homestead, the son was induced to sign a lease under which he was to use the land until a fixed time, when he was to give it up and yield possession of the same to the father. The court held that.the lease was void as a transfer or release of the interest of the son for the reason that the homestead right had attached and that the wife had not signed the lease nor given her consent to its execution. (Holland v. Holland, 89 Kan. 730, 132 Pac. 989.) For the same reason the contract of surrender as well as the lease executed by- Keller on October 2 must be held to be void. The homestead right was in no way affected by the negotiations and agreements' between the purchaser and seller to which the purchaser’s wife gave no consent. The trial court rightly found that the first contract still, subsists and that the defendants were not released from its obligations and liabilities.
By that contract the rights of the parties must be measured, and the homestead right is, of course, held subject to its terms and conditions. Although the property is a homestead, the purchaser and his wife cannot keep the land and also the money which he agreed to pay for it, if the seller chooses to enforce the obligations executed under the contract of purchase. The statute provides that . ■. no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the.purchase of said premises, or for the erection of improvements thereon,” etc. (Gen. Stat. 1915, § 4697.) Plaintiff contends that the homestead right cannot be set up as against the seller in this proceeding since the purchaser is in default for the purchase money. The exemption may be claimed in any proceeding except from a sale for taxes, for obligations for purchase money, or for the erection of improvements. The actions brought by plaintiff, as we have seen, were not for the recovery of purchase money nor to obtain a judgment for the sale of the premises, but they were based on agreements that are absolutely void.
The defendants had a right to assert the claim of a homestead interest, and the judgment upholding that claim is affirmed.
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OPINION ON REHEARING.
The opinion of the court was delivered by
Dawson, J.:
In the opinion in this case handed down in June (101 Kan. 4) an excerpt of appellant’s testimony taken from the transcript was quoted as evidence in support of defendant’s contention that appellant Rodgers retained his interest in the cattle when they were sold to Rawlins. At the rehearing the court has been advised that this testimony had reference to a phase of the lawsuit not before this court on appeal. There was, however, pertinent evidence sufficient to support defendant’s contention on the matter under review. As was said in our original opinion:
“Other features of the evidence were, that the freight bill on the cattle from El Paso to Dalhart was $1,600; that in the presence of a witness, who was the president of a Hutchinson bank, a conversation occurred at the sick bed of Slavens, where Rodgers explained that he was the owner of a half interest in the cattle sold to Rawlins, and that the interest of Slavens, which was the $1,142 which he had advanced on the original purchase price, and his share of the profits by the sale to Rawlins, $800, should be paid to the Hutchinson bank for the benefit of Slavens. To another witness Rodgers asserted that he had a half interest in the cattle. Rodgers received all the cash paid by Rawlins; Slavens none.” (p. 7.)
Elsewhere it appears in Slavens’ eross-exmination:
“Q. You knew Rodgers was only acting as a commission man? A. No, sir, he owned a half interest in these cattle.”
This accords in part with Rodgers’ testimony, where he ¡stated that it was a half interest in the cattle which Slavens '.sold to Rawlins.
On October 21, 1911, Rodgers wrote to Rawlins:
“I know that it was understood the day the sale was made, that you were only buying one-half interest in the cattle.”
On December 22, 1911, Rodgers wrote to Rawlins:
“When Mr. Slavens sold you the cattle I owned a half interest in them at that time, I supposed I was out of the deal. . . . As it now stands I do not know whether I own a one-sixth [?] interest in the steers or not.”
It is needless to rehearse the evidence at greater length. It has been thoroughly considered; and notwithstanding some conflict of evidence and some evidence to the contrary, the court holds that it was amply sufficient to prove defendant’s contention that Rodgers was interested as a principal throughout the entire transaction involved in this cattle deal; that he owned a half interest in the cattle when he and Slavens bought them, and that he retained his half interest after Rawlins acquired the interest of Slavens; that when he paid the note sued on he paid his own and Rawlins’ debt; and, so far as the pleadings, evidence and findings in this case disclose, the defendant Slavens owed Rodgers nothing — either as maker, surety, or indorser, and the net result in the district court was in substantial accord with the demands of justice. The judgment is again affirmed.
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-8,
29,
-36,
-4,
7,
-114,
-74,
-78,
-121,
60,
-112,
30,
-13,
-121,
-76,
117,
-51,
-30,
92,
69,
26,
-101,
-121,
-44
] |
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